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Addendum for the War on Terror-Somewhere in Switzerland, Dilawar Remembered, and Why the Martens Clause Matters

This essay looks at Obama administration policies in Afghanistan in 2011, emphasizing where things began. Its focus is the murder of an Afghan taxi driver at Bagram Air Base by US soldiers in December of 2002. When this brutal mistreatment was reported, a junior enlisted soldier who asked whether his unit was acting in accordance with the Geneva Conventions. The noncommissioned officer glibly responded that “Geneva was somewhere in Switzerland.” Regardless of a proper characterization of US intervention in Afghanistan under international law, and whether any of the four Geneva Conventions of 1949 fully applied to the conflict at that time, physical abuse of detainees hors de combat is a war crime in violation of long settled principles of the law of armed conflict (LOAC), as well as domestic US law under the umbrella of the Constitution’s Supremacy Clause. First appearing in a resolution at the Hague Convention conference of 1899, and the later 1907 convention to which the United States is a party, the Martens Clause requires that in situations arising in war and occupations not covered by existing conventions, “the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of the public conscience.” Early US Army commanders in Afghanistan placed little emphasis on enforcing international law applicable to detainees held at the Bagram Control Point (BCP). Judge advocate staff officers for the command were likely unaware of all aspects of the handling and interrogation techniques applied by BCP personnel. Still, they profoundly misunderstood basic provisions of international law that should have guided US actions and failed to implement proper LOAC training regimes and legal oversight of operations.

Dilawar, Martens Clause, Bagram Control Point, Geneva Conventions, war crimes, Law of Armed Conflict (LOAC), judge advocates

Citation: Social Justice Vol. 37, Nos. 2-3 (2010-11): 99-122.