The Gonazales hearings and Senator Schumer's question about revising the Geneva Conventions

I have caught just bits and pieces of the Gonzales confirmation hearings for Attorney General today. In general, he does not seem to have faced especially bitter attack - on the contrary, I thought the Democrats appeared to be pulling their punches, at least in the bits I heard. One bit that caught my attention was a question from Senator Schumer, asking Judge Gonzales whether there had been discussion within the Administration concerning the possibility of revising the Geneva Conventions to account for the different circumstances of the war on terror. Judge Gonzales hedged, saying there had perhaps been some general discussions as to the changing circumstances of conflict, but nothing specific. Senator Schumer then urged him to seek advice from Congress in any such move rather than simply submitting a treaty for advice and consent.

Revising the Geneva Conventions? No one, inside or outside the Administration, liberal or conservative, is talking about literally revising the 1949 Geneva Conventions - what they mean is supplementing them in some fashion, perhaps even superceding parts of them, by means of additional agreements, protocols, treaties. A number of academic meetings have taken place over the past two years or so, exploring the possibility. The meetings have had a variety of motives and sponsors - the common denominator, so far as I am aware, having participated in several, has always been a concern fundamentally about US behavior and ways of constraining it. I am not aware of any meeting in which the fundamental concern has been to make it easier for the US to conduct a war on terror. These conversations always take place, in the abstract, from the point of view of regulating everyone's conduct - but since there is only one party in the war on terror - terror being the strategy that it is - who might conceivably agree to be regulated, the United States, the practical import is that these are meetings about constraining US behavior.

For this reason - believing as I do that the United States should not, at this point, be subjecting itself to more international legal restraints, but should be establishing its own standards - I have taken the position that generally the United States government should not participate, nor encourage such exercises. It should recognize that, just as happened with the International Criminal Court negotiations, the US tries and tries and tries to be a team player, only to find out that the team consists of "it" and "them" and that the only practical function of the negotiations is to constrain US action. Eventually it all ends in tears, with many recriminations against the US, because eventually the US hits a wall - some principle, such as fundamental sovereignty, that no form of negotiation, however artful or papered over, can make go away. The wall is a matter of principle, not something that can be finessed by a form of words. That being the case, it would have been better had the US not given any legitimacy to the proceedings in the first place, and spelled out exactly why.

This is quite true in regard to any possible multilateral revision of the laws of war. A multilateral process would result only in the attempt by the Lilliputians to tie down Gulliver - and in the peculiar way consistent with the security imbalance between the international legalist states of Europe and the United States - states that have no fundamental security interests, because of the US security guarantee, arguing that the US should tie its hands in security matters to the satisfaction of European consciences. There is nothing in this but trouble for the United States.

Instead, the United States would be well advised to simply pursue its own vision of how the laws of war should be - asserting them publicly as law and declaring them to be the US understanding of the laws of war. It should use its power as the leading military power to create the conditions of customary international law by asserting its state practices as expressions of international law. It should, in effect, create legal facts on the ground.

To do that, however, requires that the US put forth its view of how the laws of war should reflect the realities of the war on terror not merely as an expression of US interests, security interests, but instead as a vision of the ideals of the law of armed conflict. At the center of this is not in fact US security, but instead a vision of the protection of civilians - which, at its core, terror threatens. The US can create long term international law, or at least protect its claim that it is within international law, only by asserting its policies as part of a larger moral vision of the laws of war. The US has almost entirely failed to do this, however, allowing its policies to be portrayed as nothing but mere realist interests. I have never understood this, frankly, why the US fails to announce a moral vision, since in all my experience of US government lawyers in these areas, it is clear that they are fundamentally motivated by a moral vision and not by interests - the sad fact, after all, is that the Geneva Conventions have been seriously violated with respect to US soldiers in every post-WWII conflict. It is not because the Geneva Conventions have done so well in protecting US soldiers that the United States remains committed to them - reciprocity was lost a long time ago - but because the US as a political community believes their core ideas are fundamentally right, which is a moral vision, rather than an assertion of interests. And the US government should be willing to say so.

(I discuss these ideas in a short academic paper, The role of the United States military lawyer in projecting a vision of the laws of war, 4 Chicago Journal of International Law 445 (Fall 2003), available here from SSRN.)