View Full Version : The Red Cross Loses All Credibility

18 Jun 04,, 03:10
Reading the fine print
By Lee A. Casey and David B. Rivkin Jr.
Published June 17, 2004

Some of the most determined opposition to America's war on terror has come from a very unlikely source, the International Committee of the Red Cross (ICRC). The ICRC has launched public attacks on key aspects of U.S. policy, including the refusal to grant captured al Qaeda and Taliban members prisoner of war status, or to process them as ordinary criminal defendants, and has accused Americans of "systematic" violations of international law in Iraq.

In the wake of the Abu Ghraib abuses, Bush administration critics have demanded to know why American officials did not act on the ICRC's complaints. The answer to that question may well be that, whatever its role in the past, the ICRC was not taken seriously enough because it no longer merits its reputation for neutrality. In fact, ICRC reports cannot be taken at face value for three important reasons.

First, the ICRC is highly selective in its public accusations of international law violations, with democracies getting the short end of the stick. An excellent example is the ICRC's 2001 report on Iraq -- the last year of Saddam Hussein's rule before preparations for the 2003 war that toppled him. Anyone reading this report could not tell whether the ICRC believed Saddam's government was violating international humanitarian law or not. Its principal criticisms were reserved for the U.N. sanctions, noting deep concern "about the adverse consequences of the embargo" on Iraq and that the Anglo-American "no-fly" zones. The report also said that along with "persistent reports of possible military action against Iraq were yet another source of psychological stress for the population." Similar reports were just as uncritical of Syria and Iran.

These mild assessments are in notable contrast with the 2001 ICRC study on Israel, the Middle East's only democracy. The ICRC repeatedly referenced human-rights "violations" by the Israeli government and noted that it "regularly drew the attention of the Israeli authorities to their obligation to respect the rights of individuals and populations protected by IHL." This is, presumably, because, in the ICRC's view, the Israelis very much needed such reminders. Obviously, the ICRC felt free to attack Israel openly, while maintaining a diplomatic silence regarding its neighbors, because Israel would not retaliate against ICRC personnel. This may be common sense, but it is not "neutrality."

Second, the ICRC has a policy agenda -- to promote additional human-rights protections for insurgent or guerrilla forces. This bias is most evident in the organization's support for the 1977 Protocol I Additional to the Geneva Conventions. This document would give important advantages to irregular fighters, those who do not wear uniforms or fight as part of an organized military force that itself observes the laws of war and was flatly rejected by former President Reagan on that account. For example, Protocol I requires such "unlawful" combatants to distinguish themselves from civilians, by wearing a uniform or insignia, only when preparing to attack or attacking. Regular armed forces are expected to wear their uniforms consistently, effectively giving the guerrillas the initiative. As a practical matter, when they are not attacking, irregular fighters would have to be treated as civilians. In this, Protocol I establishes a "law enforcement" model for counter-insurgency efforts that is ill-suited for protecting genuine civilians from terrorist attack, and which the ICRC has attempted to impose on the United States in the context of the war on terror.

In fact, in criticizing American actions in Iraq and elsewhere, the ICRC has behaved as if the United States is bound by Protocol I, when it plainly is not. That treaty is relevant to U.S. actions only insofar as its provisions may restate otherwise applicable customary international law norms. Some of them do, but Protocol I's rules respecting unlawful combatants do not enjoy that status. Therefore, when the United States fails to provide unlawful combatants the special rights and privileges prescribed by Protocol I, it is not violating international law.

Third, the ICRC's concern for irregular fighters has blinded it to half of the humanitarian equation presented by the war on terror. In many places, governments do present the greatest danger to human rights.

For Americans, however, the greatest danger is international terror organizations that reject any notion of humanitarian law. In interpreting the requirements of international law, and especially the Geneva Conventions and other humanitarian documents, the undoubted right of American civilians to be protected from attack must count for something. To the extent such considerations do not figure in the ICRC's analysis, American officials can hardly be blamed for being skeptical of its claims.

Lee A. Casey and David B. Rivkin Jr. are partners in the Washington office of Baker & Hostetler LLP.