He has a good May 26 WSJ op-ed ($) to explain to ignorant students and others what the Geneva Convention is all about, or you can see, for an explanation of such things as the four longstanding conditions that determine whether a fighter is a legitimate combatant or a mere criminal: Yoo, John Choon and Ho, James C., "The Status of Terrorists" (August 25, 2003). Virginia Journal of International Law, Forthcoming. http://ssrn.com/abstract=438123. It's better than my May 18 post on the same subject. The Yoo Protest made me think about two things: the confusion between law and morality, and reciprocity in war.
Let us start with the confusion between law and morality. There are lots of bad things about the stress many people put on international law, but they can be divided into two categories I think.
First, there are actions which violate international law, even though the actions are perfectly moral and justifiable. This problem gets the most focus, since it is the prominent defect in new treaties that are proposed. It is, for example, a problem with a treaty to abolish war as an instrument of national policy, or with Article 9 of the Japanese Constitution (on which see my May 3 post).
Second, there are actions which violate morality, even though the actions are perfectly legal. I don't know international law well enough, so let me use a historical example: the Mongols killing single person in cities that refused to surrender. This was perfectly legal, because the Mongols had not signed the Geneva Conventions, which did not yet exist. But that doesn't make it right. Similarly, I believe that in 1943 there was no Geneva Convention covering civilians (I could be wrong on that). As a result, it was not at all illegal for the Nazis to kill Polish and Russian Jews. Nor, for that matter, was it illegal for us to execute Nazis after the Nuremberg Trials-- but we could have executed them before the trials too, Russian style, and it wouldn't have affected the legality of our actions. It was immoral of Nazis to kill Jews, and moral of Americans to kill those Nazis, but law doesn't really enter into it. Holding the Nuremberg Trials was a good idea even from a moral point of view, because it helped us figure out which Nazis deserved to die and which didn't, from a moral point of view, but the usefulness was for processing information, not because of any legal requirement.
People who stress international law undermine morality. If you say that it is important to follow law, then you say that morality is not so important. Indeed, you say that it is bad to follow morality when morality conflicts with law. Thus, from the point of view of someone who stresses law, the Nuremberg Trials were rather dubious. The Nazis did some illegal things, perhaps-- they may have violated the Geneva Conventions (though, actually, I'm not sure they did-- the Soviets probably weren't signatories, and Western prisoners were treated reasonably). But killing a few million Jews was not against international law, and our killing Nazi soldiers who surrendered-- e.g., Goering, head of the Luftwaffe-- did not have sound legal foundations. (As I said earlier, our killing civilian Nazis was okay.)
(By the way: the Japanese war crimes trials get surprisingly little attention compared to Nuremberg. This is probably because the Japanese war crimes were less dramatic, but for that very reason, the morality of the trials was much more dubious. I haven't looked at it closely, but I think it was mainly Japanese generals who were put on trial, and that several of them had done nothing worse than humiliate Allied generals by beating them fair and square, e.g. Macarthur's humiliating defeat in the Philippines after he was caught unprepared.)
My post of May 26 actually is on this same topic, I now realize. Newt
Consider, for instance, the following statement: Libya chairs the United Nations
Commission on Human Rights. The values-and-fact-based advocates note immediately that
Libya is a dictatorship with a history of terrorism, and they thus conclude that Libya
cannot chair the commission with any moral standing or credibility. By contrast, the
accommodation worldview contends that Libya won the vote in the United Nations and that
contesting Libya's moral and legitimate claim to the chair would be impolite and a
violation of due process.
Focussing on legality, it is wrong for me or you to refuse to respect the United
Commission on Human Rights because it is run by dictators.
The same idea carries over to judicial legitimacy. Focussing on whether proper procedures have been followed, it is wrong for me or you to refuse to respect a judge's decision just because it runs contrary to what the law says. For instance, if the Supreme Court says that according to the First Amendment, each Justice must be allowed to torture five personal enemies to death each year, the jurisprudence of most law professors requires that we respect the decision of the Supreme Court, as the final arbiter of what the Constitution means. Other people would say that (a) the law is not just procedure, and correct procedure can reach incorrect results, and (b) even if the law was as the Supreme Court said, it should not be obeyed because it is immoral.
As a coda, let me return to the question of reciprocity. Professor Yoo notes in the
article I cite above that Al Qaeda is not a signatory to the Geneva Conventions
(although Afghanistan is). I don't remember if he addresses the situation in Iraq, but
I imagine that anybody there fighting against the U.S. would not be an enemy combatant
covered by Geneva even if he wore a uniform, followed a commander-in-chief, etc.,
because he would not be fighting for a country that is a signatory--- he is not
employed by the current Iraq government, which is the U.S. Defense Department. But I
didn't see him address the issue of what happens if the U.S. fight against a country
that did sign the Geneva Convention, but then violates it. Perhaps Japan in World War
II is an example of this. Professor Yoo does note that reciprocity is an important part
of what makes countries follow Geneva, but it is not the only thing. A moral country
such as the U.S. might follow the Geneva Convention even if it said, "Any signatory is
bound by this treaty even in fighting against another signatory who has flagrantly and
openly violated it." But what does Geneva say, and if it says nothing, what is the
legality of violating it once the enemy has violated it?
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