NEAL CONAN, host:
This is TALK OF THE NATION. I'm Neal Conan in Washington.
Last night, the White House sent a revised proposal to Congress on the treatment and interrogation of terror suspects. We don't know the content of the proposed changes yet or whether they may lead to a compromise. Many in Congress argue that the United States must strictly adhere to the terms of the Geneva Conventions. The White House contends that it does not intend to rewrite Geneva but rather to clarify it.
Common Article 3 states that signatories may not treat prisoners of war in a humiliating and degrading manner. At a news conference last week, the president described that provision as vague and urged Congress to specify what interrogators may and may not do.
As that debate continues, it will be helpful to learn more about the history and the application of the Conventions: what they were intended to do and how well measures adopted shortly after the end of the Second World War apply in the 21st century. How was Geneva applied in Korea, in Vietnam, in the Middle East, Africa, the former Yugoslavia and both wars against Iraq?
Later we'll talk with author Max Brooks about his new book World War Z, and your letters. But first, if you have questions about how the Geneva Conventions were written, what they actually say, and how they've been applied, our number here in Washington is 800-989-8255. That's 800-989-TALK. The e-mail address is email@example.com.
We begin with Robert Goldman, a professor of law at American University Washington College of Law. He's with us here in Studio 3A. Good of you to join us today.
Professor ROBERT GOLDMAN (Professor of Law, American University): Delighted.
CONAN: There is I guess an impression that the Geneva Conventions were written to apply to two countries in an armed conflict, that they really were not intended to apply to situations like we see in a war on terror against an al-Qaida.
Prof. GOLDMAN: Well, one has to understand that there are two concepts of different armed conflicts that are embodied in the Geneva Conventions. One is war between states, which is covered in Common Article 2 of the Geneva Conventions - the traditional international armed conflict of the kind, for instance, that we recently had when the United States took military action with its coalition against Afghanistan and again with Iraq.
The other is what is known as a non-international armed conflict. A non-international armed conflict would be, for instance, a situation of insurrection or rebellion: 40 years civil war, for instance, in Colombia, the war in El Salvador, war in Angola and so forth. These are recognized categories of armed conflict.
There is a good deal of discussion today, and indeed at the time of the announcing of the war on terror, that the war on terror can't be a war because terror is either a tactic or a method of warfare or it's a phenomenon, and you can't be at a war with a phenomenon or you can't be at war with a tactic. You have to have parties.
But even - and so it does not neatly fall into the Geneva Conventions. There are many situations where, for instance, the war on terror will manifest itself within the meaning of armed conflict in the Geneva Conventions, such as the war in Afghanistan and the war, for instance, in Iraq, if you accept that it's part of the war on terror.
The issue of whether or not you can be in a global, unlimited war against what are called non-state actors is questionable. But even if you accept that, one of the issues - and this is also I think central in the current debate in the Congress today over the competing bills - is what are the rules that govern this?
Now you mentioned Common Article 3, and that's very important. And if I could just make one correction.
Prof. GOLDMAN: Common Article 3 really doesn't apply to prisoners of war, because if you're a prisoner of war...
CONAN: Ah, then you're a state...
Prof. GOLDMAN: ...you are...
Prof. GOLDMAN: ...you - it's - that is only available in what is known in an international armed conflict and you have the benefit of the whole panoply of articles in the Third Geneva Convention.
Common Article 3 was meant originally to deal with situations of non-international armed conflict. But beginning in 1986, in a case decided by the International Court of Justice - the Nicaragua against United States - the International Court of Justice said however you characterize a conflict - because sometimes it's not easy to characterize these, the nature of the conflict - Common Article 3 represents - and I think its words were elemental considerations of humanity - bedrock, non-suspendable.
In other words, it doesn't matter what kind of conflict it is, you have to observe it. And the Supreme Court most recently, as you know, disagreed with the administration. And in the Hamdan decision it said Common Article 3 applies to the United States' war on terror against al-Qaida.
CONAN: Mm-hmm. It is a treaty, a convention that has been signed by any number of states.
Prof. GOLDMAN: Yeah. Common Article 3 is a provision. The reason it's called Common Article 3 is because it appears in the four Geneva Conventions. It is...
CONAN: Common to all four.
Prof. GOLDMAN: It is common to all four, but in point of fact, it's a mini convention. If you look at what it guarantees - and the fact is it originally was only meant to apply to non-international armed conflicts in states that were facing insurrections or rebellions. We were not about, at least in the 1940s when this was being negotiated, going to give all the protections of the law of war to their violent opponents who were seeking to either secede or to overthrow them.
And what emerged was the minimum. This was the minimum that states would agree to. And if you really look at it, it doesn't really deal with restraints on the conduct of hostility. It deals with essentially fundamental human rights protection: no murder, no torture, no outrages against personal dignity, no mutilation, and if you're going to try a person, you have to give fundamental due process guarantees by an independent and (unintelligible) constituted court.
CONAN: Let's bring another voice into the conversation. With us is Ruth Wedgwood, professor of international law and diplomacy at Johns Hopkins University, also kind enough to join us today here in Studio 3A.
Professor RUTH WEDGWOOD (Professor in International Law and Diplomacy, Johns Hopkins University): Thank you.
CONAN: Nice to have you back on the show. There were Geneva Conventions before the Second World War. Our prisoners of war held in camps in Germany were under the provisions of - they were rewritten after the Second World War. How come? What was changed?
Prof. WEDGWOOD: Well, there was indeed a 1929 Geneva Convention on prisoners of war. And if you want my unvarnished academic opinion, frankly that 1929 treaty was written - was read quite narrowly, muscularly narrowly, by the Supreme Court in a host of World War II opinions to allow things like Nuremberg to go forward. Because oftentimes treaties are written and sound great at the moment you write them, and then you think, my gosh, I really have to do this in the following way to put the Nazi leadership on trial. And you have to sit there with a template of the treaty and worry about what are you going to do about the text. So frankly, even back then some of these dilemmas occurred.
I think the two fundamental themes I would sound is that number one, Bob is certainly right. Common Article 3, which appears in the new 1949 Geneva Convention, is to pick up the civil wars and others that weren't going to be covered by the full panoply of rights in the '49 Convention, that those are rock bottom, earthbound rights; call it customary law, call it natural law, call it the Martens Clause of the Hague Conferences of '07 and 1899, call it human rights law, in a more modern vocabulary. But they are pretty rock solid, rock bottom. It just speaks of outrages on personal dignity...
Prof. WEDGWOOD: ...as well as cruelty like maiming and death. That may be a caution against reading too much into them as well. I have to say in my other hat that they are meant to be basic-level rights. It's -there is a distinction quite arguably between them and the rest - some other portions of Geneva three.
Prof. WEDGWOOD: But they are meant to be a fundamental guarantee of humanitarian treatment, which I don't think any country with self-respect would wish to deviate from, whatever its formal instantiation.
CONAN: How many signatories are there, Prof. Goldman? And does it have the force of law amongst the signatories?
Prof. GOLDMAN: Well, obviously among the signatories - as a matter of fact I think that in the last month the Geneva Conventions achieved universality. I think about 192 states are now on - I think it was a press release.
Prof. WEDGWOOD: (Unintelligible)
Prof. GOLDMAN: It - but, yes - and - but even as Ruth said, it - this has been recognized at the very least to be customary international law is what we would call it. Even if you weren't bound as a state party to the treaty, you would be bound by it. And indeed many people would regard, as Ruth says, however you want to characterize it, as bedrock. These, you have to understand, are minimum. Minimum guarantees.
And these are very common to what we see in human rights law where you can't torture, you can't engage in cruel, inhuman degrading treatment and so forth. You can't engage in, you know, a vivisection and mutilation and so forth.
CONAN: Treaties, Ruth Wedgwood, are debated and endorsed, ratified by the United States Senate, but as I understand it, you know, the Geneva Conventions were also passed as part of U.S. law.
Prof. WEDGWOOD: Well, they are - there's always the horizontal issue of treaties between states, that they have rights against each other and some rights are seen to be a promise you make all the states to take part in a multilateral convention.
Then there's the issue of what is transformed directly into American law. And that could happen two different ways. One is through military orders, that a commander wants his guys to be law-abiding, his gals, because otherwise he'll be committing a treaty delict, and his commander in chief will be mad at him, and other countries will retaliate.
CONAN: So that might show up in, for example, the field manual.
Prof. WEDGWOOD: Yes, the Army field manual. I mean the manual tradition, actually, in this country is one of the most important ways that law of war has been taught. Starting with Francis Lieber in 1862 and '63 in the Civil War were the first great modern law of war manual.
And then there's the second issue which has been I think of more concern lately in the debate. It happened that in the mid-'90s, really without much forethought as to this situation certainly, that the Federal Criminal Code was amended, Title 18, to include a War Crimes Act for war crimes that are either committed by or upon Americans. And there was an invocation of the treaty language in that respect. In a sense that treaties were incorporated into that criminal statute.
CONAN: To your knowledge, has anyone ever been prosecuted for violated that law?
Prof. WEDGWOOD: Well, there was a memorandum of understanding that was reached almost immediately in the Clinton administration, that uniformed people would still be remitted to courts martial, not to criminal courts.
CONAN: Criminal courts, yeah.
Prof. WEDGWOOD: Federal prosecutions.
CONAN: And have -
Prof. GOLDMAN: Well, it's important to understand one thing, that the law of war just doesn't bind your military. Obviously, they're bound. The law of war binds all nationals of a warring state, which means in this case that the CIA, as well as private contractors, would be equally bound by Common Article 3, which is one of the reasons why there is this effort to - which has met really with some opposition by Senators as well as by many of the uniformed military, both retired and active duty - not to ratchet down effectively the standards of protection in order to seek to immunize, for instance, CIA and contract personnel who would be engaging in interrogation techniques that would run afoul of these bedrock principles.
CONAN: We're talking about the history and application of the Geneva Conventions. We're going to have to take a short break, but if you'd like to join the conversation, give us a call. Our number is 800-989-8255. That's 800- 989-TALK. You can also send questions by e-mail -firstname.lastname@example.org is the address.
I'm Neal Conan. We'll be back after the break. This is the TALK OF THE NATION from NPR News.
(Soundbite of music)
This is TALK OF THE NATION. I'm Neal Conan in Washington.
We're discussing the Geneva Conventions, what they say, how they've been applied to conflicts in the past and their continued relevance today in the current debate in Washington over the rights of terrorism detainees and interrogation techniques. Both sides point to the Conventions to make their case.
Our guests are Robert Goldman, professor of law at American University Washington College of Law, and Ruth Wedgwood, professor of international law and diplomacy at Johns Hopkins University. Of course you're welcome to join us - 800-989-8255, 800-989-TALK. E-mail us, email@example.com.
And let's begin with Chuck, Chuck calling us from San Francisco.
CHUCK (Caller): Yeah, hi.
CHUCK: I just want to first say that if we really are engaged in a great ideological struggle, I'd definitely be one - I want to be part of the ideology that's against torture and secret prisons and detention without due process. I think to do otherwise is kind of a unilateral moral disarmament if you're going to have a - in an ideological struggle.
But I'm wondering about the history of compliance with the Geneva Conventions because it seems to me there's got to be a few cases at least over the years where there have been violations. And I think it seems to me like the real - well, one of the real errors that the Bush administration has made is trying to expand these torture and kind of make an explicit policy - mount explicit policy of using extreme techniques and thereby forcing - basically make it so that if you do have one of these rare occasions where you've got like a ticking time bomb sort of situation, you know, there - you've got - you're going to have to have all these rules in place.
Whereas before, you know, I've got to believe that there were probably a few violations, and as long as they was general compliance, there wasn't really this - this issue didn't really come up.
CONAN: Has there been a general compliance over the past 60 years, Professor Goldman?
Prof. GOLDMAN: You mean on the part of the United States? Or on the part of other countries?
CONAN: Well, in general. There have been a lot of wars.
Prof. GOLDMAN: Well, there have been a lot of wars, and in terms of certainly since the end of the Second World War and Korea, really, the Geneva Conventions were just entering into effect, and they were not applied. Although under our own military manuals and so forth, the U.S. military did apply and did give prisoner-of-war status and so forth to the others.
CONAN: U.S. prisoners in North Korea were -
Prof. GOLDMAN: And - yes - and were not treated well. On the other hand, we also had the situation of Vietnam, which was an international armed conflict, and we know the story there, the lack of ICRC access to U.S. prisoners, denial...
CONAN: International Commission of the Red Cross.
Prof. GOLDMAN: Yes, the International Committee of the Red Cross could not get access and there was a record of poor compliance. The United States had some prisoners who were captured, a limited amount, in the first Gulf War and they were not treated well, and what was done to them was the equivalent of war crimes. We did not, where we applied the Geneva Conventions in the most recent war against Saddam Hussein, they didn't take any American prisoners.
Let me just say, in terms of what the gentleman said, the United States has long had in the training, indoctrination of its troops, irrespective of the kind of action - peace enforcement, whether it's international, non- international - a set, a uniform set of norms of what you do and what you don't do.
We have had lapses. We know about My Lai and so forth, and there was major training and so forth to try to rectify these practices. And it is no secret in this town - that is in Washington, DC - that the single greatest proponents for not seeking to lower the protections of Common Article 3 are not only current but former judge advocate generals of the various armed services, former joint chiefs such as Colin Powell and General Vessey, as well as a host of other military people.
They understand what Common Article 3 means, and they realize, not only with the reciprocity argument - they know that al-Qaida is never going to give this, they're worried about future conflicts. And also what they're worried about is if we can be seen to doing this, what is this going to signal to our NATO allies who fight with us?
Because this is having a profound effect, apparently, on our allies, and the military understand that. So, yes, you're always going to have violations of the law. Everybody leaves their office in the evening and they speed. But we still say that we have law, and if you're caught, it is going to be an infraction that will be punished.
CONAN: Ruth Wedgwood, is reciprocity important in the Geneva Conventions? Is that mentioned anywhere, that if your enemy doesn't obey this, you don't have to?
Prof. WEDGWOOD: Well, it's a - you're opening a kind of a can of worms in some degrees. In the original Hague Conventions - 1899, 1907, which was really what happens on the battlefield - then there was an all participation clause that said that every country in the war had to be part of the Hague Convention or the Hague Convention didn't apply.
I think the assumption of reciprocity is there, surely. But people also are mindful of the fact that Hitler used the fact that the Soviets hadn't ratified the 1929 Geneva Conventions as an excuse for his brutality toward Russian prisoners of war. So, again, I'm - there's some there-there(ph) person, call it what you want. There has to be some understanding that whatever technical rules of treaty law you may muster, that there are other sources of law and moral self-restraint.
I mean one - I think what's underlying a lot of the kind of instincts that people have about the issue in part is there was an older tradition of reprisal. Two wrongs make a right. You shouldn't do this to me, but if you do it to me, I can do it to you. I can do it to you. It'll make you stop doing it to me. And that law of reprisal continues up through the end of the Second World War.
There's a famous example where the free French are killed by the Germans right near Geneva, at Annecy, a beautiful country lake. And the free French turned right around and killed 300 Germans. But in the '49 Conventions, really, there's a line drawn, at least as to prisoners and as to civilians in occupied territories, to say there the law of reprisal doesn't obtain, doesn't apply.
CONAN: Chuck, thanks for the call. Good question. Let's go to - this is Bill. Bill's calling us from Grand Blanc in Michigan.
BILL (Caller): Yeah, I just have a simple comment. I was in the Vietnam army, and - the Vietnam era army - and during that time, we underwent training as to what we were to be expected if we had been taken captive. And everything was done under what was then considered the Convention, and it was not pleasant. And if we're speaking about going outside that, I don't think we need to. There's well within what's there to coerce, for lack of a better word, anything out of anybody that we need to have.
BILL: Now I'll take my (unintelligible) off the air.
CONAN: Off the air. Thanks for the call, Bill. That is another question, I guess, about the utility of coercive questioning, whether - it raises to the question of torture or not. Certainly, Professor Goldman, interrogation is not a pleasant - nobody likes being questioned.
Prof. GOLDMAN: No, and of course, immediately battlefield - when you detain someone and so forth, there is clearly - you're going to be detained by the enemy. There's going to be a degree of coercion. But the issue is when coercion goes beyond a certain point and it starts triggering notions of excessive cruelty and perhaps amounting to torture.
Most of the military - and as you know, the military argued in this country very strongly for a reaffirmation of a prohibition against some of the techniques that apparently have been approved, and these were -prohibitions were reaffirmed in the most recent Army interrogation manual. And almost uniformly, military interrogators have taken the position that getting what they call actionable intelligence is something of an art, and torture is counterproductive and it does not yield that. And they have been in the forefront of those who have not wanted to see this extend and effectively contaminate the armed forces.
CONAN: Let's hear from Ed. Ed's calling us from St. Louis.
ED (Caller): Yeah, you know, the folks who want to be soft on the terrorists always mention that they worry about what might happen to our soldiers. But as your guest indicated, there is no history of compliance. Why would anyone think that in the future they're going to do anything different from what they've done before, which is violate these feel-good rules? Thanks.
CONAN: Thanks for the call, Ed. Ruth Wedgwood?
Prof. WEDGWOOD: Well, I - reciprocity is one argument that people give, and it's true that with certain kinds of adversaries, you shouldn't expect to get anything back. And you enter into it knowing that's going to be the case, that life is definitely not fair.
I think certainly for the armed forces, you have to worry about a number of things - our armed forces. One is ethos and training to standard. I mean, you have big, big machine of young men and women pumped up, filled with the angers of battle and camaraderie, a lot of emotions sloshing around. And one of the purposes of clear doctrine is to just avoid giving into one's baser impulses. You don't need doctrine to tell you to be cruel. You need doctrine to tell you not to be cruel when you're angry that they killed your buddy.
So I think when you're thinking about how you communicate clearly to young people on the battlefield, that the necessity for some bright lines is quite evidently there.
CONAN: Yeah. Senator McCain says - who, of course, suffered five years under terrible treatment in Vietnam - says it's not about us. It's not about what they do to us. It's about what we do. It's about us and it's about the future. It's not necessarily about this conflict, but future conflict.
Prof. WEDGWOOD: No, it's certainly about your self-conception...
Prof. WEDGWOOD: ...your moral self-conception. I mean, it leads to all kinds of dilemmas that none of us have yet solved, I think. It's certainly true that nobody in America with a wife or spouse and a pension wants to volunteer to be anybody else's moral stooge.
So you shouldn't assume that anybody's going to do voluntarily what you wouldn't ask them to do. That's a ground truth in democracy, I think. You wouldn't want them to do things that you wouldn't ask them to do.
So you have to be very honest with yourself as to what your actual attitude is - the price you will pay - in the ticking bomb situation. It's easy to assume that torture, God forbid, never yields anything that's probative - certainly for a court case, that's utterly true.
A colleague of mine at Yale once edited The Caroline(ph), which was a Renaissance German interrogation manual on how to use physical coercion and get useful information. So I would like to think it doesn't yield anything that's useful. People in the past have thought it did. So I think if you're going to make the moral choice, it has to be, you know, eyes wide open. That there could be a cost to it, and it's a cost you're willing to pay.
CONAN: Has there been a cost for those who violate the Geneva Conventions? When Slobodan Miloševic was charged with war crimes - of course his death vitiated any conclusion to that case - but was he charged with violations of the Geneva Conventions?
Prof. WEDGWOOD: Oh, he had violated most everything.
Prof. GOLDMAN: Yes, oh yeah.
Prof. WEDGWOOD: The Sherbrenitz(ph)...
CONAN: Srebreniza, yes.
Prof. GOLDMAN: Oh, yeah. I mean, the things is the atmosphere, I think, you point to something that's quite relevant. That historically, those -particularly in internal arm conflicts and so forth - were able to wash their hands and give amnesties and so forth, and that was the end of it. Well, we've seen that that age is pretty much come to an end.
The outrage over what happened in the wars in the former Yugoslavia and Rwanda gave rise, obviously, to the creation of two ad hoc courts by the Security Council. We have a variety of other courts, like for Sierra Leone and so forth, to deal with serious violations of the laws of war that were committed.
We have other places - the Timor. And then finally, of course, this culminated in the creation of a freestanding, permanent International Criminal Court whose jurisdiction extends to serious violations of the laws of war, whether in wars of between states or internal wars.
CONAN: To which the United States is not (unintelligible).
Prof. GOLDMAN: The United States - although I will say the United States did fully participate and really doesn't object to the subject matter jurisdiction. We objected to certain other things. So the possibility today that someone who thinks that they could violate these things with impunity and maybe not ever have to pay a price, it's not true.
Secondly, states are increasingly enacting - as is their right - various laws written under what was called the universal jurisdiction, whereby they can purport to try people who commit to serious violations of the laws and customs of war, as well as to provide civil remedies.
And we're seeing these kinds of things. Various people from the southern cone of Latin America - Argentines and so forth - are being extradited, being tried for what they did in connection with the dirty war. Others -Chile, Pinochet - saw effectively that he was not, after many years, going to be immune.
So I think the world has changed. There's less tolerance. Does it mean you're going to get every bad actor? Of course not, but the mood has changed.
CONAN: We're talking about the history and the application of the Geneva Convention, and you're listening to TALK OF THE NATION from NPR News.
And let's get another caller in. This is Kome(ph) - I hope I'm pronouncing that correctly - in Ann Arbor, Michigan.
KOME (CALLER): Yes. Thank you for taking my call.
KOME: I just have a simple question. Your guests said that there are 192 states - nation states - that were involved in making the Geneva Conventions. So, instead of having 192 different versions of what you can or cannot do or the definition of cruel and unjust, why not just have the original 192 or whoever else is interested redefine what it means so that there's one Geneva Convention code and depiction of exactly what is meant by the terms?
Personally, I don't think it's ambiguous. Everybody knows what is cruel and unjust, but just so you have one universal definition. The original authors should go back and redefine what they mean.
CONAN: I think there's two questions there. Is there, Ruth Wedgwood, one universal definition of what the Geneva Conventions is? And the second question is - we'll put to you Robert Goldman, in the time we have left - is it time to revisit them and reconsider maybe rewriting some of the rules? Ruth Wedgwood?
Prof. WEDGWOOD: Well, the language is common. A couple of states have taken some limited reservations, but the language is there. In Common Article 3, it speaks of no outrages upon personal dignity, which is, you know, quite robust. How people implement that - you'd have to compare the army field manuals of many countries. Many countries don't have one. Many countries don't publish them if they have them. And you have to worry about whether they follow them.
Where I might take issue with Bob - and here I'm speaking as a burned out criminal lawyer - is yes, war crimes trials are important. But the real way you get compliance is by training, by drilling it into people's reflexes, instincts and (unintelligible).
Prof. GOLDMAN: We have no disagreement on that, Ruth. I agree with you. I was just raising the question that the day of total impunity and there's nothing that can be done, I think that those days are ended.
CONAN: But is it time to rewrite and to revisit?
Prof. GOLDMAN: No, I don't. And to add on to what Ruth said, first of all, we are getting a good deal of jurisprudence now internationally on what our understanding is. For instance, in torture the Yugoslav, Rwandan tribunals and undoubtedly the ICC will be arriving at common things. And much of this has been informed by the jurisprudence. For instance, of human rights bodies, who for over 50 years have been developing jurisprudence.
I don't think that there is a need to revise the law. The law has proved to be robust. The law has proved to be adoptable to new situations. And I think that what we need is greater compliance. I agree with Ruth, the foremost way of avoiding violations of the laws of war is through a robust chain of command. It is for the various parties to enforce that. It's a preventative means, and that is going to be the best way. But no revision. Compliance is what we need.
CONAN: Ruth Wedgwood, I'll give you the last 30 seconds.
Prof. WEDGWOOD: Sure. Well, just in terms of what those things would mean in practice, you can go to the army field manual. Some of those techniques of talking to people, interrogating, may have been debated even in their own time. I thought the best way it was captured was by maybe a fiction author.
Chris Mackey wrote a book called Interrogator's War, in which he said sort of a golden rule. Don't do anything to anybody else that you're not doing to yourself. Maybe you can pull an all-nighter and talk to them for 24 hours, but you've got to stay up and you can't tag team him. And that's a very nice, simple rule of thumb for an 18-year-old.
CONAN: Hmm. And again, mentioned by several of the members of Congress in the current debate.
Prof. GOLDMAN: Well, it's also in the military manual. By the interrogation manual, if you have any doubt, you just think if the shoe were on the other foot. If you have a doubt and you would not want this to be done to you or your buddy, you don't do it.
CONAN: Robert Goldman, thank you very much for being with us. A professor of law at American University's Washington College of Law. Our thanks as well to Ruth Wedgwood, professor of international law and diplomacy at Johns Hopkins University. They were both with us here in Studio 3A.
When we come back from a short break, author Max Brooks joins us. Three years ago, he talked about his Zombie Survival Guide. This time, World War Z. It's the TALK OF THE NATION from NPR News.