Three threads in the discussion about the Afghanistan cremation incident (below here and here) as well as Jon’s most recent post seem worthy of further comment.

(1) Applicability of the Geneva Conventions. While the Bush administration has studiously sought to avoid invoking these agreements, apparently for fear senior officials could be personally prosecuted in federal court for their violation, I agree philosophically with those commentators who argue for their applicability. It is my sense after reading much of the Final Record of the 1949 diplomatic conference that the drafters (including several U.S. generals) intended that between the detailed prescriptions for International Armed Conflict and minimum standards for Non-International Armed Conflict, at least some portion of these agreements would apply to anything more than small-scale internal disturbances.

J.D. makes an intriguing argument below that since obedience of an illegal order is no defense, soldiers can still be prosecuted for violating the Conventions because the President lacks legal authority to declare them inapplicable. I’m sympathetic to his view, but my legal training and experience as an officer counsel against it. First, it’s a bedrock principle of leadership that seniors are held to a higher standard than subordinates. To prosecute junior soldiers for violating standards that seniors have seemingly wrangled exemption from is just wrong. (True, that happened with Abu Ghraib, but I won’t advocate compounding the travesty of letting seniors off the hook there). Second, whether correct or not, courts have traditionally given significant deference to the executive’s interpretation of treaties. And even if they should apply, can we infer sufficient actual or constructive knowledge of the Conventions’ applicability to hold soldiers criminally liable for their violation when the President has said they don’t apply? Common article one says the Parties will ensure respect for the Conventions “in all circumstances,” but common article two describes their applicability in terms of conflict between states and military occupation. This leaves room for a colorable argument that they don’t apply to conflict against Al Qaeda in Afghanistan although they clearly do to Iraq. So I think it’s too much of a stretch to argue that junior personnel in Afghanistan should have such clear knowledge of their applicability as to require them to recognize the President’s order as unlawful and disobey it as a matter of law.

Mea Culpa! (10/28/05) In my original post here I said Jon was mistaken about the status of the Additional Geneva Protocol II on Non-International Armed Conflict. It fact it was I who was mistaken -- although President Reagan did refer it to the Senate requesting advice and consent to its ratification, the Foreign Relations Committee has taken no action for the last 18 years as documented here. Jon is also correct that the U.S. did not ratify Protocol I but accepts many provisions as binding customary international law. Unfortunately our troops in the field have no way of knowing which provisions are binding although they theoretically can be tried for violating them; the Army has not updated FM 27-10 upon which he wishes to place reliance since 1976! Just a few of the other law of war developments it thus fails to address are the bans on chemical weapons, restrictions on landmines and boobytraps (in addition to the ban that the US is not fully onboard with), protections for UN peacekeepers, and prohibition of blinding laser weapons.

(2) Applicability of the Customary Law of War. Saheli astutely questions below whether the customary law of war shouldn’t also be “applicable to issues like keeping nationless prisoners in custody without trial, or using torture, or any other manner of issues for which the Attorney General suggested that the President consider [the Conventions] suspended.” She’s exactly right, it should. In fact the administration is currently arguing before the federal courts that the customary law of war is the very foundation of the Guantanamo military commission process, and I don’t disagree with that position. But if the rule of law is to have any meaning, you can’t cherry pick those provisions you like and ignore the norms you don’t, which is exactly what the administration seems to be currently trying to do, even with respect to the military commission process. (I’ve written an article which addresses some of the disconnects between the customary law of war and military commission process. It’s forthcoming in the Fall 2005 Virginia Journal of International Law and available here in draft). There simply is no credible basis for finding customary law of war norms inapplicable to the GWOT; the challenge is now for those with sufficient knowledge of these rules to identify them with sufficient clarity to our troops to facilitate obedience, and call for prosecutions for their violations at every level right up to the most senior officials. I’m not sure how many of our JAGs are currently up to this challenge; the Army has surrendered leadership in this field to NGOs such as the ICRC. Jon may be critical of the ICRC effort, but given the failure of our military to keep up with developments in a field we initiated the first effort to set out comprehensively for the use of our soldiers in 1863, it’s probably the single best source document currently available despite its imperfections. (The rules are all contained in Volume I, available in paperback for $53. But for you Jon, I've found an article from the March 2005 International Review of the Red Cross that conveniently states all 161 rules and is available here for free!). But I would not propose drafting charges based on the ICRC book; I would make the effort to base charges on the holdings of precedential U.S. war crimes trials of which there are many more than almost anyone writing in this area today seems to recognize.

Jon, it's very nice to talk about the four general principles governing the law of war, but individuals in the field are only expected to derive courses of action from them when no specific rule of either treaty or customary international law applies. The plain fact is that there are specific norms governing the treatment of the dead which take precedence over the individual reasoning of a junior officer on the ground. Indeed, an essential element of the principle of necessity is that the action being justified as necessary must NOT conflict with any other rule of the law of war.

(3) The Breakdown of Core Military Values. Veterans Al (Aviator47) and Ret Army Guy rightfully express concern about the continuing occurrence of events in our professional army which arguably should be recognized as wrong even absent legal norms making them so. The best I can do is suggest that when our most senior officials keep publicly branding every adversary as a terrorist and endeavor to link them all to the outrages of 9/11 while denying the applicability of conventional law of war provisions, they must bear some responsibility for the unfortunately all too predictable results. As a nation we need to recognize that wars are fundamentally about achieving desired political results, not a game where winning specific battles or scoring more enemy kills counts. Those who contributed to developing the law of war, as well as professional soldiers who followed it regardless of whether violations were likely to prosecuted or not, recognized at least implicitly that how militaries conduct themselves during conflict can impact the outcome. Surely the international fallout over Abu Ghraib, Guantanamo abuses, and the most recent Afghanistan incident should drive this point home to even the most jaundiced observer.

A final point for Jon – the legal principle that the dead and wounded of both sides be treated without adverse distinction has been part of the law of war for at least a century. Would you be defending this officer if he’d burned American soldiers’ bodies just 24 hours after their deaths? Do you think their families would understand this to constitute actual necessity? I haven't seen the video and am not familiar with the detailed factual circumstances. But the factual supposition necessary to reach your legal conclusion assumes that these guys were pinned down for an extended period of time in such close proximity to the corpses that they posed an actual health hazard, and that they had absolutely no means to (1) get upwind from the bodies, (2) move away from them to a “safe” distance, (3) encase them in body bags or other plastic sheeting, (4) evacuate them, (5) bury them, or (6) turn them over to locals for disposition. That logically means the Psyops guys were with them all the time? If they were, it certainly increases the likelihood that they participated in the decision to burn the bodies and that it was not purely a matter of necessity as you assert. But if they were not, it suggests that the corpses could presumably have been sent out by the same means they got in. Under your version of events, doesn’t it also mean that guys who were already pinned down so badly they couldn’t move even a short distance from the corpses are then deliberately inviting further attack on their position with that silly taunt apparently scripted by the Governor of California? Sorry, but I simply don’t think the strained version of events necessary to uphold your legal argument is credible.

Jon’s “defense counsel” view of the current Afghan cremation furor (immediately below) has generated tremendous commentary about our military’s values, but curiously misses some of the core legal issues. First, as Charles Gittings notes in one of the comments, it selectively quotes from the full language of the relevant Geneva provision, article 17 of Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. The full text of that article includes requirements for honorable interment “if possible” according to the deceased’s religion, and where cremation does take place, the ashes must be collected and preserved for turnover to the home authorities. Only the most hardened cynic or one totally ignorant of Islamic culture could argue that incompletely burning a Muslim’s corpse and then using it for PSYOPS purposes could comply with these requirements.

Actually, there’s a much better defense against charges of violating a Geneva Convention in this case that I’m surprised a lawyer of Jon’s acumen missed – the President has declared the letter of the Conventions inapplicable to the conflict of Afghanistan although DOD officials do talk about applying their “spirit.” But surely no competent attorney would allow his client to be convicted for violating the “spirit” of the law! (In fact, one would hope that no military convening authority would even allow such charges to be brought).

The real legal basis for prosecution here should not be the Geneva Conventions at all. Although it’s commonplace today to view the law of war as largely synonymous with the Geneva Conventions, and war crimes as beginning with Nuremburg, there is in fact a much larger body of customary law that remains fully applicable regardless of whether specific treaty provisions apply or not. As the government itself noted in defending the 1942 Nazi saboteur military commission before the Supreme Court:

the law of war, like civil law, has a great lex non scripta, its own common law. This ‘common law of war’…is a centuries-old body of largely unwritten rules and principles of international law which governs the behavior of both soldiers and civilians during time of war…The law of war has always been applied in this country.

The United States has tried a number of individuals for such offenses as failure to provide an honorable burial to enemy dead under this common law. The most infamous such case was probably the post World War II trial of Japanese personnel who ate parts of an American serviceman they had killed. Since it was unclear that cannibalism per se was a violation of the law of war, they were convicted of failure to provide an honorable burial. A contemporary restatement of the customary law of war, recently compiled under the auspices of the International Committee of the Red Cross (ICRC) identifies a series of customary norms for treatment of war dead, including requirements that they be collected after engagement without adverse distinction, be protected against despoliation or mutilation, returned upon request of a party to the conflict or next of kin, and be disposed of in a respectful manner. While Jon argues that cremation might have been required due to the condition of the bodies after 24 hours exposure, we all know that the remains of American servicemen would be collected and safeguarded no matter how long they’d been exposed, so the “without adverse distinction” requirement clearly required that these soldiers do better than they did here.

The many American veterans who expressed dismay over these events recognize, even if not stating such in legal terms, that the U.S. military has long prided itself in compliance with the customary law of war. In fact the American Army initiated the modern codification of the law of war via Civil War General Orders No. 100 (the “Lieber Code”), providing the first effort at capturing these norms in a manner suitable to guide the conduct of troops in the field. So whether the conduct in question violates a Geneva Convention provision, or even whether the Geneva Conventions can lawfully be used as the basis of prosecuting our soldiers in Afghanistan misses the point. Violations of the customary law of war are chargeable under Article 134 of the UCMJ and the conduct at issue here is clearly triable by a general court-martial.