JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says official US calls for "clarifying" the Geneva Conventions are part of a ploy to limit their application and enable prisoners to be treated outside the law without inviting culpability for war crimes and torture…

State Department Legal Adviser John Bellinger III has called for "clarification" of Geneva Conventions in the margins of the 30th international conference of the International Committee of the Red Cross/Red Crescent in Geneva (see this report on JURIST).

Bellinger said,

[The Conventions] do not apply to every situation. They in fact apply to conflicts between states. So therefore the Geneva Conventions do not give you the answers about who can be held in a conflict with a non-state actor. They do not tell you how long you can hold someone in a conflict with a non-state actor. They do not tell you what countries to return people to. In a normal conflict where one is fighting one or maybe two countries, at the end of the conflict you return the combatants to those countries. In fighting al-Qaida we've found that we have detained individuals from more than two dozen countries around the world. The Geneva Conventions do not provide answers to those questions so they don't provide sufficient guidance to countries as to what law to apply.

I want to emphasize the consistent and relentless effort of those speaking for the United States Government to keep trying to convince all of us domestically and internationally that the Geneva Conventions do not apply to this armed conflict. It started soon after 9/11 and was enshrined very early on in the February 7, 2002 Presidential Military Order. Bellinger is one more of a long line of persons working overtime to argue for holes and seek our acquiescence in this view.

The reason for these arguments is not one of principle but it is rather one of decisions made to be able to treat persons outside of law. The law is used to protect the persons who conspired to act outside of law who do not want to face any consequences for the decisions taken. As long as these persons are able to keep us guessing and arguing about the applicability of Geneva Conventions they can keep us from looking at their intended acts that are grave breaches and war crimes. We should not be duped by this ploy.

Bellinger went on to say,

The United States is firmly committed to the law that applies. We're also committed to working with other countries around the world to develop new legal norms in cases where existing law does not give one the answers. But what we do think is problematic is to simply suggest that the Geneva Conventions provide all of the answers in fighting international terrorism, and that countries simply need to follow the Geneva Conventions and that is the end of the matter.

In his comments, Bellinger did not talk about the core aspects of Geneva treatment of persons held but more about issues like when you have to return people. It is clear to me that the lever of the issue of when to return people is trying to be used to encourage a review of several aspects of the Geneva Conventions. The reason for this effort is that if one can convince the world to create a new protocol to deal with things one argues were not covered in the prior Conventions or Protocols, then one is able to vindicate the United States Government’s position since early on in the "War on Terror" that the Geneva Conventions and Protocols did not apply to the conflict. Through this maneuver, any prosecution for those leadership persons of the United States for grave breaches and war crimes for existing Geneva law violations before international criminal tribunals would then be undermined on the basis of the principle of legality.

Bellinger reaffirms the United States opposition to torture, yet even that reaffirmation is weak. He speaks of having strong personal beliefs and we are supposed to understand that as meaning that he will advise Mukasey to find that waterboarding is torture. But, the fact is that all those policies were worked out when Bellinger was at the White House and on into his time at State. I have no faith that his strong beliefs depart in any significant manner from those of the Haynes’, Bradbury’s, Yoo’s, Goldsmith’s, Gonzales', Addington’s or others on these topics who have created and extended the legal argumentation to enable U.S. torture in this armed conflict. Nothing in his tenure at State suggests his views are different from those of these other apologists for torture.

If there is one lesson from the torture debates it is that there is an almost unending availability of clever lawyers willing to build up sandcastle analyses to enable the sovereign to argue that what he/she is doing is perfectly legal. As long as those lawyers can include an Attorney General willing to see this as misfeasance the clever lawyer gets off scot-free as does the sovereign who sought the legal advice to allow the illegality.

If one is willing to take the scales from one’s eyes and just call things as they are, then the Bellingers are stopped in their tracks for their enabling of grave breaches and war crimes. That would be a clarification of American high-level civilian and military culpability that has been long delayed by efforts at spinning the War on Terror. It is a day of reckoning that is long awaited.

Benjamin Davis is a professor at the University of Toledo College of Law
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