Stardate 20030731.2056

(On Screen): In a post from a week ago that I only just now discovered, Photodude asks:

It has long been an American military tradition to treat war dead with at least minimal respect. Even the enemy. Even despicable wastes of skin like Uday and Qusay Hussein. Beyond tradition, soldiers have been court martialed over it. Because if we hope for our own to be treated with respect, how can we not offer the same to those who fought against us?

This tradition is codified in the First Geneva Convention. Article 15 says (emphasis mine), “At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.”

Article 17 states, “They shall further ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found.”

And though the Third Geneva Convention is specifically about prisoners of war, it does say they must be protected “against insults and public curiosity.” Having your death-deformed face broadcast all over the world might just qualify as “public curiosity.” So we can discuss the semantic loopholes of the legal language, but the moral foundation on which these words were created is clear to me.

People were quite worked up about Iraq's violations of the Geneva Conventions during the war. Rightfully so, in my opinion. Are we now going to abandon those principles and standards for the sake of expediency on this one matter? Has anyone considered the precedent we are setting, and the fact there's a Bigger Fish left to catch?

The Geneva Convention specifically recognizes that many of the principles it lays out are not binding in certain particular cases. (This is one of the critical ways in which the Geneva Convention differs from the ICC charter.) There are three main exceptions which apply to most but not all of the provisions of the convention: they broadly don't apply to nations who are not signatory; specific ones don't apply to nations who are themselves violating them even if they are signatory, and some specific ones regarding treatment of enemy soldiers don't apply to enemy combatants who do not formally wear uniforms or formal insignia or other clear and distinct indication of membership in the military.

The reason for the exceptions is to prevent free riding. If a signatory was bound by the rules of the convention even when fighting against an opponent who didn't follow them, the signatory would be at a distinct disadvantage, and this would give nations an incentive to not join the convention. But if the protections laid out in the convention only apply to nations who are themselves members of the convention and who also follow the convention, then there's a strong incentive for nations to join it and obey it.

The primary goal of the Geneva Convention was to try to reduce the horror and excessive destruction of war, and that goal could best be achieved by trying to induce as many nations as possible to join the convention and to obey its restrictions. The exceptions were deliberately included in the treaty so as to maximize the number of nations joining it and obeying it.

(One of the many deep flaws of the ICC charter is that it recognizes no similar exception for its long list of war crimes and crimes against humanity. If one side uses nerve gas and then the other responds in kind, under the Geneva Convention only the first has committed a war crime, but under the ICC treaty both have.)

The convention doesn't forbid signatories from obeying its provisions when dealing with those who violate it, but rather makes clear that not obeying the convention in such cases is not a violation of the convention. The degree and kind of obedience to the convention in such cases is left up to the signatory. As a practical matter, the US does tend to follow many of the provisions of the treaty anyway even in such cases, because it's in our best interest to do so. But there can be specific instances, highly unusual circumstances, where we are permitted to ignore the convention and may decide that we would gain more by doing so. This happens to be one of them.

Generally speaking, we follow its provisions when we face enemies who follow it, even if they're not formally signatories to the treaty, but we don't do so when the actual cost to us would be extreme.

The provision regarding lack of uniforms is one of the more important exceptions. The basic idea of requiring formal insignia for combatants is to make it so that the soldiers of each side can differentiate enemy combatants from enemy non-combatants. If the soldiers of one side cannot easily determine whether someone on the other side is soldier or civilian, then there's a much greater likelihood that civilians will be killed. One of the things that those who composed the treaty wanted to try to do was to reduce the slaughter of civilians in war.

Therefore, if an enemy combatant is captured and is not wearing any recognizable insignia or uniform, he is not entitled to any protection at all under the Geneva Convention. He can be executed on the spot without trial, for instance. He is considered to be committing a war crime by fighting without any such insignia, but if he's executed then those who order the execution and those who carry it out are not committing a war crime.

That provision regarding combatants without insignia applies to three major cases: to insurgents (such as to guerrilla action in occupied areas), to soldiers trying to hide among civilians during formal combat, and to spies. The argument for not rewarding each of these cases is the same and is valid; if you grant them protection anyway, you will encourage more of all three with tragic consequences.

Uday and Qusay were not protected by the Geneva Convention. I have seen no report whatever that indicates that they might have been wearing formal insignia as combatants at the time of their final gun battle, which means that since they fired on our troops, under the Geneva Convention they were non-uniformed insurgents and were entitled to no protection whatever. They themselves were violating the Convention by firing on our troops while not wearing any kind of uniforms or insignia. A war crime was committed, but it was they who did it. Had they been captured alive, it's likely that it would have been one of the charges laid against them at their trial.

The decision as to whether to treat them better than they deserved under the convention amounted to one of utilitarian value of each alternative. We've been fighting against and killing insurgents since the fall of Baghdad, but in most cases there was no good reason to abuse their corpses or otherwise act badly towards them after they were dead. Nor have we excessively abused those who were wounded or captured. Little would be gained by such desecration or abuse, but there would be costs in terms of alienating the locals.

But this particular case was much different. There were significant political benefits to be gained from publishing pictures of the corpses of Qusay and Uday and permitting them to be directly viewed by reporters, which far outweighed any small damage to our reputations that might engender. Of course, there was no similar benefit to be gained from publishing pictures of the dead teenager and the bodyguard who also died that day, and we have not done the same for them.

No one expects that our use of pictures of two of the four dead in this particular case will indicate a change in overall policy for us, so the actual cost to us in this case is likely to be extremely minor, and easily outweighed by the benefit. Showing pictures of those two corpses was unquestionably the right thing to do, and it did not violate the Geneva Convention, even in principle.

Photodude says:

I think we have taken a chunk out of the moral foundation of the Geneva Convention, which we proclaim loudly when it is violated to the detriment of our troops. And we tossed it off in the name of expediency to accomplish a short term goal. Call me silly, but that makes me a bit queasy.

I do not agree with that. The moral foundation of the Geneva Convention is that only those who abide by it should be protected by it. Without that understanding, it would amount to an suicidal agreement by its signatories to bring knives to the gunfight, giving nations a strong incentive to violate the convention when fighting against more honorable opponents.

The Convention recognizes that deterrence is a valid way to prevent tragedy. Nations and leaders who care little for abstract principles are much more likely to be prevented from committing war crimes by the prospect of savage reprisals-in-kind.

In WWII, the Germans developed nerve gas, but there is no record of them ever using nerve gas as a weapon of war. They did not fire nerve gas at London via V2's, nor did they use nerve gas against advancing allied armies even as a final desperation measure.

There's no particular reason to believe that Hitler had any kind of moral investment in the principles of the Geneva Convention, especially considering all the other ways in which it was violated (e.g. the dreadful treatment of Russian POWs). However, he definitely knew and understood that the Americans and British had prepared large stockpiles of mustard gas shells and bombs in the European theater, and that if he had ordered the use of chemical weapons against us he could be certain that the 8th Air Force and the RAF would start dropping large quantities of mustard gas on the cities of Germany, including Berlin. Mustard gas wasn't as "high tech" as nerve gas but it's truly ugly stuff, and we had far greater ability to deliver such weapons against Germany than Hitler had to deliver nerve gas against us. Even for Hitler, the prospect of mass application of chemical weapons to Germany's cities was unacceptable. So no one used chemical weapons in Europe. And that is a very good thing; it's what the Convention hoped to prevent.

But it wasn't prevented by the Geneva Convention's rules stating that first-use of chemical weapons was a war crime. Rather, it was prevented by the Geneva Convention's exception to those rules which made clear that second-use of chemical weapons was not a war crime. That, and all similar exceptions in the Geneva Convention, are among the most important reason why it is that the Convention has been as successful as it has been. Inclusion of those exceptions fulfills the deeper moral purpose of the Convention, which is to try to dissuade certain behaviors in war even among those who don't subscribe to the Convention.