Steven Ratner has written a “Think Again” piece on the Geneva Conventions in the new issue of Foreign Policy. (This explains why FP rejected my proposal for a Think Again piece on the same topic about three months ago.)

Ratner’s list of assumptions that should be rethought include:

“The Geneva Conventions are Obsolete”
“The Geneva Conventions Don’t Apply to Al-Qaeda”
“The Geneva Conventions Turn Soldiers Into War Criminals”
“The Geneva Conventions Prevent the Interrogations of Terrorists”
“The Geneva Conventions Ban Asassinations”
“The Geneva Conventions Require Closing Guantanamo”
“No Nation Flouts the Geneva Conventions More than the US”

A couple of other questionable assumptions mentioned in my original proposal might be added to Ratner’s list:

1) “The Geneva Conventions reflect international consensus on how to weigh humanitarian concerns against national security interests.” Not really. International consensus is now far more progressive than the original treaties. Part of why the Bush Administration gets away with so much is that a huge gap exists between current norms and the outdated letter of the law.

2) “The Geneva Conventions represent timeless principles.” No. Treaties are historical constructs that can be and are often amended as needed. Serious gaps in the law are widely acknowledged: the lack of accountability for private security forces and non-state belligerents, the ambiguity about detainee status determinations, among others. My view: these should be addressed through the negotiation of a new Additional Protocol.

Ratner also reifies some rather unsubstantiated assumptions himself. Let me focus on one: the argument that the US should comply with Geneva because if we don’t we undermine the conventions themselves:

“It is enormously important that the US reaffirms its commitment to the conventions, for the sake of the country’s reputation and that of the conventions… in losing sight of the crucial protections of the conventions, the US invites a world of war in which laws disappear.”

I’ve heard this a few times before, but I’m not sure I buy it. The argument is that US noncompliance with Geneva will affect the rest of the international community’s shared understanding of the rules and norms.

But isn’t it possible that US exceptionalism stands an equal chance of galvanizing pro-Geneva sentiment instead? Certainly this was the case with the International Criminal Court. The US opposes the Rome Treaty and has used several mechanisms including domestic legislation and bilateral treaties to make attempt to undermine the court. Yet in some ways this has only seemed to strengthen the rest of the world’s commitment to the ICC, and it’s the legitimacy of the US in matters of humanitarian affairs that has been undermined. Similarly, 80+ countries are moving ahead with a ban on cluster munitions, shrugging their shoulders at the US which isn’t interested.

I think that arguments that US behavior risks undermining regime norms, which are principled rules shared by the entire international community, reflects a certain arrogance. We never assumed that Milosevic’s use of concentration camps “undermined the POW rules,” only that it represented a violation of those rules to be condemned and punished. In fact, the international response reaffirmed the rules, just as international condemnation of US practice is now doing.

Of course you might argue that the US has disproportionate influence on regime norms because of its soft power. But I would suppose it’s US soft power that is being undermined here, not international norms.