What law applies to conflict in Iraq today?
I've been thinking lately about the the law of armed conflict and its application to the war in Iraq. I was prompted by the renewed attention given to a memo written by former boss, and future Attorney General, Judge Alberto Gonzales, which posited that the new paradigm of the Global War on Terrorism rendered "quaint" some of the provisions of the Geneva Convention. Judge Gonzales took a lot of heat in the press from that statement. But is that analysis correct?
As a policy matter, the US has taken the position that the Geneva Conventions do apply to the situation in Iraq. I will not argue with that position as it applied previously; my question is, does it still apply? Saddam's government has been removed and a new government is in place, with the blessings of the United Nations. International armed conflict pre-supposes the existence of a battle between forces of two different states. I don't think anyone would argue that the Iraqi government and the US government are in a state of international armed conflict.
So that means that the law of international armed conflict no longer applies, yes? I found another author who came to the same conclusion regarding the Afghanistan campaign:
"So, what law applies to GWOT in the absence of an opponent State? Without State-on-State conflict, not the law of international armed conflict. Nor does the law of non-international armed conflict found in [the Geneva Conventions] neatly fit. "
I should state that I am not quarrelling with the policy choice to apply the Geneva Conventions and other laws of armed conflict. Rather, I'm questioning their strict legal applicability.
That's why I join Judge Gonzales's analysis that the Geneva Conventions are "quaint." Let me also add "horribly outdated" and "in need of a full overhaul." I say these words not because of my lack of concern for human rights, but because of my strong belief in them. Nations should not be left to determine on policy grounds whether or not to apply procedures that protect basic human rights. But its clear -- to me at least -- that the rules need a good scrubbing. The underlying assumptions about combatant states and the nature of conflicts have changed so dramatically that international law no longer matches the facts on the ground. The nations of the world have dramatically revised their telecommunications and other laws in the face of the paradigm-shifting internet; doesn't it make sense to revise the international law of armed conflict and the Geneva Conventions as well?
***Disclaimer: Although I worked for Judge Gonzales, I took no part in the production of the memos regarding the applicability of the the laws to Iraq, nor have I ever discussed this matter with Judge Gonzales or anyone else in White House Counsel's Office or any other part of the Executive Branch.