Terrorists should be subject to the Geneva Conventions
The Geneva Conventions of 1949 collectively form international humanitarian law, a series of conventions and protocols that regulate armed conflict. The Geneva Conventions specifically detail a number of protections which states must extend to enemy combatants from the opposing country captured during times of war. These include prohibitions against all forms of violence including torture, humiliating and degrading treatment, and the passing of sentence without a properly constituted court hearing. In addition, medical treatment must be provided to those who need it and prisoners must be allowed to send and receive letters, enabling continued contact with their families. However, these protections only apply to soldiers of recognised armies. The global “war on terror” has pitted America and its allies against Al-Qaeda, the Taleban, and other non-state groups adopting irregular warfare strategies. When captured, their members (or suspected members) are wearing no uniform and represent no sovereign state, posing problems for those holding them. The controversial treatment of terror suspects when captured by the West in other parts of the world has been repeatedly highlighted by international media organisations and human rights groups. Guantanamo Bay is a particularly disturbing example, but it is undoubtedly reflective of the way that terrorists are treated in other, less visible parts of the world. The constraints of the Geneva Conventions are increasingly losing their effect on the use of force; the legal nihilism that exists around terrorists in the current war on terror threatens to undermine a body of law that has regulated war for half a century. If the Geneva Conventions no longer apply to the war on terror, what incentive do other states have to adhere to its regulations? If so, will war sink to the levels of barbarity that were in fact the precursor to the formation of the Geneva Conventions in the 1940s?
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1) Terrorists are engaged in war, which is subject to the Geneva Conventions.
Terrorists are engaged in a war like any other: they unite as a political actor to undertake military action in favour of a specific cause. The fact that they do not represent one individual nation and that they are not at war with a specific list of states does not undermine this: Al Qaeda, for example, has clear goals including eliminating American influence within Muslim nations, destroying Israel and re-establishing the Caliphate (Blanchard, 2007). The fact that we may not view these causes as worthy or legitimate is irrelevant: we do not assess the merits or legitimacy of a conflict between states before deciding whether to apply the Geneva Convention. It should therefore apply equally to soldiers and terrorists.
Terrorists are not engaged in a war. Their actions are aimed at destruction of civil society and of nations across the globe. The Geneva Conventions exist to control wars between nations in a way which respects human dignity and minimises long-term harm. Wars between nations have a foreseeable end, and the Convention is an important means of aiding reconciliation and cooperation in the future: it is harder to build a relationship with a state which has brutally tortured your soldiers upon capture. However, a war against terrorists will often have no end: it is inconceivable, for example, either that Al Qaeda will successfully achieve the reestablishment of the Caliphate or that the West will quash all terrorist activity. Reconciliation and future cooperation are meaningless here.
There is a moral duty to respect a basic level of humanity.
Even if we think the terrorist cause is illegitimate we have a moral duty to respect a basic level of humanity. There are certain acts, such as torture, to which no individual should be subjected, regardless of their own behaviour. The Geneva Convention is about universal respect for human dignity (International Committee of the Red Cross, 1949). Civilised nations can and should be expected to act in a humane manner, regardless of the barbarity of one’s adversaries.
Respecting them as a human being is a simple moral obligation that has brought us to where we are today. The idea of torturing them is primitive and brings us down to their level. You have to understand that they plan on either killing or being killed when they are in the terrorist mindset, and that by completing their task for them is just granting their wish. One man's terrorist is another's freedom fighter. Its relative and all depends on perspective.
Terrorists themselves do not respect human rights. They attack civilians and rarely comply with the Geneva Conventions or international human rights law. They do not deserve to be protected by the laws of war because they do not behave like a military organisation. If they do not comply with the laws of war there is no reason why they should enjoy the benefits of the Geneva Conventions when they are detained.
Poor treatment of terrorists affirm terrorist ideology and provides a recruitment tool.
Poor treatment affirms terrorist ideology: regardless of what is morally right, it would be beneficial to treat terrorists in the ways prescribed by the Convention. Terrorist ideology is often predicated on the behaviour of those countries against which it is targeted. Treating captured terrorists or terror suspects in a way that ignores their human dignity only reinforces perceptions of the West and encourages the radicalization of the youth (McCarthy, 2007). In addition, such behaviour can be used to justify terrorist actions to less radicalised members of certain communities.
Poor treatment is not a significant recruitment tool: whilst some people may be encouraged to join terrorist groups as a result of such behaviour, those who are outraged by human rights abuses in this context should be equally concerned about the violation of human rights which occurs when a terrorist detonates a bomb, or flies into a building, killing large numbers of innocent civilians. The ideology invoked exists independently of the way in which suspects are treated and indoctrination with such beliefs is the real tool in the recruitment process.
Harsh interrogation is not necessarily an effective tool for extracting valuable information.
Harsh interrogation of captives has not been shown to be effective (White, 2007). Those who are prepared to die to advance their cause are unlikely to yield information, no matter how much they are threatened or tortured. Where captives do provide information, they often state simply what they think that the interrogators want to hear, rather than anything that is true (Mazzetti, 2007). In addition, given the cellular nature of many terrorist organisations, those captured often have very little useful information to begin with. Even if they have been involved in a plot, they may only have information about a very small part of that plot. Furthermore, winning the trust of prisoners can lead to more effective information than the use of torture.
The interrogation of a terrorist is qualitatively different to that of a soldier, due to the nature of terrorist attacks and the importance of information in their prevention. Michael Hayden, former Director of the CIA, argues that there is no other way for the CIA to have acquired information from them, ‘given their character and given their commitment to what it is they do’ (Martinez, 2009). The effectiveness of harsh interrogation may vary, but an absolute prohibition based on the few exceptions would be too high a price to pay. Protecting civilian lives must come before maintaining any moral high ground.
Terrorists are not lawful combatants, therefore they not do not acquire prisoner of war status.
Those who wish to seek the protection of the Geneva Conventions, the laws of war, have a duty to distinguish themselves from the civilian population (Detter, 2007). Terrorists who absolve themselves of this responsibility in the pursuit of wanton violence, who flagrantly ignore the laws of war, cannot thereafter appeal to its protection once captured. Such a norm is required in order to preserve the immunity of civilians and prevent the encouragement of using civilians as means to ends.
The re-definition of terrorists as unlawful combatants threatens to encourage the use of the evolution of war as an excuse for human rights abuses. The refusal to apply the Geneva Conventions allows states to use tactics such as indefinite detention without trial and enhanced interrogation techniques such as water-boarding, which are seen by many as a form of torture (UN General Assembly, 1984). These practices are cruel and significantly harm the physical and psychological wellbeing of detainees. Even if these techniques were effective in the war on terror, they should not be practiced because they are a violation of both the laws of war and international human rights law (ICRC, 1948).
With no hope of reciprocity, adherence to the Geneva Conventions would undermine the fight against terrorism.
There is no moral duty to respect the dignity of terrorists. States should do whatever possible to protect their own citizens. The Geneva Convention is about reciprocity: it is in the interest of our own citizens to treat enemy combatants is a humane manner so that if our soldiers are caught they will receive similar treatment. There can be no guarantee of reciprocity from ‘terrorists’ as a whole, or even specific terrorist groups given the cellular nature of the organisations and the disparate nature of the command structures. Furthermore, terrorists specifically use poor treatment of hostages as a tool in their campaign. Given this, it is in the interests of our own citizens to use whatever means possible to fight terrorism; compliance with the Geneva Convention undermines this.
Treating terrorists with respect for their human rights allows those fighting the war on terror to take the moral high ground. By failing to comply with the Geneva Conventions, countries such as the USA are no better than the terrorist groups that they are fighting. The objects of war have changed, states no longer seek territory but popular support, ‘hearts and minds’ (Kilcullen, 2009). The values that the West stands for are exactly what terrorists are attacking and the West needs to show that it can win the war on terror while still respecting fundamental values such as the rule of law and human rights. Applying the Geneva Conventions is therefore a vital part of winning the war on terror, regardless of whether the terrorists choose to apply them.
Special interrogation methods are necessary in order to combat the terrorist threat.
The war on terror is unlike any other war and so different tactics are necessary in order to win. There is no point maintaining a moral high ground where this leads to more civilian deaths. The Geneva Conventions put barriers in the way of winning the war on terror because tactics such as indefinite detention are necessary. For example, Israel’s practice of targeted killing of terrorists was restricted by the Israeli Supreme Court on the grounds that it did not comply with the Geneva Conventions (The Public Committee against Torture in Israel v. The Government of Israel, 2006). Often there is no other way to combat terrorists and the Geneva Conventions restrict tactics that save hundreds of lives. Governments would also not be able to gain as much intelligence if they had to adhere to the Geneva Conventions when interrogating terrorists. It is dangerous to put the west at an operational disadvantage in the war on terror just to maintain a moral high ground.
There are always extra lengths states can go in order to protect their soldiers or civilians, the ambition of the Geneva Conventions in the wake of World War II was to established limits. The ‘unlawful combatant’ legal loophole created by the United States threatens to erode the restraint on warfare built up over half a century.
The high-profile case of waterboarding involving Al-Qaeda suspect Abu Zubaydah cast serious doubt on any claim that such methods are effective, and by extension, necessary in combating the terrorist threat. Water-boarded 83 times in one month, Zubaydah’s treatment demonstrates that the absence of the constraints of the Geneva Conventions is a slippery slope to the use of wanton, sadistic violence with no justifiable end (Shane, 2009).
There are other means by which to protect the rights of terrorists without needing to apply the Geneva Conventions.
Under the auspices of the Geneva Conventions, prisoners of war can be detained for the duration of hostilities, and are only entitled to return home at the end of the war (International Committee of the Red Cross, 1949). Given the open-ended nature of the war on terror, it is very likely that treating terrorist detainees as POWs will mean they are never released. Furthermore, there is no guarantee that the Geneva Conventions protect human rights any better than existing domestic law or policy. In democracies, the accountability of elected politicians and judicial review by independent judges can instead be trusted to ensure that detainees are not abused or mistreated.
The Geneva Conventions provide a strong mechanism for protecting the human rights of detainees in the war on terror. Applying the Geneva Conventions would allow the Red Cross to inspect prisons where detainees are held (Anonymous, 2002). Breaches of the Geneva Conventions also give rise to State Responsibility, as seen in the USA and Israeli courts’ supervision of the treatment of terrorists and terror suspects. Individuals can also be held criminally responsible for breaches of the Geneva Conventions, for example the Charles Taylor trial at the Special Court for Sierra Leone and the trial of Karadzic at the International Criminal Tribunal for the Former Yugoslavia (Dworkin, 2003). The Geneva Conventions are therefore a useful way of ensuring that states respect human rights, rather than simply promising to treat detainees well as a matter of policy.
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