Even Wars Have Laws: Upholding an American Tradition TJ Adhihetty

ince the founding of this nation, Americans have lived by the belief that wars have Revolution.”5 laws. Even in the most morally-challenging times, the principles of international General Washington remained stead- Shumanitarian law (IHL)1—which provide basic protections for the vulnerable, fast to basic values. He instructed the such as civilians, prisoners of war, and sick and injured combatants—have been Continental Army to treat captured championed by leaders like George Washington and Abraham Lincoln. However, Hessian and British troops humanely, recent public opinion polls indicate that the difficult lessons learned by previous despite the poor treatment of American generations may be soon forgotten, especially by young Americans. prisoners by the British army and the fact that wounded American soldiers were sometimes shown no mercy.6 After Today’s political landscape is differ- be used to gain information from the the Battle of Princeton in January 1777, ent from that of the eighteenth and nine- suspected bomber.3 Washington wrote to one of his most teenth centuries, but both the practices Alarmingly, young adults are the most trusted officers regarding the British and principles developed by previous likely to support the use of torture and prisoners and stated: “Treat them with American leaders should help guide us other aggressive interrogation techniques. humanity, and Let them have no reason as we address difficult questions like the In 2007, the Pew Research Center found to Complain of our Copying the bru- treatment of detainees and the issue of that only 25% of young respondents tal example of the British army in their torture. The rationale for their actions is (18–29 years old) believed that torture Treatment of our unfortunate brethren…. a strong justification for observing basic is never justified.4 Older Americans held Provide everything necessary for them protections during modern armed con- greater resistance to the use of torture; on the road.”7 In the face of adversity, flicts, and as we prepare to observe next 27% of those 30–49 years of age, 34% Washington believed that morality was year’s 150th anniversary of the begin- of those 50–64 years of age, and 36% of still essential. ning of the Civil War, their lessons are those 65 years or older ruled out torture When the United States was tested also quite poignant. as an option. decades later during the Civil War, These views towards torture are in Dr. Francis Lieber gave the world the A Torturous Change in Beliefs sharp contrast to the actions and prin- first codification of the principles of The founding fathers would be shocked. ciples of America’s first generations. international humanitarian law. Lieber In June 2009, an AP-GfK poll revealed In his Pulitzer Prize-winning book, was a soldier, a father of three soldiers that 52% of American respondents Washington’s Crossing, historian David of the Civil War, a resident of both the believed it was (at least) sometimes jus- Hackett Fischer maintains that General South and the North, and a distinguished tified to use torture against suspected George Washington fulfilled humanitar- academic. He was commissioned by terrorists to obtain information about ian ideals not merely by his words, but President Lincoln to draft a code of regu- terrorism activities, while only 29% of through his actions. Fischer writes: “In lations for the Union army. The content respondents believed that torture could 1776, American leaders believed it was of the 1863 Lieber Code, as it has come never be justified.2 Six months later, a not enough to win the war. They also had to be known, is undoubtedly influenced poll conducted by Rasmussen Reports to win in a way that was consistent with by the fact that his sons were fighting on shortly after the attempted airline the values of their society and the prin- opposite sides of the Civil War. bombing on December 25, 2009, had ciples of their cause. One of their greatest Dr. Lieber’s words remain relevant in a similar outcome. In that survey, 58% achievements in the winter campaign of modern armed conflict. Among the 157 of U.S. voters agreed that waterboarding 1776–1777 was to manage the war in a articles of the Code, there are several (simulated drowning) and other aggres- manner that was true to the expanding provisions specifically regarding the sive interrogation techniques should humanitarian ideals of the American treatment of prisoners and the prohibi-

October 2010 259 tion against torture. For example, Article As the former director of West Point’s ing words, he replied that it is torture 80 states: Law of War program, Solis writes: and is in violation of the 1949 Geneva Conventions and the 1984 Convention Honorable men, when captured, Its impact in the United States against Torture, which was signed during will abstain from giving to the enemy and internationally was great and President Ronald Reagan’s administra- information concerning their own long-lasting as the first codification tion. In terms of the belief that torture army, and the modern law of war for soldiers in the field of custom- secures valuable intelligence information, permits no longer the use of any ary rules of battlefield conduct. McCain stated: violence against prisoners in order Much of [law of armed conflict] to extort the desired information or that has followed…even the 1949 But look, I think that it’s important to punish them for having given false Geneva Conventions, owe substan- for us to recognize that most mili- information. tial debts to Francis Lieber and his tary people don’t believe we should 1863 Code.9 torture people and most military As with the orders of General and FBI people say that you can Washington, both American values These American values about tor- gain better results through other and practical considerations were at ture and treatment of prisoners of war techniques because once you hurt the foundation of the Lieber Code. In have had an influence around the world. someone badly enough, they’re going a letter dated May 20, 1863, Dr. Lieber The Geneva Conventions of 1949 have to tell you whatever they want you to wrote to Major-General Henry Halleck been adopted by 194 nation-states. The hear in order to make it stop. That’s requesting that he utilize the Code and four Geneva Conventions and the two pretty logical. So we can gain better issue orders against Union soldiers: Additional Protocols of 1977 provide information through using different specific rules to safeguard combatants techniques which are not in viola- I know by letters from the West who are wounded, sick, or shipwrecked; tion of any of the treaties or obliga- and the South, written by men on our prisoners of war and civilians; as well as tions, not to mention our image as side, that the wanton destruction of medical personnel, military chaplains, a nation.11 property by our men is alarming. It and civilian support workers of the does incalculable injury. It demor- military. As described by Solis: “The By contrast, most Americans are under alizes our troops; it annihilates four 1949 Geneva Conventions are the the impression that torture is necessary wealth irrecoverably, and makes a cornerstone of the [law of armed conflict]. for gaining valuable information to keep return to a state of peace more and They are the most ratified treaties in the the country safe. A Rasmussen Reports more difficult. Your order, though history of the world.”10 If the historical poll of August 2009 found that a remark- impressive and even sharp, might be values prohibiting torture and mistreat- able 44% of people held the opinion that written with reference to the Code, ment of prisoners of war are universally waterboarding and other harsh interro- and pointing out the disastrous con- adopted today, why are Americans debat- gation techniques very likely helped to sequences of reckless devastation, in ing these values? secure valuable intelligence information, such a manner as not to furnish our No one knows the importance of pro- and a further 21% said those measures reckless enemy with new arguments tections for prisoners and the prohibi- were somewhat likely to have helped.12 for his savagery…8 tion against torture better than a former Education about international humani- prisoner of war. Just ask Senator John tarian law and humanitarian values is, If humanitarian values were essential McCain. On October 26, 1967, his Navy therefore, absolutely necessary. in America’s bloodiest war, it stands to plane was shot down over Vietnam forc- The Third Geneva Convention pro- reason that they should not be so quickly ing him to eject and suffer two broken tects in clear terms prisoners of war like forgotten in today’s modern conflicts. arms and a leg. For five and a half years, McCain and is “a treaty born in no small Senator McCain was held as a prisoner measure of the suffering of American Modern Protections and Why They of war at the infamous “Hanoi Hilton,” prisoners and of those of other nations.”13 Matter where he was denied necessary medi- It outlines conditions for the beginning of Modern international humanitarian law cal treatment, was often beaten by his captivity, care during captivity (particu- can trace its roots to the Lieber Code. North Vietnamese captors, and spent larly the state of living quarters; hygiene Professor Gary Solis, who served two much of his time in solitary confine- and medical attention; religious, intel- tours of duty in Vietnam, describes ment. In an interview with Fox News last lectual and physical activities; food and the impact of the Lieber Code in his year, McCain was asked whether water- clothing conditions), labor, and relations 2010 book, The Law of Armed Conflict, boarding is torture or if it is an enhanced with the outside world as well as between International Humanitarian Law in War. interrogation technique. Without minc- prisoners and the authorities. Beyond

Social Education 260 the upkeep of prisoners, various provi- render was that they believed the coali- ensure that the detainees’ life, dig- sions specifically protect prisoners from tion forces would treat them humanely nity and fundamental right to legal physical and psychological harm. Article as prisoners of war. Later, in the wake protections are respected, and that 17 states: of revelations from Abu Ghraib prison ill-treatment is prevented. and allegations of torture at Guantanamo No physical or mental torture, Bay prison and other sites, this principle • The visits enable the ICRC to track nor any other form of coercion, may was emphasized in another way. In an detainees’ whereabouts and make be inflicted on prisoners of war to interview, former Secretary of State recommendations to the detaining secure from them information of General (ret.) Colin Powell made a very authorities concerning any improve- any kind whatever. Prisoners of clear point: ments in the conditions of detention war who refuse to answer may not that may be necessary. be threatened, insulted, or exposed I think we ought to remove this to unpleasant or disadvantageous incentive that exists in the presence • The ICRC makes these observations treatment of any kind. of Guantanamo to encourage people as part of its ongoing confidential and to give radicals an opportunity dialogue with the detaining authori- It is important to note that almost to say, you see, this is what America ties. all of the provisions of the Geneva is all about. They’re all about torture Conventions are focused exclusively on and detention centers.14 • The ICRC also strives to ensure that international armed conflict. However, detained persons can re-establish Article 3, which is common to all four In a meeting with a former high-rank- and maintain contact with their Conventions (Common Article 3), also ing al Qaeda member, Senator McCain families. provides similar protections during inter- recalls: nal armed conflicts. It states: “He said, But my greatest recruiting • Each year, the ICRC visits roughly tool, he said, I recruited thousands of half a million prisoners and detain- Persons taking no active part in young men—Abu Ghraib. And so you ees in more than 70 countries. the hostilities, including members know, you hear it from al Qaeda opera- of armed forces who have laid down tives that when we torture people and • With the consent of U.S. authorities, their arms and those placed hors de it becomes public, then it helps them the ICRC visits people captured in combat by sickness, wounds, deten- recruit.”15 International humanitarian the context of armed conflict and tion, or any other cause, shall in all law does not simply represent a set of the fight against terrorism who are circumstances be treated humanely, laws to follow. There are real costs to being held at U.S. detention facilities without any adverse distinction American troops and military success in Guantanamo Bay, Cuba, as well founded on race, colour, religion in not adhering to its principles. as Afghanistan and Iraq. or faith, sex, birth or wealth, or any other similar criteria. To this end the Maintaining These Principles • The ICRC has been visiting detain- following acts are and shall remain The International Committee of the Red ees at Guantanamo Bay since January prohibited at any time and in any Cross (ICRC) serves as the guardian of 2002 and, as of October 2009, had place whatsoever with respect to the the Geneva Conventions. As an inde- carried out 69 visits at the detention above-mentioned persons: (a) vio- pendent humanitarian organization, it facility.17 lence to life and person, in particular has been visiting people detained in con- murder of all kinds, mutilation, cruel nection with armed conflicts since 1915, Complementing these visits by the treatment and torture… when its delegates first negotiated access ICRC, U.S. leaders have implemented to tens of thousands of prisoners of war international humanitarian law through a While respecting these Conventions held during the first world war.16 The domestic legal framework. The Executive certainly maintains America’s moral ICRC’s practice of visiting combatants Orders issued by President Obama standing and encourages other countries captured in international armed conflicts on January 22, 2009, reaffirmed that to reciprocate, adhering to the rule of law is enshrined in the Geneva Conventions, Common Article 3 is a minimum stan- also contributes to the overall success of and its work around the world helps to dard for the treatment of anyone detained a military campaign. At the commence- provide for basic rights and educate by the U.S. in connection with armed ment of the second Gulf War in 2003, decision-makers on the importance of conflict. Further, in Hamdan v. Rumsfeld, thousands of Iraqi soldiers voluntarily these rights. As reported by the ICRC: the U.S. Supreme Court held that the pro- surrendered to U.S. and British forces. tections of Common Article 3 applied Arguably, one of the reasons for their sur- • The purpose of the ICRC visits is to to detainees at Guantanamo.

October 2010 261 Teaching Activities The following teaching activities utilize the free Red Cross curriculum Exploring Humanitarian Law (EHL). Information about EHL can be found at www.redcross.org/ehl

1. Lead a discussion around the photo of the blind folded captive in Module 2 of EHL located at http://ehl.redcross. org/curriculum/module2/down- loads/M2_Exp2A-3.pdf. Ask students to imagine themselves in the shoes of the captive or his guards. Have them write down their thoughts. Possible questions include:

• What might the captive be thinking? The guards?

• Have each student discuss 2. Lead a class discussion by asking the the other half to make notes on how his or her thoughts with a following questions: the ICRC visits help prisoners. Lead a partner. discussion with the following ques- • Why might a person detained tions: How does what you saw in the Suggest these points, one at a time: in relation to an armed con- video relate to the rules you proposed flict be at risk? and the protections under interna- • Imagine that the captive is tional humanitarian law? What skills your brother. How would • What dangers and difficul- are needed to conduct prison visits? you want him to be treated? ties might prisoners face in Why? captivity? 4. Present the video “A prisoner remem- bers” found at www.youtube.com/ • Imagine that the captive Ask small groups of students to think watch?v=tPEdynGkeh8. Ask stu- killed your friend in battle. about what must be done to protect dents: How would you want him to the human dignity of people detained • What feelings do this pris- be treated? Why? in relation to an armed conflict. Have oner’s memory evoke? them write down suggestions for spe- • How should a man or woman cific rules. Do the rules identified by • Are you surprised that the taken prisoner during armed students cover all the risks identified door was opened? conflict be treated? by the class? • Why do you think the prison • Suppose prisoners have 3. Watch the video “Light in the dark- authorities decided to open important information. ness” found at www.youtube.com/ it? Should that affect their treat- watch?v=1GC2SIlHHCs or read the ment? video transcript at www.ehl.icrc.org/ nonjoomla_html/Student_videos/ • In what way is a prisoner’s transcript_light.html. Ask half of the human dignity at risk? A class to make notes on what the ICRC guard’s? does while visiting prisoners and ask

Social Education 262 In February 2010, General David this important tradition. Petraeus, commander at the time of U.S. Central Command, was asked about Notes his view on aggressive interrogation 1. In general, international humanitarian law is also referred to as the law of armed conflict. Curriculum Resources methods to gain intelligence from a 2. GfK Roper Public Affairs & Media, “AP-GfK Poll,” for High School Social suspect. He responded: May 28-June 1, 2009, http://surveys.ap.org/data/ GfK/AP-GfK%20Poll%20Topline%20Political%20 Studies Teachers only%20060209.pdf. I have always been on the record, 3. Rasmussen Reports, “58% Favor Waterboarding in fact, since 2003, with the concept of Plane Terrorist To Get Information,” December Connect the 31, 2009. past to today of living our values. And I think that 4. The Pew Research Center for the People and the whenever we have, perhaps, taken Press, “Trends in Political Values and Core expedient measures, they have Attitudes: 1987-2007,” March 22, 2007, http:// Bring meaning people-press.org/reports/pdf/312.pdf. turned around and bitten us in the to complex 5. David Hackett Fischer, Washington’s Crossing international backside. We decided early on in (New York: Oxford University Press, 2004), 375. the 101st Airborne Division we’re 6. Ibid., 377-379. issues just going to … obey the Geneva 7. Ibid., 379. 8. Thomas Sargeant Perry, ed., The Life and Letters Deliver multiple perspectives Convention, … to move forward of Francis Lieber (reprint: Clark, N.J.: Lawbook from top scholars with that. That has, I think, stood Exchange, 2006; original publication: Boston: James R. Osgood and Co., 1882), 334. elements in good stead. We have 9. Gary Solis, The Law of Armed Conflict, Engage students in citizenship worked very hard over the years, International Humanitarian Law in War. (New indeed, to ensure that elements York: Cambridge University Press, 2010), 46. like the International Committee 10. Ibid., 81. 11. Fox News, On the Record w/ Greta, “Sen. John of the Red Cross and others who McCain ‘On The Record’ on Torture, Pelosi and see the conduct of our detainee More,” May 22, 2009, www.foxnews.com/ story/0,2933,521157,00.html. operations and so forth approve 12. Rasmussen Reports, “49% Oppose Justice of them. Because in the cases where Department Probe of Bush-era CIA,” August 27, that is not true, we end up paying 2009. 18 13. Solis, 81. a price for it ultimately. 14. CBS News, Face the Nation, “Gen. Colin Powell,” February 21, 2010, www.cbsnews.com/htdocs/pdf/ These comments, especially FTN_022110.pdf?tag=contentMain;contentBody. 15. Fox News, “Sen. John McCain ‘On The Record’ the concept of “living our values,” on Torture, Pelosi and More.” echo the orders of General George 16. ICRC, “Persons Detained by the U.S. in Relation Washington. to Armed Conflict and the Fight Against Current Issues, Terrorism—the Role of the ICRC”, October 26, 2009. World History, U.S. History Conclusion 17. Ibid. Supplemental Classroom Videos The United States has a rich history of 18. MSNBC, Meet the Press, “Petraeus, Pawlenty, roundtable,” February 21, 2010, www.msnbc.msn. promoting and upholding humanitar- com/id/35493976/ns/meet_the_press/. Print & Digital ian principles. These experiences have Versions Available not only influenced the development of the law in this country, but have TJ Adhihetty received his Master of Laws in � �� had a profound effect on international International Legal Studies with Distinction and humanitarian law. In responding to the his Certificate in International Human Rights �� difficult questions posed by current Law from Georgetown University in May 2010. armed conflicts, we can look to this He has worked in the International Humanitar- �� strong tradition to guide us to answers ian Law Dissemination Unit of the American Red at Brown University Cross in Washington, D.C. and is currently a legal that adhere to the nation’s fundamental officer at the International Criminal Tribunal values. Those who have defended this for Rwanda in Arusha, Tanzania. Mr. Adhihetty Visit our web site country and many who serve in the expresses his appreciation to Isabelle Daoust for full catalog, newsletters & free country’s leadership know the impor- and Mat Morgan for their invaluable advice “Teaching With the News” lessons. and encouragement regarding this article. The tance of international humanitarian views expressed in this article are those of the law. It is now up to the next genera- author and do not necessarily reflect those of the �� tion to learn about and respect these American Red Cross. principles to ensure that we carry on Explore the Past, Shape the Future

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