Friday, March 30, 2007

Is Iran Subject to Reciprocal Threats and Promises?

Among the reasons that the Bush administration has given for not treating al Qaeda and other Taliban captives as prisoners of war is that as blatant violators of the laws of war themselves, these detainees forfeit the protections of the Geneva Conventions. In a 2002 FindLaw column, I explained why the claim was plausible, especially with respect to al Qaeda, but I should have noted then that even suspected al Qaeda members are entitled to the Geneva Conventions' protection until their status was determined by a competent tribunal, pursuant to Article 5 of the 1949 Convention. Since that time, my column has sometimes been cited in support of the administration's decision not to afford Gitmo detainees POW status, even though I made clear at the time that even if the administration's approach was legally justified, that didn't necessarily make it right as a matter of policy. The crisis over the captive British sailors and marines highlights the point.

Iran's parading of the British captives on television reading what were no doubt scripts would clearly violate the Geneva Conventions' prohibition on humiliating treatment---IF BRITAIN AND IRAN WERE AT WAR. But they're not, at least not yet, and so Iran can plausibly argue that its treatment of the British captives (though not their capture itself, if British gps readings are accurate) is legal. Yet what possible purpose is served by affording military captives less protection if their captors and their home country are not technically at war than they would be entitled to if there were a war on? To me, this sort of hairsplitting is all too reminiscent of our own administration's efforts to evade the Geneva Conventions and domestic law governing treatment of captives.

Is there a relation here? Is it possible that our own parsimonious interpretation of Geneva gives the Iranians cover to engage in similar shenanigans against our guilty-by-association British allies? One might think not on the ground that the Iranians don't care about public opinion or reciprocity. There's certainly something to that. Indeed, Ahmadinejad seems to enjoy defying world or at least Western opinion. Yet that doesn't make our own dancing around Geneva quite irrelevant. For one thing, Iran is not a completely irrational state. For years, the U.S. and Iran, as well as our respective nationals and companies, peaceably settled commercial disputes at the U.S.-Iran Arbitral Claims Tribunal. And for another thing, even if the Iranian government does not itself care about international law, the public in Europe and the rest of the world does. To the extent that perceived U.S. disrespect for international law lowers the bar for the adversaries of the U.S. and its closest ally, that weakens support for tough measures.

Maybe such measures are doomed because there's no way the Russians will go along in the Security Council under any circumstances. And maybe tough talk with Iran is actually counter-productive. But at least to the extent that we and our allies will sometimes want to be able to invoke international law credibly, the current crisis illustrates that we're less able to do so than we would have been had we generously observed its letter and spirit.


Madisonian said...

Yet what possible purpose is served by affording military captives less protection if their captors and their home country are not technically at war than they would be entitled to if there were a war on?

I'm not sure I understand this. The reason that the Third Geneva Convention has detailed rules for the treatment of POWs is that it's perfectly legal to hold such persons captive. In the absence of an armed conflict, however, members of an state armed forces are entitled to significantly greater protection: the protection from being taken captive at all. Thus, if the British sailors were where they say they were, Iran's argument that it's lawful to parade them before TV cameras isn't "hairsplitting"; it's just false (and entirely beside the point). Iran has no legal right to put the sailors on television because it had no legal right to detain them in the first place.

Michael C. Dorf said...

It's hard to know how to respond to this comment since it basically agrees with me that the Iranian position is absurd.

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