A Treaty We Can Live with: The Overlooked Strategic Value of Protocol Ⅱ

摘要

The treatment of detainees is a critical component in the war on terrorism. By all accounts, this issue has had a significant negative impact on international perceptions of the United States. Despite domestic opposition and pleas from allies, the Bush Administration has consistently resisted recommendations to apply even the baseline protections of the Geneva Conventions to al Qaeda detainees. The recent Supreme Court decision in Hamdan provides the Bush Administration a perfect opportunity to change this approach. The decision affirmed the right of the United States to detain enemy combatants in the war on terror and upheld the ability, when properly constituted, to prosecute those detainees for violations of the law of war. It also, however, made avoiding the international legal mandate of humane treatment for these detainees legally impossible. The Detainee Treatment Act of 2005, the MCA of 2006, and DOD Directive 2310.01E are all important components in establishing detainee treatment standards. However, while these authorities collectively provide most of the treatment standards set forth in Protocol II, they do not have the same international standing. Further, they do not overcome the perception, domestically and internationally, that the United States is failing to comply with the laws of war. The Bush Administration should announce that it will immediately apply the humane treatment standards set forth in Protocol II to all detainees. Doing so would require few modifications to existing policy, but would contribute immensely to the credibility of that policy. This should be followed by an effort to obtain immediate action by the Senate to enable ratification of the treaty. With the Democrats assuming control of Congress and already stating they are going to revisit some of the aspects of the MCA, obtaining advice and consent seems particularly feasible. Ratification of Protocol II will contribute to the success of the U.S. National Security Strategy. The defeat of terrorism necessitates close cooperation among all democratic nations. The detainee policy for the past five years has impeded this cooperation. Many countries in Europe and around the world have an unfavorable impression of the United States' handling of detainees. The Bush Administration has been expending tremendous effort in trying to explain how its policies comply with the law of war. By adopting the recommendations of this article, the United States can bolster its policies using a standard most countries have accepted and all will understand. As stated in the National Security Strategy, "America must lead by deed as well as example."103 Ratifying Protocol II will allow the United States to once again reassert its rightful and expected place as a leader in international law.