Moral Equivalency in International Law

There is a continuing apoplexy about the land, even more pronounced abroad, about President Bush’s November 13 executive order authorizing that terrorists be tried before military commissions. Recent photos from Guantanamo Bay, Cuba, depicting captured members of the Al Quaeda terrorist network and the Taliban in the shackles in which they were transported to the prison camp, have given new life to the movement. The United States, it is stridently contended, is violating international law by threatening to prosecute terrorists before military tribunals rather than in open, civilian courts, and by refusing to treat these individuals as prisoners of war entitled to all the protections of the Geneva Convention.

These are extraordinary claims, and betray a moral equivalency that has become rampant in international law. In the midst of the United States’ armed response to the unprecedented attack on civilians on September 11 by international terrorists, for example, Amnesty International issued a report demanding, as its top priority, an end to the war against terrorism, giving that an even higher urgency than the elimination of terrorism itself. Imagine: stopping the United States and its allies from defending themselves against terrorism is a higher human rights priority than eliminating the scourge of terrorism itself.

The Guantanamo Bay claims are equally revealing. In a lawsuit filed in federal district court in Los Angeles, California last week, a group of self-proclaimed international human rights activists and local civil rights attorneys challenged the detention as unconstitutional and contrary to international law. Without any pretense of representing the terrorists being detained in Guantanamo Bay, these activist lawyers petitioned the Court for a writ of habeas corpus, which, if issued, would order the United States government to produce the prisoners at a hearing in Los Angeles that would be held to determine whether the terrorists were being lawfully detained. Essentially, the petition seeks to have the federal court in Los Angeles declare that the detainees are prisoners of war, subject to the protections of the Geneva Convention.

The claims could not be more misguided. Los Angeles does not have any connection with the case other than that most of the petitioner-lawyers, including lead petitioner-lawyer Stephen Yagman, happen to live there. And the individual petitioners do not even purport to have any personal connection to the case. Moreover, it appears that the petitioners engaged in some questionable judge-shopping, attempting to get the case heard by Circuit Judge Stephen Reinhardt, a U.S. Court of Appeals judge whom they may have believed would lend a favorable ear to their claims. But quite apart from these obvious jurisdictional and standing problems, the case is a non-starter on the merits. International Law, including the relevant Geneva Convention Relative to the Treatment of Prisoners of War, continues to recognize the fundamental distinction between lawful and unlawful combatants. Only the former are entitled to treatment as prisoners of war when captured, and even then are subject to prosecution by the capturing party for violations of the laws of war. Unlawful combatants, on the other hand, are entitled to no such protections.

So how does international law define the two different categories? Lawful combatants, entitled to prisoner of war status, can be either members of the regular armed forces of a party to the conflict or members of other militias or volunteer corps they meet certain conditions that were initially adopted in Article I of the 1907 Annex to the Hague Convention, namely, that they are 1) commanded by a person responsible for his subordinates; 2) have a fixed distinctive emblem recognizable at a distance; 3) carry arms openly; and 4) conduct their operations in accordance with the laws and customs of war.

Clearly the al Quaeda network does not meet these conditions. Osama Bin Laden may be commanding his subordinates, but he is certainly not taking responsibility to ensure that they do not violate international law and the laws of war. Its members do not have a fixed distinctive emblem. They do not carry their arms openly—unless one considers hidden box cutters and tennis-shoe bombs as "open" arms. And most fundamentally, they do not conduct their operations in accordance with the laws of war, particular the rule prohibiting deliberate attacks on civilian populations such as occurred in New York, without warning, on September 11. Individuals who join such an unlawful force, therefore, are not entitled to prisoner of war status even if individually they did not violate the laws of war. Rather, they are to be treated as unlawful combatants, essentially members of an international criminal conspiracy of terrorists, and can be prosecuted as such before a military tribunal. Indeed, the old rule in international law, which has not been fully abrogated, was that such individuals could even be subjected to summary execution. A 1977 Protocol to the Geneva Convention provides that unlawful combatants be afforded certain procedural rights that were not previously required by international law, but the United States is not a signatory to that Protocol.

The question is a bit closer with respect to the Taliban; if the Taliban can be viewed as the regular army of Afghanistan, Taliban soldiers would qualify for prisoner of war status (although they could be tried individually for violations of the laws of war). But whether the Taliban is entitled to treatment as the regular army of Afghanistan is itself a dubious claim. The atrocities against the people of Afghanistan that have reportedly been committed by the Taliban appear to have been not just individual acts but declared policy of the organization’s leadership. If the organization itself is not committed to compliance with the Geneva Convention or other norms of civilized society, then its members are not entitled to the protections afforded to "lawful combatants." As the International Committee of the Red Cross has noted in its authoritative commentary on the Geneva Convention of 1949, military organizations must conform to the norms of international law in order to be protected by the Geneva Convention. "In all their operations, they must be guided by the moral criteria which, in the absence of written provisions, must direct the conscience of man; in launching attacks, they must not cause violence and suffering disproportionate to the military result which they may reasonably hope to achieve. They may not attack civilians or disarmed persons and must, in all their operations, respect the principles of honor and loyalty as they expect their enemies to do." Reports of the Taliban’s indiscriminate killing of Afghan civilians, beheading of prisoners, and raping of women as a policy condoned by Taliban leaders in order to reward Taliban "soldiers" would clearly disqualify the organization for the status afforded to lawful combatants.

To even suggest, as the petition does, that these international terrorists are entitled to the protections of the Geneva Convention is to place their actions on a moral par with the actions currently being taken by the United States to protect itself against future atrocities. It is, in the end, an extraordinary claim, and it must be resisted with all the reason and might that a free people can bring to bear.

Dr. Eastman is a professor of constitutional law at Chapman University School of Law, the Director of the Claremont Institute Center for Constitutional Jurisprudence, and an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University.

"First Principles" is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2001 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.