JURIST Guest Columnist Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that US claims of adherence to the "principles" of the Geneva Conventions in the "war on terror" may not mean as much as some might think….

During her December visit to Europe, Secretary of State Rice reassured her European counterparts that the United States remains committed to compliance with the “principles” of the Geneva Conventions.

While this might seem like a significant commitment coming from an administration that has since 9/11 demonstrated an apparent commitment to opting out of international legal obligations, it is – unfortunately – relatively meaningless.

What Secretary Rice omitted to share with her audience was that within the U.S. government, including the Department of Defense, there is no agreed-upon content to the term “principles” as applied to the Geneva Conventions.

For the last two decades, the “principles” of the law of war have provided the foundation for Department of Defense law of war policy. According to Department of Defense Directive 5100.77 [PDF], “The DOD Law of War Program”, the armed forces of the United States are obligated to comply with the “spirit and principles” of the law of war during all military operations, no matter how characterized. This mandate was specifically intended to establish a baseline standard for U.S. forces applicable to military operations that ran the spectrum from non-conflict peacekeeping to high intensity armed conflict.

The concept of requiring the armed forces to comply with such principles reflects the pragmatic reality that confusion, delay, or politicization of “conflict classification” will often result in uncertainty for conducting military operations. For example, when the United States launched Operation Just Cause to remove Manuel Noriega from his position of control in Panama, the Executive Branch refused to acknowledge that the combat operations qualified as an international armed conflict (a determination that was later categorically rejected by the United States District Court for the Southern District of Florida in the decision holding that General Noriega was a prisoner of war pursuant to the Third Geneva Convention). Nor did the United States acknowledge the formal applicability of the law of war to subsequent operations in Somalia, Bosnia, or Kosovo. This policy therefore provided an essential source of authority for military legal advisors called upon to guide commanders in the decision-making process associated with such operations.

While the specific content of this mandate was never detailed by the Department of Defense (nor the Chairman of the Joint Chiefs of Staff in the implementing Instruction CJCSI 5810.01A), a customary understanding nonetheless evolved among the armed forces. As virtually all operational legal advisors learned, this umbrella term encompassed, at a minimum, three bedrock principles of the law of war: humanity (as reflected in the provisions of Common Article 3 and Article 75 of Additional Protocol I); distinction (as reflected in the rules related to military objective and precautions in the attack contained in Additional Protocol I); and the historically understood concept of military necessity. Accordingly, for years Judge Advocate officers have been taught that these principles provide the essential “azimuth points” for the “legality” compass they must use to perform their functions as legal advisers, and that whether applicable as a matter of law or policy, they were pragmatically obligatory under all circumstances.

This customary understanding of the “principles” of the law of war proved both valuable and effective through a range of military operations conducted by U.S. forces ranging from Grenada through Kosovo. However, the policies, directives, and decisions that began to flow from the highest levels of our government following 9/11 began to challenge this understanding. Perhaps the most prominent example of this development came in the form of the President’s February 7, 2002 memorandum addressing obligations towards Al Qaeda and Taliban detainees. In that memorandum, the President concluded not only that these detainees were not entitled to the protections of the Geneva Conventions, but that even the policy mandate that they be treated humanely was qualified “to the extent appropriate and consistent with military necessity.”

This apparent invocation of military necessity as an “override” authority to justify derogation from even the most basic obligation of humane treatment contradicted the longstanding understanding of the “principles” of the law of war. Subsequent decisions by the Bush administration seemed to confirm that the customary understanding of the universally binding nature the principle of humane treatment had in fact been reassessed. As a result, military commanders and the Judge Advocates who advised them were left with even more uncertainty, and the recipients of a “case by case” assessment of what this policy actually means.

Since that time, there have been efforts to provide more detail to the concept of “principles” of the law of war. However, these efforts have failed to alter the nebulous meaning of this policy mandate. In fact, although DOD Directive 5100.77 is currently pending revision, it is highly unlikely the armed forces will be provided any additional detail as to the meaning of this term, leading to a continued case by case approach to determining what this mandate requires. While this will no doubt serve the interests of proponents of maximum legal flexibility, it will do little to provide a meaningful set of standards upon which to build legally sound operations.

Against this backdrop the Bush administration has now begun to tout the longstanding commitment of the United States to “principles” of the Geneva Conventions. What, however, does this really mean? Without even a cursory enunciation of the content of these principles, the answer is nothing more than the administration wants it to mean in any given situation. Such an amorphous and malleable standard might offer some value in a climate of demonstrated commitment to good faith compliance with the “spirit” of the Geneva Conventions, but sadly this is not the climate that currently prevails. Instead, touting this term seems like just another example of hyperbole by an administration that seems determined to interpret law and mold policy in any way necessary to achieve their designated objectives.

It seems more than a little ironic that on the same December trip on which Secretary Rice was publicly emphasizing commitment to the "principles" of Geneva, she was privately explaining why the United States abducted a German citizen and deprived him of his liberty in Afghanistan for months — a “mistake” that was determined justified by the necessities of war. I wonder where the “principles” were during that incident?

Geoffrey S. Corn is a Professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters
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