Saheli*: Musings and Observations
Tuesday, October 25, 2005
 
Why I'm Glad I Agitated for A History of Warfare Class in High School

History is important. Because we don't want to repeat it, because we rely on it for evidence for our economic and policy goals, because not dealing with it screws up our collective memory and psychological health, because it's who we are. . .blah blah blah. I believe all these things and have always been passionate about history--it was far and away my best subject in school. But there is one place where it matters most precisely and most mechanically, and that is the law. Law is very often based on precedent, and the fair implementation of precedent requires good archives, good records, and a good understanding of the past. Especially when we're talking about laws that aren't applied in tidy courtrooms but on battlegrounds.

Intel-Dump has been considering the scandal over the burning of Taliban corpses. Time article here. To sum up, two Taliban soldiers, probably Pakistani in origin, were killed on a rocky outcrop by Americans who were fighting with more Taliban in the village below. The bodies decayed in the heat. The Americans were unwilling to give up the outcrop, and asked the villagers to come and retrieve the bodies for burial. When the villagers refused, the soldiers burned the bodies. Cremation, of course, is extremely un-Islamic.

First John Holdaway pointed out that "The most interesting fact is that CENTCOM and the Pentagon have become the biggest cheerleaders against the soldiers, stoking the issue with language in press releases usually reserved for the actions of Iraqi insurgents and terrorists." He then played defense counsel, asserting that the CENTCOM press releases constitute "Unlawful Command Influence," and building a case for why, under the Geneva Conventions, the cremations were not problematic.

Then David Glazier pointed out that the President had already declared the letter of the Geneva Conventions inapplicable to the conflict in Afghanistan, so that was a defense which Holdaway missed out on. "But surely no competent attorney would allow his client to be convicted for violating the “spirit” of the law! ," he wrote. (And here is an example of recent history that is hard to keep track of, and therefore hard to have a good debate about. Did the White House really suspend the GC for all the combatants in all the battles in Afghanistan? I know the argument was that Al Qaeda fighters were not allied with any nation, but the Talibani fighters--at least in the beginning, until we installed Karzai--were, in fact, fighting on behalf of the Taliban government of Afghanistan, one which we recognized enough to deliver ultimatums too.) Glazier's real point, however, is that prosecutors don't need the Geneva Conventions in this case:

The real legal basis for prosecution here should not be the Geneva Conventions at all. Although it’s commonplace today to view the law of war as largely synonymous with the Geneva Conventions, and war crimes as beginning with Nuremburg, there is in fact a much larger body of customary law that remains fully applicable regardless of whether specific treaty provisions apply or not. As the government itself noted in defending the 1942 Nazi saboteur military commission before the Supreme Court:
the law of war, like civil law, has a great lex non scripta, its own common law. This ‘common law of war’…is a centuries-old body of largely unwritten rules and principles of international law which governs the behavior of both soldiers and civilians during time of war…The law of war has always been applied in this country.
The United States has tried a number of individuals for such offenses as failure to provide an honorable burial to enemy dead under this common law. . . The many American veterans who expressed dismay over these events recognize, even if not stating such in legal terms, that the U.S. military has long prided itself in compliance with the customary law of war. . . .So whether the conduct in question violates a Geneva Convention provision, or even whether the Geneva Conventions can lawfully be used as the basis of prosecuting our soldiers in Afghanistan misses the point. Violations of the customary law of war are chargeable under Article 134 of the UCMJ and the conduct at issue here is clearly triable by a general court-martial. (emphases mine.)
It seems to me that a real understanding of this lex non scripta (law not written) depends greatly on maintaining a good and reliable history of war, and constantly reminding people of that history. Tradition forgotten is tradition ignored. Without an understanding of the history of warfare, millions of American citizens, myself included, could easily be fooled into thinking that the debate about how we conduct ourselves in war is merely measured against what can and cannot be found in the Geneva Conventions, and if they do or do not apply. In fact, it seems, this lex non scripta has always applied. Ignorance is no excuse for breaking the law.

Postscript: Maybe it's because culturally, I find cremation to be the most respectful way to deal with decaying bodies, but I think it's kind of sad that it's in dealing with the dead that the Pentagon has decided to kick off a fuss. I'd much rather they improve our dealings with the living.
 


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Saheli Datta started this when she was a journalism student at Columbia in New York. Now she lives in the Bay Area. *Old people call me R. New people, call me Saheli. Thanks! My homepage. Specifically, my links. Email me: Saheli [AT] Gmail [dot] Com

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