Dirty little wars and the law: Did Osama bin Laden win?

“Common Article 3 [of the Geneva Conventions] … says that there will be no outrages upon human dignity. It’s very vague. What does that mean, ‘outrages upon human dignity’?” — George W. Bush 

The past week marked the 70th anniversary of the Geneva Conventions of 1949. This laudable treaty, signed by every country, codified centuries of custom, treaties and protocols to protect individuals found on the battlefield. There are four articles to the Geneva Conventions protecting the wounded and sick, prisoners of war and civilians. This is an attempt to bring law and order onto the battlefield. These conventions are part of a larger set of treaties, protocols and rules called international humanitarian law, or the “laws of armed conflict.”

The Geneva Conventions were part of a promising four years after World War II that attempted to prevent the horrors of future conflict. The Nuremberg Principles were adopted, the United Nations Charter was signed, and the Universal Declaration of Human Rights and the Genocide Convention were created. These became the cornerstones to settle disputes peacefully and use force only as a last resort. The focus was on international peace and security.

Originally drafted to protect those found on the battlefield during international armed conflict, the protocols additionally drafted in 1976 brought in non-international armed conflict. The minimum standard under what is called “Common Article 3,” found in each of the four parts to the conventions and the additional protocols, is that regardless of status on the battlefield, everyone should be treated humanely. That remains the minimum today. Not maintaining this standard can be a war crime in and of itself. Essentially, any armed conflict is covered by the rule of law and those who break international humanitarian law are committing war crimes. 

For the past several decades, conflict has evolved from the vast industrial age conflicts, such as the World Wars and Operation Desert Storm, into the nuanced, kaleidoscopic conflicts of today. In these “dirty little wars,” the parties largely fail to follow the laws of armed conflict. There are no protections, particularly for civilians and even more importantly for women and children. The Geneva Conventions single them out to be especially protected; yet, one only has to look to the Syrian civil war to see that this key principle of law is ignored by all parties to that conflict. 

A majority of casualties in dirty little wars of the 21st century are civilians, a protected group under international law. Intentionally targeting civilians is a grave breach of the Geneva Conventions. Those who violate this principle are war criminals and remain so for the rest of their lives, since there is no statute of limitations for such crimes. By way of example, we still prosecute Nazi camp guards from World War II, all of whom now are in their 90s.

The Geneva Conventions were weakened a day after 9/11, as America and the world recoiled in horror. Instead of turning to the law, a “war on terror” began. The Bush administration declared the Geneva Conventions were quaint and out of date, and began to move away from international and U.S. domestic law to seek revenge against al Qaeda. The result was Guantanamo Bay, the Abu Ghraib prisoner abuse scandal in Iraq, U.S. military bases in Bahrain, and infamous “dark sites” around the world. Enhanced interrogation became the new rule; most nations call it torture, plain and simple. The United States lost some respect and credibility related to international rules of law because of its stepping away from principles of the Geneva Conventions.

Until this point, the U.S. had been the leading advocate of the Geneva Conventions and trained armies around the world on the laws of armed conflict. We had learned our lesson from the My Lai Massacre in 1969.

The world still, in principle, recognizes the Geneva Conventions, but many less-developed countries no longer follow the rules because there is no real accountability. This is a dangerous paradigm. War crimes run amok and the beast of impunity nibbles once again on the edges of civilization, as it did in the early to mid-20th century. 

Al Qaeda under Osama bin Laden sought to knock off the United States as leader of the world on that tragic day in September 2001. Compare the United States of 2001 to our country today. President Trump in May said he was considering pardons for military members accused of war crimes — an attempt to influence those prosecuting members of our armed forces who violate the Uniform Code of Military Justice. Some worry that international humanitarian law is in a sorry state. One might ask, did Osama bin Laden knock the United States off its perch, and did he win? 

With regard to international humanitarian law, the U.S. should return to the balanced tone that President Obama struck regarding the Geneva Conventions when he accepted the Nobel Peace Prize: “I believe the United States of America must remain a standard-bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength.”

David M. Crane served as the chief prosecutor of the Special Court for Sierra Leone. He served more than 30 years in the U.S. government, in positions including senior inspector general, Department of Defense, and assistant general counsel of the Defense Intelligence Agency. He is a professor and distinguished scholar in residence at Syracuse University College of Law.