TCS Daily


The Neglected Point of Abu Ghraib

By Greg Buete - May 21, 2004 12:00 AM

Currently, there is much confusion and dispute about what is and is not abusive treatment. Some activists consider sleep deprivation to be abuse while the Pentagon lawyers do not. Some news anchors consider forced kneeling or even nakedness to be torture while some talk radio heads do not. Whether a Guantanamo detainee or Iraqi POW, however, I think most Americans begin to say "too far" upon seeing photographs of naked prisoner pyramids or reading stories of glow-stick sodomy. All responsible parties agree that the perpetrators of these perversions should be punished.

But by concentrating only on the varieties of abuse we miss the forest for the trees. While significant to debate the variety of interrogation, and when lawful interrogation slips into abuse, we should not overlook in the equation the importance of the variety of the combatant -- lawful versus unlawful.

What makes a combatant lawful? According to Article 4A2a-d of the Geneva Convention Relative to the Treatment of Prisoners of War lawful combatants must meet four conditions: they must fall into a responsible command and control structure; wear a distinctive insignia recognizable at a distance (such as a uniform); carry their arms openly; and fight "in accordance with the laws and customs of war."

Applied to today's climate, the article discounts from Geneva coverage terrorist groups such as al Qaeda for not meeting those four conditions.

Now, of course, there are more articles in the Geneva Convention than just Article 4A2a-d, and even subsections of Article 4 not mentioned here. Some might advocate that al Qaeda operatives, Taliban members or Iraqi insurgents are all fully protected because they could be described as "members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." (Article 4a3)

But such an argument is nonsense. Why would the authors have bothered to define the terms in Article 4A2a-d if members of regular armed forces in 4A3 could disguise themselves as civilians, hide weapons, operate as rogues, and slaughter noncombatants on impulse yet still be protected by the articles they defy?

At Abu Ghraib

More complex, however, is how Article 4A2a-d applies to the Iraqi prisoners at Abu Ghraib. Some of the Iraqis captured did abide by those four stipulations, yet others did not. Many Iraqi insurgents, and certainly foreign nationals fighting in Iraq, hide weapons in mosques and wear no distinctive insignia recognizable from a distance. They conceal bombs in commercial vehicles and detonate them to impact the civilian population. They operate as rogues.

The argument has been made that the Pentagon started down the slippery slope of abuse by not affording all enemies of the state, starting with detainees in Guantanamo, Geneva protection across the board. But the reverse is true. The advocates vying for such universal protection push us down a slippery slope by morally equating lawful to unlawful combatants.

This week's New York Times, for instance, sought to compare US soldiers' abuse of Iraqi prisoners with the CIA's reported treatment of top al Qaeda commanders, including Khalid Sheik Mohammed, the mastermind of 9-11. Under the headline "Harsh CIA Methods Cited in Top Qaeda Interrogations" the Times explained that inquiries into Iraqi prison abuses "may lead to examinations of the CIAs handling of the Qaeda detainees." In Khalid Mohammed's case the CIA employed "graduated levels of force" including "water boarding," in which he was made to believe he would drown.

We should shed no tears over the "harsh treatment" of Mr. Mohammed. What methods do we employ to interrogate al Qaeda commanders who may have imminent knowledge of another catastrophic attack on US soil? Take away their ice cream privileges? By his choice Khalid Mohammed openly disregarded all rules of war.

Beyond legalities, there is a far more important reason the US military should separate lawful from unlawful combatants -- incentive. Indeed, if Khalid Mohammed is afforded the same protection as a professional soldier what is any future combatant's incentive to follow the recognized rules of war? Without such a distinction count on the rules of war being further blurred.

The US government should clearly advertise as strict policy that it will not provide Geneva protection to any combatant who does not follow Article 4A2a-d, whether they are in Iraq, Afghanistan or elsewhere. Combatants across the world need to know in advance that if they do not adhere by Article 4A2a-d there will be negative consequences far beyond those of the captured professional soldier. Above all else, the unlawful combatants in al Qaeda and countless terrorist clans around the globe need to fear capture. There should be no reward of equal protection for unlawful combatants. Doing so only sends them a message that their tactics are legitimate.


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