Part II: The Training of the Military: National Law and the Teaching of the Geneva Conventions - International Justice, War Crimes, and Terrorism: The U.S. Record

Social Research, Winter, 2002 by Arthur C. Helton

Introduction: Training the Military

THIS section on "The Training of the Military: National Law and the Teaching of the Geneva Conventions" follows the discussion on just and unjust war. Although the previous authors pose profound and fundamental questions about the legitimacy of the use of force, the papers in this section assume the legality of the use of military force (that issue is, however, also touched on in the papers that follow). The core issue for our inquiry involves the methods and the modes of the use of force--the rules of the game, if you will. Some would call the subject the honor of the warrior in the conduct of armed conflict; that is, regulating the use of deadly force.

Not many of us have had the opportunity to delve deeply into the substance and structure of the Geneva Conventions. The extraordinary times in which we find ourselves--a war on terrorism--has changed that. The treatment of the detainees held by the United States military at the Guantanamo Bay naval base in Cuba has initiated a popular and detailed debate over the provisions of the Geneva Conventions--notably the third Geneva Convention of 1949 and the first Protocol Additional of 1977, relating to the protection of prisoners of war.

A study of humanitarian law would find ample references to terms such as "war" and "terrorism." But we would not necessarily see specific reference to a "war on terrorism." The current situation presents a series of dilemmas and challenges to a legal framework that has been refined over half a century and that can draw on even earlier antecedents. The new methods of war fighting, what some have called "virtual war," where targeting decisions are made far away from the places where missiles and bombs impact, also present new challenges, including legal concerns and responsibilities in the conduct of war. The controversy regarding what happened at the Jenin refugee camp on the West Bank in large measure was to be an inquiry by the United Nations into whether or not disproportionate force was used in the conduct of a conflict styled as a form of self-defense in the war on terrorism. But the question was rendered moot when Israel objected to the inquiry.

Among the terms that we will not find in the lexicon of humanitarian law is "collateral damage." We will see the issue discussed in terms of military and civilian objects in the course of war fighting. In many ways, humanitarian law has become a template for human rights groups to monitor the conduct of military operations, including the ambiguous circumstances in which we find ourselves today. This will be very much part of the story in terms of reporting on Israeli military actions in the Palestinian territories. Or in Afghanistan, and perhaps Iraq and the Philippines.

In this section a distinguished panel of military law experts addresses these questions, all of which have profound implications for military training. The discussion lacks, however, a representative from the International Committee of the Red Cross (ICRC), which has a special office under the Geneva Conventions. The agency's commentaries are an important source of doctrine and information about treaty obligations in the field of humanitarian law. The ICRC is more than a nongovernmental organization since it has a legal personality in international law by virtue of the special responsibilities imposed on state parties by the Geneva Conventions to recognize the special position of the ICRC, and to disseminate information about the treaty provisions. This dissemination responsibility includes the training of the military.

Arthur C. Helton is Senior Fellow for Refugee Studies and Preventive Action, and Director of Peace and Conflict Studies at the Council on Foreign Relations. He is coauthor of Forced Displacement and Human Security in the Former Soviet Union: Law and Policy (2000), and his articles have appeared in the New York Times and Newsweek.