Charli Carpenter, an Assistant Professor of at the University of Pittsburg’s Graduate School of Public and International Affairs, has just published a short piece on the Geneva Conventions in the war on terror in The National Interest. Writing at Duck of Minerva, where she’s a contributor, Carpenter notes the challenges involved with crossing from academic publishing to writing for a policy audience (or at least, involved with dealing with differing degrees of editorial license). More important, though, is the subject of her paper. In "Geneva 2.0", she sums up many of the basic issues that inform this particular debate, getting right to the heart of the problem when she writes
In January 2002, then–White House legal counsel Alberto Gonzales wrote a memorandum to President Bush in which he argued that “the current paradigm renders quaint” many of the provisions of the 1949 Geneva Conventions. This remark set the stage for a series of efforts by the Bush administration to claim that the Geneva Conventions did not apply to the global war on terror, that they applied to some detainees but not others or, at a minimum, that the president is entitled to interpret the treaty’s “grave breaches” clauses as he pleases.
These and subsequent actions have set off what some have called a crisis in the laws of war, ironically pitting the U.S. government (perhaps the most Geneva‐compliant superpower in history) against human‐rights‐minded elites whose admirable goal is to promote the very principles for which American political culture has long stood. The arguments of the Bush administration when
it comes to torture, prisoner-of-war status and extraordinary rendition have been met with outrage by the international community, constitutional scholars and human-rights organizations like Amnesty International, which has referred to Guantánamo Bay as the “gulag of our times.”
But the polarization of these two camps obscures the broad middle ground that exists between them. Both have forgotten that the laws of war always represented a compromise between humanitarian principles and security needs. Advocates for applying current international humanitarian law to all detainees in the global war on terror may hold the moral high ground, but they often misconstrue the political logic of the Geneva regime and its historical context. Those who argue the conventions can and should be disregarded at great powers’ discretion gravely underestimate the importance of the regime to securing U.S. interests in the new century.
A lot of work’s been done on this subject, not the least of which has been the New Battlefields, Old Laws (NBOL) project at the Maxwell School – the same project that provided the inspiration and impetus for the creation of CTLab. Although National Interest isn’t providing free access to the full article, Carpenter kindly provides a footnoted draft at DoM. I’ve read it, and it’s worth the investment.
To punctuate, Carpenter argues
The contemporary problem—for both governments and transnational rights advocates—is that neither sovereignty nor battle space is what it used to be. The solution is neither to blindly promote adherence to the letter of the law nor to continue to willfully flout its spirit. Instead, both the U.S. government and members of the transnational human‐rights network should seek to update and clarify these rules through an international conference that would lead toward a new additional protocol to the Geneva Conventions.