Crimes, War Crimes and the War on Terror

[Rex Brynen]

Nothing wrong with that . Still and all, Khadr met the UN definition of being a "child soldier". We can argue back and forth whether it is right or wrong in any individual case (or in general), but under existing international agreements, he meets the definition and law is all about definitions.

The UN is NOT a legislative body; they may propose things to their hearts content but they do not produce laws. Yes, Law is all about definitions or, more correctly, pocket lining arguments about definitions but it becomes sort of counterproductive when attempts to apply it fly in the face of common sense. A 15 year old can kill you just as dead as can a 30 year old.

The UN does actually, under some circumstances, produce laws--both in the sense that UNSC resolutions are (supposedly) binding on members states, and in that UN conventions comprise treaty law which are, when entered into by the Execute and duly ratified by the US Congress, comprise US law under Article VI.2 of the US Constitution.

That's a quibble, however

The Optional Protocol to the Convention on the Rights of the Child (2002) prohibits the recruitment or use of children in armed conflict, but doesn't actually say what you are supposed to do when you capture one, beyond stating (rather ambiguously):

States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.

One could argue that incarceration in Gitmo is "demobilization" of a sort (although I wouldn't).

More broadly, there are several reasons for playing by the rules of international humanitarian law:

1. Reciprocity--because you want others to. Of course, its doubtful AQ will, but nonetheless one doesn't want to erode global norms that may be useful in other contexts.
   
2. Because you agreed to, and you don't want to erode your credibility in future treaty negotiations.
   
3. Because of the political costs of not doing so (for example, the enormous cost of IHL violations at Abu Ghreib), or the political gains from doing so. I would argue that Gitmo policies and procedures have been a significant self-inflicted wound for the US, although I recognize that the issue is an inherently difficult one.
   
4. Because its the right thing to do. I actually think this is important.

I've noticed a tendency in many milblogs (not here) to treat IHL as an evil concoction by lawyers who are perversely seeking to prevent "us" from winning. Yet (military and civilian) international lawyers, diplomats, and technical experts involved in treaty negotiation are some of the smartest, best-informed people that I've ever known. Their IHL work involves trying to balance the considerations above, national interest, the compromises of diplomatic-legal coalition-building, and (to the extent they can) the "greater good" in a way that leaves us off better off than we were before--which, given the competing interests, complexity, and evil-doers involved, is no easy task.

There, having established my credentials as a defender of the indefensible (lawyers), I'll next defend the Air Force...