Although the Bush Administration conceded on February 7 that the Taliban detainees at Guantanamo Bay deserve to be covered by the Geneva Conventions, the Administration refused to allow them, or any of the 186 detainees at that time (the number now stands at about 300), prisoner-of-war status. One might reasonably expect that the Geneva Conventions and the protocols of international law would offer a promising legal avenue for contesting the US government's detention and treatment of these prisoners, and indeed they provide some useful resources for this purpose. But the 1949 Geneva Convention accord on the treatment of prisoners of war, based on an outmoded notion of war and soaked in bias toward the nation-state, makes it difficult for POWs who do not belong to recognized states with conventional armies to lay claim to protection under international law.
The Administration claims that these prisoners do not merit POW status under the Geneva Conventions, which stipulate that POWs must belong to a "High Contracting Party" and have operated in the service of "regular armed forces" in a conventional war. But the United States, understood as the "Detaining Power" under the conventions, is required to treat these prisoners as POWs until a "competent tribunal" is set up to decide the question. At the same time, the paradoxical fact is that the Geneva Convention accord on POWs, which seeks to protect prisoners of war from hostile governments that may well be unwilling to recognize their rights to fair treatment, also functions as a civilizational discourse that favors prisoners who belong to established nation-states. So while it is important to insist that international law ought to be followed in this case, we also need a critique and expansion of this law. And the law must be changed not only in light of the new character of war but to insure that those engaged in military action on behalf of stateless organizations receive the same protections as those who fight for established states.
On January 22 Defense Secretary Donald Rumsfeld explained why these prisoners should not be called "prisoners of war," and why he prefers to call them "battlefield detainees" or "unlawful combatants." For the United States, these are not POWs, because this is no ordinary war; it is not primarily a battle between recognizable nation-states or, in the parlance of the Geneva Conventions, "High Contracting Parties." The term they have come up with, "battlefield detainees," designates a place not yet under the law or, indeed, outside the law in a more or less permanent way. It is unclear whether some of these prisoners will ever be tried, and Rumsfeld at the end of February indicated (and recently reaffirmed) that they might be held "indefinitely" without trial. In this context, the hunger strikes in which many prisoners have engaged might be understood as another version of a suicide tactic, practiced by those who stand little chance of achieving the status of legal subjects in an appropriate trial. If they are tried, it is not ruled out that they could be sentenced to death, without any rights of appeal, by a military tribunal. The Geneva Conventions rule out the possibility of a secret military tribunal for POWs and guarantee trials that follow the laws governing civilians or, minimally, the same kinds of courts to which US POWs are subject. But the United States has allowed no legal counsel for these prisoners and no guarantee of a trial that would follow the stipulated rules, and it clearly has no intention of doing so, even though it seems willing in some instances to allow repatriation to nations such as Britain.
The Geneva Conventions and the United States both engage in the questionable practice of distributing rights of protection differentially, depending on a prisoner's affiliation with a state-based military operation. Instead of asserting an entitlement to protection against degradation and violence and rights to a fair trial as a universal right, the Geneva accord on POWs applies a selective criterion to the question of who merits protection and who does not, and it clearly privileges those prisoners in wars between recognizable states. The Conventions accept conventional war, but have not been articulated well enough to have a clear application in the present circumstance.
To its credit, on the other hand, the Geneva accord on POWs is explicit that the term "POWs" includes those who belong to "regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." In other words, the detaining power, in this case the United States, may not recognize the authority to which these prisoners profess allegiance, but that should have no bearing on their status. Any doubts about that status are to be settled by a competent tribunal convened under the terms of the accord. Given that the Guantanamo prisoners' status is obviously open to debate, the Bush Administration's claim that there is "no doubt" about their standing appears to be a cynical manipulation of the Conventions. The United States purports to be acting consistently with the Geneva Conventions, but it clearly ignores their stipulations, allocating to Rumsfeld's Department of Defense the right to determine the status of the prisoners and refusing to yield to the authority of a competent tribunal.
Although the United States announced that it would recognize the Taliban, the representative government of Afghanistan at the time of war, as an entitled state under the Geneva Conventions, it nonetheless depleted the Conventions of their binding force by continuing to deny the Taliban "prisoner of war" status. Indeed, the United States says only that its actions are "consistent" with the Geneva Conventions in treating the prisoners humanely, but it ignores the definition of humane treatment that the accord supplies (access to legal counsel, fair trials, limited time in detention, etc.). Given this flagrant violation, it makes sense to call for the Geneva Conventions to have binding force. Unfortunately, however, the Conventions are only of limited help here, since they are pervasively biased toward the nation-state and unprepared to furnish dictates for the present and future forms that armed conflict might take. The Conventions aid and abet the United States by guaranteeing prisoners not affiliated with state-centered military actions fewer rights than those who are. Only those combatants who operate in conventional ways qualify as "regular armed forces" under Article Four of the accord on POWs: For instance, members of militias have to belong to a "Party" to the conflict, whether directly or indirectly, and to belong to a "Party" means, effectively, to belong to a nation-state or to have an established relationship to one (ironically, the United States assumed this connection of Al Qaeda to the Taliban when it began its war, identifying the one with the other when the United States targeted nations that "harbor" terrorists, but now backs off from that connection when it would entitle captured Al Qaeda members to prisoner-of-war status). Those militias must be organized by a clear chain of command with "a person" commanding his subordinates; they have to wear "a fixed distinctive sign recognizable at a distance"; they have to carry arms openly; they have to conduct their operations according to the "laws and customs of war."
Thus the Geneva Conventions not only presuppose a conventional sense of war (where the model appears to be based on wars prior to its drafting in 1949) and of what a "legal combatant" is, but they enforce that sense, operating as an instrument not only of the nation-state but of the geopolitical distribution of legitimate and illegitimate violence. Legitimate violence is waged by nation-states; groups of armed resisters who are directly representing no nation-state in particular, or several in tangential ways, are, de facto, illegal combatants. Only "High Parties" can legally go to war and deserve the human rights protections guaranteed by the Geneva Conventions. The notion of the legitimate warrior is in part drawn from World War I, it seems, when everyone could be "seen" on the battlefield. Of course, this requirement is untenable, since it implies that there are no undercover actions in legitimate war, no stealth bombers, no camouflage. And the fact that the Al Qaeda network has defined itself as a group whose chain of command (if it can even be called that) is systematically effaced from public detection would seem to be anathema to the Conventions' conception of war.
Hence, we can make sense of Speaker of the House Dennis Hastert's remarks to the press about the prisoners in Guantanamo: "These aren't military people. They don't belong to a country, they don't wear a uniform, they're not part of an army. It's a unique situation and we'll have to deal with it in a unique way." "Unique" thus becomes the word that suggests that the law has limited applicability here, that we are not in a situation in which rules regarding humane treatment can be extended universally, since there are exceptions to the universal, and we are dealing with the exception here. Moreover, we can see that the claim to humane treatment is not exactly universal in the Geneva Conventions--in fact, the word "universal" is never used. Where the term is implied, it seems that the discourse of universality is limited to those individuals understood to represent state-centered conflict taking place in already established and recognizable forms, where the norms of something called "civilization" apply. Article Three of the accord on POWs makes this clear, for instance, when it states that POWs will be protected from "the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people." Implicitly, the accord concedes that there are "uncivilized people"; it remains unclear who they are and whether, in the eyes of the "civilized," they are entitled to rights otherwise conceived as having universal applicability.
The accord assumes the perspective of the civilized, and it extends the discourse of civilization in letting us know what is and is not a civilized war. The very conceit of a civilized war betrays the hegemonic action of the accord itself, a document and a contract that seeks to define civilization in its modes of war and in its procedures of accountability over and against a barbaric other, thereby occluding its own barbarism or, rather, encoding its own in an elaborate proceduralism that it arbitrarily applies and suspends.
Yet given the extralegal solutions that the Bush government is now proposing--including permanent detention without trials for many--it nonetheless makes sense to return to that document, to see what might be wrought from what good resources it does provide. The Geneva Convention accord on POWs can be read in at least two ways, and it will be important to produce and insist upon one public reading rather than another. The Geneva Convention principles, written in August 1949, make clear that POWs do not have to be members of regular armies, considered as armies of a state, as long as they belong to a "Party"--understood as "High" and "Contracting"--to the conflict. So it is possible to read Al Qaeda's relation to Afghanistan as precisely such a relation to a party. Moreover, the Conventions warrant a competent court or tribunal to intervene and decide the question of the prisoners' standing as POWs; prior to such a determination, their POW status is supposed to be assumed. Further, the detaining power is strictly obligated to treat detainees humanely--as the accord defines that, including access to legal counsel--while their standing is being determined.
In the end, however, even more important than insisting on a reading of the Conventions that protects the Guantanamo Bay detainees is producing a document with international standing that radically extends the applicability of their protections and tries to make good on a promise of universal rights to humane treatment. It also seems crucial that we consider how to apply the Geneva Conventions to new forms of conflict, ones that do not conform to those conventions of war established in 1949. After all, this is a war that is no war. As a shorter-term operation, it is waged against a military network composed of people who are conceived as illegal combatants. But the war is not over; it appears that it will now be continued in such places as Indonesia, Iraq, North Korea, Iran, Pakistan and the Philippines. And military action continues in Afghanistan. As a war against terrorism on many fronts (and not necessarily on nation-states), it is already a war without end, and without a geographic boundary or a state-defined enemy in the sense that the Geneva Conventions imagine wars to have--that is, wars declared and concluded between established (not even emergent) nation-states.
Since we are already outside the parameters of conventional war, we are apparently outside the parameters of international legal jurisdiction as well. Guantanamo Bay makes this explicit: It is a land leased by the United States, but not "US soil," which would, constitutionally, give rights of legal appeal to the prisoners detained there. When Rumsfeld says that this is no regular situation, since the United States is fighting a terrorist organization, and not a country, he implies that the extraordinary character of terror justifies the suspension of law in the very act of responding to terror. The detention of violent soldiers is justified, since they are still and always fighting in his view and they represent no country--unstoppable vessels of uncivilized violence. They are outside the law, outside the framework of countries at war imagined by the law, and so outside the protocols governing civilized conflict.
Just as a distinction is drawn between legitimate violence and illegitimate violence according to whether the combatants are affiliated with states, various forms of political violence are now commonly called "terrorism," not because there are distinguishable valences of violence, but as a way of delegitimizing violence waged by, or in the name of, authorities deemed illegitimate by established states or, indeed, those that threaten the hegemony of the nation-state itself. As a result, we have the sweeping dismissal of the Palestinian intifada as "terrorism" by Ariel Sharon, whose use of state violence to destroy homes and lives is surely extreme. The use of the term "terrorism" thus works to delegitimize certain forms of violence committed by non-state-centered political entities at the same time that it sanctions a violent response by established states. Obviously, this has been a tactic for a long time, as colonial states have dealt with the Palestinians and with the Irish, and it was as well a case made against the African National Congress. But the new form that this kind of argument is taking, and the naturalized status it assumes, will only intensify the enormously damaging consequences of the struggle for Palestinian self-determination. Israel takes advantage of this formulation by justifying state violence against the Palestinians in the name of an infinitely expansive conception of self-defense. So "terrorism" becomes the name to describe the violence waged by the illegitimate, whereas "legal war" becomes the prerogative of those who can assume international recognition as legitimate states. In the current war, US soldiers would be covered by the Geneva Conventions and US POWs would be guaranteed POW status, but those they fight, deemed illegitimate, would have no legal recourse to those same protections. (Indeed, the very fact that Bush subjected this policy to review appeared to stem from a fear that US soldiers might also be summarily deprived of the same protections on foreign soil.)
Although the Geneva Conventions might be more openly interpreted if they were reconvened to consider these questions (and why shouldn't they be?), they currently serve to reinforce the distinction between legitimate state violence and illegitimate violence waged by the stateless. One surely needs to feel no sympathy with Al Qaeda to worry about the long-term international consequences of this distinction. In turn, the distinction between state-sanctioned violence and illegitimate violence or "unlawful combat" becomes the basis for the distinction between state violence and terrorism or, in the case of states whose legitimacy is in question, state terrorism (as the Russians have tried to impute to Chechnya). In this regard, it could be said that the stateless are terrorized by the distinction between state violence and "terrorism."
The "terrorists" are considered to be outside the law, to sanction treatment that is outside the law because of the character of their violence. The fact that these prisoners are seen as pure vessels of violence, as Rumsfeld claimed, suggests that they do not become violent for the same kinds of reasons that other politicized beings do, that their turn to violence can make no sense historically, or cannot make sense in the way that conventional wars make sense, and that their violence is somehow groundless and infinite, if not innate or constitutive. If this is "terrorism" rather than violence, it is action that has no political goal, or cannot be understood politically. It emerges, as they say, from fanatics, extremists who do not espouse a point of view and do not have a part in the human community. But even as Rumsfeld characterizes the prisoners in Guantanamo as individuals who will kill again if they are not detained, imagining them as capable of an infinite violence, the US war has also established its own relation to infinity, since it is unclear how a generalized "war on terrorism"--with all the vagueness that implies--can ever properly end. That the violence of the prisoners is associated with Islamic extremism or terrorism suggests that these prisoners are already cast outside the bounds of civilization, and that the dehumanization that Orientalism already performs is heightened now to an extreme, so that the uniqueness of this kind of war makes the humane treatment of prisoners, as stipulated by international convention, exempt from the presumptions and protections of universality and civilization alike.
The question of who will be treated humanely presupposes that we have first settled the question of who does and does not count as a human. And this is where the debate about Western civilization and Islam is not merely an academic debate, a misbegotten pursuit of Orientalism by the likes of Bernard Lewis and Samuel Huntington, although they do exemplify how notions of civilization produce the human differentially. To what extent does the nation-state operate as the basis for our notions of what is "human"? And does the Geneva Convention encode this expectation that humans, as we know and honor them under the law, belong primarily to nation-states? It is not just that some humans are treated as humans, and others are dehumanized; it is rather that dehumanization--treating some humans as outside the scope of the law--becomes one tactic by which a putatively distinct "Western" civilization seeks to define itself over and against a population understood as, by definition, illegitimate.
Judith Butler is currently a Rockefeller Fellow at the Center for Human Values at Princeton. She is the author of several books on feminist theory, continental philosophy and contemporary politics.…