The Consortium

The day after the terrorist attacks on the World Trade Center and the Pentagon, George W. Bush assured Americans that “we will rally the world” in building a coalition to punish those responsible.

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The world did rally. Virtually every government expressed outrage at the murder of an estimated 3,000 civilians. Around the world, U.S. allies and adversaries condemned the terrorism unequivocally. Most of that international support held through the U.S.-led attack against Osama bin Laden's al Qaeda operatives and their Taliban hosts in Afghanistan.

But many U.S. allies now believe that the Bush administration is veering back to its pre-Sept. 11 strategy of go-it-alone unilateralism, reasserting a studied contempt for international agreements and ignoring world opinion.

Europeans, who rallied to the U.S. cause after Sept. 11, are leading the protests against Bush's selective application of the Geneva Conventions toward prisoners at Camp X-Ray in Guantanamo Bay, Cuba. Allies were troubled, too, by Bush’s belligerent State of the Union address designating Iran, Iraq and North Korea as an “axis of evil.” And the allies are upset at Bush's continued snubbing of the Kyoto Treaty on global warming.

Having won on the battlefields of Afghanistan, the Bush administration now risks losing the world's support that is vital in the long-term battle against terrorism. The turning of world opinion against aspects of U.S. policy is especially striking given the near-universal support after Sept. 11.

Yankees Caps

Immediately after the attacks, the United Nations, the European Union and other multilateral organizations expressed solidarity with the United States. The Organization for Security and Cooperation in Europe condemned the slaughter in New York and outside Washington as “an attack on the whole of the international community.”

NATO for the first time invoked Article 5, which states that an attack on any member state is an attack on all. The flags of most nations flew at half-mast. Minutes of silence were observed all over the world on Sept. 14.

I went to the vigil outside the U.S. Embassy in Copenhagen, Denmark, and saw a scene repeated on sidewalks in front of U.S. embassies everywhere – a sea of flowers, candles, notes and even New York Yankees baseball caps. There was a belief that Sept. 11 “changed everything” and imbued a hope for multilateral cooperation to build a better and safer world.

Even countries not natural U.S. allies, such as Uzbekistan in the former Soviet Union, offered help. They hatched secret bilateral agreements trading assistance in the U.S. attack on Afghanistan for U.S. help in fighting their own terrorist threats.

One of the first signs, however, that Bush might overplay his hand was his excessive rhetoric as he vowed to mount a "crusade" that would "rid the world of evil."

While the war in Afghanistan drew widespread international support, some U.S. actions caused concern. Possibly thousands of Afghan civilians died as the U.S. dropped "cluster bombs" and "Daisy Cutters" and used other highly lethal ordnance. The U.S. government also seemed willing to tolerate human rights abuses by new U.S. allies who saw the war on terrorism as a carte blanche to rid themselves of troublesome dissidents.

Turning Point

But the turning point of Bush's regression to unilateralism appears to have been his decision to effectively waive the Geneva Conventions as they pertained to Taliban and al Qaeda prisoners who surrendered in Afghanistan and were flown to the U.S. military base at Guantanamo Bay.

The international outcry over Camp X-Ray began when the living conditions of the prisoners were revealed, and particularly after photographs were released showing the detainees in open-air cages being subjected to what looked like sensory deprivation techniques.

European leaders – notably the German and Dutch governments, British parliamentarians and the European Union – and human rights groups objected to the treatment. Some of the loudest criticism came from the staunchest U.S. ally, the United Kingdom, where three cabinet ministers – Robin Cook, Patricia Hewitt and Jack Straw – expressed concern that the prisoners were not being treated well and that international agreements about the treatment of prisoners of war were being breached.

The U.N. High Commissioner for Human Rights, Mary Robinson, also objected to the treatment of the detainees and called on the Bush administration to follow the Geneva Conventions. In a Jan. 19 column in the British Independent, Robinson argued that because the Afghanistan conflict was of an international nature, “the law of international armed conflict applies.” She took issue with the administration's assertion that the prisoners were “unlawful combatants” and thus outside the protections of the Geneva Conventions.

The foreign press also criticized the Bush administration's actions. On Jan. 22, the mainstream Danish daily, Politikken, carried a two-page spread with photos of the prisoners and their conditions, diagrams of their cells and analysis of their legal status. As part of the package, the paper ran an article about the CIA-backed contra war in Nicaragua in the 1980s, a war condemned by the World Court as illegal yet still pursued by the Reagan-Bush administration.

The Politikken article called the contras terrorists and implied that Washington acted hypocritically, picking and choosing which international laws to follow and which to ignore.

In an article about Camp X-Ray, The Mirror of London admonished Prime Minister Tony Blair to “stop this brutality in our name,” saying “these prisoners are trapped in open cages, manacled hand and foot, brutalized, tortured and humiliated.”

Human rights groups weighed in. Amnesty International expressed concern about the tactics being used and the secrecy surrounding the camp. “Keeping prisoners incommunicado, sensory deprivation, the use of unnecessary restraint and the humiliation of people through tactics such as shaving them, are all classic techniques employed to ‘break’ the spirit of individuals ahead of interrogation,” the human rights group said.

British human rights attorney Stephen Solley said the treatment of the suspects was “so far removed from human rights norms that it [was] difficult to comprehend.”

Human Rights Watch said, “If there is doubt about anyone’s status as a prisoner of war, the Geneva Conventions require that he be treated as such until a competent tribunal determines otherwise. To our knowledge, no tribunals have made any such determinations.”

POW Status

The issue of POW status was central to the debate. If detainees are deemed POWs, they are accorded certain rights by the Geneva Convention Relative to the Treatment of Prisoners of War, of which the U.S. is a signatory party. Among these rights is to be housed in quarters comparable to those of the “Detaining Power’s” soldiers, which the U.S. is clearly not doing. As Article 25 states: “Prisoners of war shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area.”

Also, “prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary,” according to Article 21. Since the U.S. is keeping the prisoners in 6x8-foot cells, with heights of only 8 feet, this too would seem to violate the Convention. It is hard to imagine conditions more confining than Camp X-Ray's cages.

In addition, the “premises provided for the use of prisoners of war individually or collectively, shall be entirely protected from dampness and adequately heated and lighted, in particular between dusk and lights out,” according to Article 25. Outdoor cells fully open to the elements would not protect against dampness. The temperature in Cuba is in the 80s, so perhaps the heating is not relevant, but a strong case could be made that the U.S. is violating the spirit of this provision for the internment of prisoners.

There are other protections of prisoners of war enumerated in the Geneva Conventions that are considered important by human rights groups and the international community. Some are the right of persons suspected of a crime to be informed of their rights, the right to have access to counsel of their choice, the right to silence without that silence being used against them, and the right not to be interrogated in the absence of their counsel.

It is difficult to tell how many of these protections are being respected because visits to the site are strictly controlled and limited. The Red Cross has visited the camp, but under agreement with U.S. authorities, Red Cross officials are operating under their “standard working procedures” which do not allow the Red Cross to “comment publicly on the treatment of detainees or on conditions of detention.” They may only discuss their findings with the detaining authorities.

'Unlawful Combatants'

To counter international criticism, Bush's spokesmen have alleged that the captives are not soldiers in the normal sense but dangerous criminals, though evidence of individual guilt has not been presented.

The administration contends the prisoners are "unlawful combatants" who did not follow the conventions of war as enumerated in Article 4 of the Conventions, that is, they have no responsible command and do not carry their arms openly, wear uniforms with distinct insignia or conduct their operations within the laws and customs of war.

So, the administration claims the Conventions do not apply and the U.S. does not have to follow standards for treating the prisoners as POWs. Still, the administration has said it is treating the detainees "humanely."

The administration's defense prompted an international response rebuffing Bush's arguments. The debate shaped up as follows:

If detainees’ statuses are in doubt, a “competent tribunal” must be convened to determine their status. Before that is done, the detainees must be accorded the rights of a POW. According to Article 5, “Should any doubt arise as to whether persons ... belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

The provision makes clear that as long as the U.S. does not treat them as POWs or does not bring the prisoners before a competent tribunal to determine their status, the U.S. is violating the Convention or simply disregarding it.

As for the Bush administration's argument that the fighters in Afghanistan didn't comport with rules of war regarding uniforms and other behavior, those requirements only apply to militia operating independently of a government’s regular armed forces. The argument cannot apply to the Taliban fighters at Camp X-Ray since they were a ruling government's army.

It could be argued that the al Qaeda fighters can be characterized as members of a militia or a volunteer corps linked to the Taliban. But whether the exclusions apply, as the Bush administration contends, would depend on specific factual determinations that have not been explained.

In its description of the al Qaeda fighters as "unlawful combatants," the Bush administration also could be criticized for practicing selective judgments given the history of al Qaeda. Many of the Arab units that formed al Qaeda – including those under Osama bin Laden – were first brought to Afghanistan in the 1980s as part of the CIA-backed war against Soviet forces. In that context, U.S. officials regarded bin Laden's Arab units as international "freedom fighters."

Political arguments aside, the question of U.S. compliance with the Geneva Conventions would hinge on the findings of a competent tribunal that has not been established. Since human rights groups and the U.N. High Commissioner on Human Rights have expressed doubt as to the POW status, the Geneva Conventions seem clear that a tribunal is needed to determine the status of individual prisoners, to find out whether they are Taliban or al Qaeda fighters, and to clarify the relationship between the Taliban and al Qaeda fighters.

Weak Position

In recent weeks, Bush seems to have recognized his weak legal position, although he remains politically buoyed by the American public's disinterest in the legal niceties of international law. The lingering fury over Sept. 11 has freed Bush's hand to give only token concessions to the world community.

Still, after several governments warned that the U.S. was weakening the foundations of international law, Secretary of State Colin Powell urged Bush to reverse his position and declare the detainees prisoners of war. In response, on Feb. 7, Bush finally agreed to apply the Geneva Conventions, but adopted such a narrow interpretation that the shift seems largely rhetorical. Nothing effectively changed.

“President Bush affirms our enduring commitment to the important principles of the Geneva Convention," said White House spokesman Ari Fleischer, adding that “the United States will continue to treat all Taliban and al Qaeda detainees in Guantanamo Bay humanely and consistent with the principles of the Geneva Convention.” He said, “the Geneva Convention will apply to the Taliban detainees, but not the al Qaeda international terrorists.”

But the White House comments appeared to be a case of watch what we do, not what we say – or at least watch what we say very closely. A couple of sentences later, Fleischer said Bush would decide on his own who was entitled to POW status, despite the Geneva Convention’s provision that this decision can only be made by a “competent tribunal.”

In justifying this position, the White House maintained that “the war on terrorism is a war not envisaged when the Geneva Convention was signed in 1949.” The White House said, “the Convention simply does not cover every situation in which people may be captured or detained by military forces.”

Experts on the Conventions challenged this stance. They said that because the conflict in Afghanistan was international in character, the rules applied fully. Historically, too, the Geneva Conventions have applied to a wide variety of conflicts, including guerrilla wars where irregular forces have fought alongside national armies and committed some acts that have been denounced as terrorism.

In a larger sense, Bush seemed to be asserting a personal right to decide when well-established treaties and international agreements should be applied and when ignored.

As for the detainees at Guantanamo, the White House said “many POW privileges” will be provided. Some of the “privileges” include water, medical care, shelter, showers and soap. Denied, however, will be access to a canteen to purchase food, a monthly advance of pay, or the ability to receive scientific equipment, musical instruments or sports outfits. The administration also made clear that the living conditions of the detainees would not be altered to be in line with the rights of POWs.

Left unsaid, too, was whether the detainees will be accorded the right to legal counsel, the right to silence or the right to be interrogated without the use of maltreatment. Secretary of Defense Donald Rumsfeld said the "unlawful combatant" label is necessary to permit interrogation about their possible knowledge of future terrorist operations.

No Coercion

But that argument may be beside the point. Nothing in the Geneva Conventions prohibits interrogation, even of prisoners of war. Article 17 simply states that “every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.” If prisoners refuse to give that information, they may have privileges taken away.

Under no circumstances, however, are prisoners to undergo “physical or mental torture, nor any other form of coercion” in order to extract information. “Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind,” the rule states. The U.S. itself cited this provision most notably in accusing North Vietnam of abusing U.S. pilots shot down while bombing targets during the Vietnam War.

Experts on the Geneva Conventions point out that even if the U.S. were to classify the detainees as prisoners of war, interrogations could proceed. All that would be prohibited would be coercive techniques to extract answers.

A concern of some human rights advocates is that the Bush administration is using the unusual and confining conditions at Camp X-Ray as a device to break the prisoners down in a strategy that would clearly violate the letter and the spirit of the Geneva Conventions.

Whatever the reason for Bush's refusal to apply the Geneva Conventions fully to the detainees, it is angering allies and organizations that oversee humane treatment of POWs. The controversy also is putting in jeopardy the cooperation that had marked Europe's largest-ever police investigations against terrorism. European critics fear, too, that norms of international law may be rendered obsolete in the future, or at least more difficult to enforce.

On Feb. 8, the Red Cross called both the Taliban and al Qaeda fighters prisoners of war fully protected by the Geneva Conventions. “They were captured in combat (and) we consider them prisoners of war,” ICRC spokesperson Darcy Christen told Reuters. The Red Cross and the U.N. High Commissioner on Human Rights also reiterated their position that any dispute over the status of a prisoner must be settled by a tribunal and not by one side of the conflict.

“This is international law à la carte, like multilateralism à la carte," one West European ambassador told the International Herald Tribune. "It annoys your allies in the war against terrorism, and it creates problems for our Muslim allies, too. It puts at stake the moral credibility of the war against terrorism.”

U.S. Exceptionalism

This view holds that Washington is asserting an American exceptionalism in which the U.S. will apply international law when it wants, such as after Iraq invaded Kuwait in 1990, while ignoring the rules when they are inconvenient to U.S. interests. That selectivity comes with a price, however. It erodes the world's respect for legal principles while spreading a worldwide cynicism that might makes right.

Without the “moral credibility” that comes with equal application of law, the ability to pressure others to respect international law and human rights is weakened. It also becomes more difficult to frame the war against terrorism as a battle between civilized values and barbarism.

One example of how this could affect the West’s ability to pressure human rights abusers could be the Russians’ conduct in their war against Chechen terrorists in the North Caucasus, a conflict that previously was a favorite target of U.S. criticism. If Russia were to round up hundreds or thousands of Chechens and treat the Chechens with no regard for international conventions, the West now would not be in much of a position to criticize the conduct. It would be difficult to apply pressure without coming across as hypocritical.

Iraqi president Saddam Hussein, who has been condemned widely by the West for his human rights record, has picked up on this theme, as he criticized the U.S. for not adhering to its own strictures. “They used human rights and the rights of prisoners for propaganda purposes against other countries,” he said. “But when their turn came to uphold those rights, they openly violated them.”

Besides undermining the universal application of international law, this episode reinforces the impression that the Bush administration disdains international agreements and will not accept rules that limit its freedom of action.

Allies are concerned that Bush is slipping back into his pre-Sept. 11 unilateralism. Bush earned that early reputation by backing out of international accords, such as Kyoto Accord and the Anti-Ballistic Missile Treaty, while refusing to cooperate in establishing an International Criminal Court as proposed by the UN.

By brushing aside the Geneva Conventions, Bush has shown again his intent to go it alone when he chooses, even while seeking international cooperation in a global struggle to contain the terrorist threat. His emphasis on a military solution also goes against the views of many world leaders who say the roots of terrorism must be addressed.

Roots of Terrorism

One of those roots is the disparity of wealth in the world, with billions living in abject poverty and a relatively few rich countries enjoying prosperity. This situation fosters an atmosphere of resentment, which can easily spill over into hatred and violence.

Democratic deficit is another issue. As Romanian parliamentarian Adrian Severin pointed out in a speech on Jan. 23, “If poor people have to choose between political authoritarianism and religious fundamentalism, they will be inclined to choose the latter rather than the former.”

This phenomenon can be seen playing out in some of the “stan” countries of Central Asia, where government repression of legitimate political activity has spawned militant fundamentalist groups that see violence as the only way to effect change.

The cultural clash between a globalization-led takeover of local communities on the one hand and a consciousness of tribal identities on the other is another factor that feeds extremism and violence. Terrorism also is closely linked to organized crime, another problem that requires cooperation and intelligence sharing among nations.

Former Vice President Al Gore, who has backed Bush on the war against terrorism, noted this more complex reality in a speech on Feb. 12 before the Council on Foreign Relations. "There is another axis of evil in the world: poverty and ignorance; disease and environmental disorder; corruption and political oppression," Gore said.

"We may well put down terror in its present manifestations. But if we do not attend to the larger fundamentals as well, then the ground is fertile and has been seeded for the next generation of those born to hate us, who will hold these things up before the world's poor and dispossessed, and say that all these things are in our image, and rekindle the war we are now hoping to snuff out," Gore said.

The former vice president, who outpolled Bush for the presidency in 2000 but still lost the White House, noted the difference between the Clinton-Gore attitude toward the world and the Bush view.

"The administration in which I served looked at the challenges we faced in the world and said we wished to tackle these 'With others, if possible; alone, if we must.' This administration seems inclined to stand that on its head, so that the message is: 'With others, if we must; by ourselves, if possible,'" Gore said.

The Bush administration may believe that Europe and other allies have little choice but to get in line once the U.S. launches Phase Two of the war to rid the world of evil. But already, many allies are warning that they will balk at an attack on “rogue states,” such as Iraq.

This rift might grow larger if the international community concludes that Washington has succumbed to the temptation of vigilante-ism, with George W. Bush asserting that he – and he alone – will apply Wild West justice to "evil-doers" the world over.

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