Conventional War

Steven R. Ratner argues that the Geneva Conventions provide bedrock principles applicable in any armed conflict and that the United States should "reaffirm… its commitment to the conventions" ("Think Again: Geneva Conventions," March/April 2008). I fully agree with Ratner’s basic point and wish to leave no doubt that the United States remains absolutely committed to its obligations under the Geneva Conventions. Yet even though Ratner correctly recognizes that the conventions were drafted chiefly for wars between states, he underestimates the difficulties in applying them to conflicts with nonstate actors.

First, Ratner argues that "the rules apply," but he acknowledges that only a single article of the Geneva Conventions — Common Article 3 — applies to conflicts with groups such as al Qaeda. Common Article 3 provides important baseline safeguards, but it offers no guidance on critical questions relating to conflicts of this nature, including who may be treated as enemy combatants and what process must be provided to determine whether an individual is a combatant. That is not to say that the Geneva Conventions as a whole are "obsolete" or "quaint" — just that almost none of their provisions applies to conflicts with nonstate actors.

Second, Ratner approves of some European countries’ treatment of terrorism as a law-enforcement matter. But in the cases he cites, domestic criminal law clearly applied to the acts committed; they were perpetrated on European territory, and defendants, witnesses, and evidence were readily available. The United States agrees that in such cases (like the U.S. prosecution of Zacarias Moussaoui), law enforcement can be an appropriate tool. In cases where the terrorism suspects are captured or detained by military forces outside the United States, however, the criminal law framework is often neither applicable nor feasible.

Third, Ratner’s statement that Guantánamo detainees exist in a "legal vacuum" fails to take into account the steps the United States has taken to implement the protections of Common Article 3 and to establish legal and administrative procedures where the law of war framework is silent. Every detainee in Guantánamo is entitled to a status determination and can appeal that determination to a federal judge, as most have. The Bush administration has worked hard to create the elements of a domestic legal framework that addresses questions the Geneva Conventions do not.

Finally, there is a growing recognition on both sides of the Atlantic that current criminal law and law of war rules are imperfectly suited to the challenges that our countries face in dealing with nonstate actors. Several European countries are reconsidering their laws with a view to providing more robust preventive detention of would-be terrorists — recognizing, in the words of German Interior Minister Wolfgang Schäuble, that "the fight against international terrorism cannot be mastered by the classic methods of the police."

Additionally, in 2007, the Foreign Affairs Committee of the British House of Commons wrote that the Geneva Conventions "lack clarity and are out of date" and called for them to be revisited. The 9/11 Commission also noted the haziness of the legal rules applicable to the detention of captured terrorists and recommended that the United States work with allies to develop a common international approach. Doing just that remains one of the administration’s top international legal priorities.

— John B. Bellinger III
Legal Adviser to the Secretary of State
U.S. Department of State
Washington, D.C.

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Steven R. Ratner replies:

I welcome John Bellinger’s statement of the United States’ commitment to the Geneva Conventions, as well as his own personal role in the Bush administration. His emphasis on the "difficulties in applying them to conflicts with nonstate actors," however, somewhat misstates the nature of the problem. For anyone captured in the conflict in Afghanistan, the conventions have generally clear rules. Even if there are gaps when it comes to suspected terrorists, the conventions set only a baseline standard and do not require the treatment the United States has afforded detainees. The administration can thus overcome any ambiguities by making it a matter of policy to treat all detainees according to the Geneva Conventions. Had President Bush listened to then Secretary of State Colin Powell and career military officers in 2002 and made such a policy call — one that has a clear precedent in the POW treatment the United States afforded captured Vietcong — he could have preserved U.S. security without harming its reputation. Applying the Geneva Conventions is not a seal of approval for conduct, because detainees can still be prosecuted for war crimes.

Although Bellinger is correct that Common Article 3 is silent on the classification and release of detainees, the administration could have convened the rudimentary "competent tribunals" provided by the conventions. Instead, after two years of waiting and prodding by the U.S. Supreme Court, it settled on the Combatant Status Review Tribunals, which are barred from granting POW status. As for appeals of the tribunals’ decisions, the administration intensely lobbied the U.S. Congress to deny most appeals in the 2006 Military Commissions Act and has urged the Supreme Court to maintain the status quo.

I agree that a law-enforcement approach may not always be possible when governments are unwilling or unable to prevent or punish terrorism. But the mere fact that suspects and evidence are abroad has never precluded American prosecution of terrorism cases, as the convictions of Fawaz Younis (captured by the FBI near Cyprus and tried for a hijacking in Lebanon), Mir Aimal Kasi (captured in Pakistan and tried for the murder of two CIA employees in Virginia), and Ramzi Yousef (captured in Pakistan and tried for the 1993 World Trade Center bombing) attest.

Finally, Bellinger is right that some new thinking is needed, whether regarding preventive detention or consensually reaching new understandings of the Geneva Conventions. But the same British House of Commons report that he cites for this need also said the United States "risks undermining" the conventions through unilateral interpretations. A key way to restore the tattered reputation of the United States is by reversing post-9/11 detention practices and taking seriously the views of not only America’s friends who care equally about combating terrorism, but its own military — which requires the protection that comes when the conventions are observed.