RULE OF LAW Friend or Foe? By DAVID B. RIVKIN JR. and LEE A. CASEY Wall Street Journal April 11, 2005; Page A23 For more than three years now, the International Committee of the Red Cross (ICRC) has clashed with the United States over the detention of captured al Qaeda and Taliban terrorists at Guantanamo Bay, and over their classification as unlawful enemy combatants. Its most recent salvo takes the form of a massive "Study on Customary International Humanitarian Law." Although this document -- formally released on March 15 -- purports to present a neutral assessment of currently binding international law norms, it is actually an exercise in the very type of political advocacy that characterizes the work of private interest groups like Amnesty International. Indeed, the ICRC has become the leading practitioner of "lawfare" -- a form of asymmetrical warfare that aims to constrain American power using the law. This approach is fundamentally inconsistent with the ICRC's supposed role as a unique and impartial international interlocutor. It is, of course, this special role that has justified the U.S. Congress in spending tens of millions of American tax dollars annually on the ICRC. The American people are not, however, getting their money's worth. For more than 30 years, the ICRC has been working to change the traditional rules of international law applicable to irregular or "unlawful" combatants. Because such individuals do not comply with the most basic rules of civilized warfare, including an organized command structure, uniforms, carrying arms openly, and eschewing attacks on civilians, they are not entitled to the rights of prisoners of war when captured. In the 1970s, however, the ICRC prepared, and successfully promoted, a treaty known as "Protocol I Additional" to the Geneva Conventions. Among other things, this document granted privileged, Geneva POW status to guerilla fighters -- requiring them simply to "distinguish" themselves from the civilian population at the time of attack or shortly before. Of course, regular armed forces -- like those of the United States -- must distinguish themselves by wearing uniforms at all times during hostilities. Protocol I would create a substantial advantage for guerilla fighters, permitting them effectively to hide among the civilian population up to, or shortly before, the point of attack, while at the same time guaranteeing them POW status if captured. It was primarily on this basis that the United States rejected the protocol in 1987. Predictably, the ICRC's Customary Law Study now claims that this rule -- which the ICRC effectively invented -- has become so widely accepted that it is a universally binding customary international law norm, binding on the United States even without its consent. Indeed, through the peculiar alchemy of language, the ICRC claims the same status for much of the rest of Protocol I based on the wide acceptance of its "basic principles" -- even by the U.S. This position is not new. It was previously articulated by the group in response to some well-deserved criticism against it contained in the Schlesinger Commission's report on Pentagon detention operations. It is, however, a sleight of hand unworthy of the ICRC. Acceptance of the broad, basic principles contained in Protocol I, such as the rule that captives must be treated humanely or that disproportionate combat damage to civilian areas must be avoided, does not imply agreement to Protocol I's detailed and proscriptive provisions any more than agreement with Oliver Wendell Holmes's remark that taxes are the cost of civilization constitutes approval of every section of the Internal Revenue Code. Moreover, the ICRC has not limited its advocacy activities to the rules governing how prisoners are classified. Over the past years, it has increasingly interposed itself into areas such as arms control -- the Biological Weapons Convention process, for example -- that are well beyond its Geneva mandate. In this respect, the group has been particularly active in efforts to ban the types of landmines that remain critical to U.S. defense needs, particularly in Korea, and the cluster munitions that have proven their worth against al Qaeda and the Taliban in Afghanistan. More generally, it has pushed for legal rules mandating a zero-level approach to collateral damage, thus encouraging rogue states and guerrilla forces to fight from civilian areas so as to inhibit the operations of their law-abiding adversaries. On the ledger's other side, and contrary to widespread public beliefs, the ICRC has done precious little for the United States -- at least since World War II. Captured Americans were treated barbarically in Korea, Vietnam, and by Saddam's forces in the first Gulf War. Yet the ICRC neither provided effective assistance to individual American POWs, nor did it undertake the kind of determined, public campaign against those governments that it has launched against the U.S. over Guantanamo Bay. The sad fact is that, since signing the 1949 Geneva Conventions, the U.S. has never received the benefit of those treaties -- even though it has always extended Geneva treatment to its enemies. Those who claim that refusing al Qaeda and the Taliban Geneva POW status, as the ICRC demands, will somehow endanger American troops have yet to contend with this sorry record of nonperformance. How many generations, it might justly be asked, must the American people wait for the benefit of their bargain? In particular, of course, this question should be asked by Congress. The ICRC is an advocacy organization that has all but abandoned its primary mission as an impartial humanitarian body under the Geneva Conventions. Unless it mends its ways soon, the ICRC should no longer receive American tax dollars to fund so many activities that are against America's national interest and the U.S. should seriously consider transferring its Geneva Convention functions to a truly impartial entity. Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush. ------------------------ Yahoo! Groups Sponsor --------------------~--> Give underprivileged students the materials they need to learn. Bring education to life by funding a specific classroom project. http://us.click.yahoo.com/FHLuJD/_WnJAA/cUmLAA/TySplB/TM --------------------------------------------------------------------~-> -------------------------- Want to discuss this topic? 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