Saturday, October 22, 2005

The Golden Rule of Enemy Detention

I just finished attending the International Law Association Conference in New York and one of the highlights was the insightful commentary on the treatment of detainees in the war on terror. I was particularly impressed by a new professor, Geoffrey Corn of South Texas Law School. Corn was a former Special Assistant to the Judge Advocate General for Law of War Matters, and therefore spoke with far more authority than the typical idealistic academic.

There was much debate on the proper standard for detainees. Professor Corn cut to the chase and articulated what is the best standard that should be applied in the current war on terror. That standard is that you should do nothing to an enemy detainee that you would not wish the other side to do to one of your subordinates. Note that it is not the treatment you would wish for yourself if you were detained and interrogated, for a soldier, if necessary, will willingly die for his country rather than divulge certain information. But rather it is the standard of treatment that you would want one of your men to face if he were detained.

Corn emphasized that the need for legal standards is essential not just for the detainee, but also for the one who detains. It is for their humanity as much as the detainees that we need to adhere to standards.

Corn stated that he regularly taught this standard in JAG school. The substance of such an admonition is also expressed in Army Field Manual 34-52 ("The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorized nor condoned by the US Government....The absence of threats in interrogation is intentional, as their enforcement and use normally constitute violations of international law and may result in prosecution under the UCMJ.")

This standard is a simple one, but one that brilliantly resolves many problems associated with an admittedly incommensurate rule. One might call it the Golden Rule of Detention. It also happens to resonate with one of the primary motivations for state compliance with international law: reciprocity.

UPDATE: There is an informative article in the New York Times Magazine addressing the difficulty of where to draw the line when soldiers are on the ground facing threatening circumstances. It addresses the question of "the line that separates nonlethal force that is justified - and sometimes very painful - from nonlethal force that is criminal." Not directly relevant to enemy detention, but underscores the need to draw lines between what is criminal mistreatment and what is not. Read it.


Blogger Charles Gittings said...

Excellent post Prof. Alford. Now if only DOJ and the D.C. & 4th Circuits would find a faint clue...

10/22/2005 5:03 PM  
Blogger Andreas Paulus said...

Dear Professor Alford,
I fully concur in Mr Gitting's acclaim. However, I suppose Professor Corn also mentioned that this is exactly the standard required by Article 87 of Geneva Convention III for the criminal prosecution of POW's. After all, it appears that the Geneva Conventions are less quaint than the current administration seems to believe.
Andreas Paulus, University of Munich

10/26/2005 8:33 AM  
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