British tabloids blasted the story around the world: The Americans
had removed Al-Qaeda and Taliban prisoners to a secret torture camp
in Cuba! Photographs showed prisoners gagged and shackled, and
crammed into cells exposed to the elements. Amnesty International
demanded immediate access to the scene of these abuses. Mary
Robinson, the UN Commissioner for Human Rights, chimed in, along with
other prominent human rights advocates and a supporting chorus of
left-wing politicians in Europe. Unwilling to be left behind, the
Inter-national Committee of the Red Cross (ICRC), self-declared
"guardian" of the Geneva Convention on the treatment of war
prisoners, weighed in with its own expressions of outrage.

The furor died down in less than a week as the facts became known.
The prisoners, some of whom had been involved in a violent prison
revolt in Afghanistan, had been restrained in transit but not within
their prison cells in Guantanamo. Officials from the ICRC who visited
the site soon confirmed that prisoners were receiving adequate food
and medical attention, and that their makeshift prison offered no
less protection from the elements than the hastily constructed
facilities set up for their American guards.

It was left only to wrangle about legal details. The ICRC, along with
Amnesty International and Human Rights Watch, insisted that the
prisoners deserved the full protections accorded prisoners of war
under the Geneva Conventions. After some initial verbal clutter, the
Bush Administration maintained that terrorists were not technically
prisoners of war, but that they would nevertheless be treated by the
standards set down in the Geneva Conventions whenever possible. This
did not satisfy the ICRC. "There are divergent views between the
United States and the ICRC", officials in Geneva reported, vowing to
"pursue dialogue" on the legal issues even as they acknowledged that
there was no humanitarian crisis at Guantanamo.

The whole episode could be chalked up to typical European carping at
American "unilateralism", enabled, if not created, by irresponsible
slash-and-burn journalism. But the fracas says something important
about the changing character of international law. This episode
should warn the wise that ambitious new versions of international law
are likely to become a continuing source of mischief in the world,
and much trouble to the United States.

Whence the Laws of War?

The immediate source of law in the Guantanamo dispute is the third
Geneva Convention of 1949, which concerns the treatment of war
prisoners. Three other conventions were launched at the same time (on
the treatment of wounded and sick combatants in the field; on the
treatment of wounded, sick and shipwrecked combatants captured in
naval war; and on the protection of civilians in occupied territory).
The provisions in these four treaties were for the most part
clarifications and elaborations of the Geneva Conventions of 1929,
which in turn sought to elaborate and clarify standards agreed at The
Hague Peace Conferences of 1906 and 1899. The underlying impulse for
all of this is usually traced to the Geneva Convention of 1864, the
first treaty to recognize a specially protected role for Red Cross
medical services in wartime. (The International Red Cross had been
established in Geneva only shortly beforehand and was instrumental in
convening the 1864 conference.)

The dispute over the Guantanamo prisoners, then, is a dispute about
treaty law--but treaty law with a history. It is worth our while to
briefly review that history, for only in its light can we see how
inventive the ICRC's current interpretation of the law really is.

That history indeed goes back further than the 19th-century
conferences that gave formal recognition to restraints in the conduct
of war. Yet restraint had not always been accepted practice. In
medieval Europe, the sacking of towns and fortresses was regarded as
a necessary reward for soldiers after the rigors of a siege, and a
useful warning to the next target to surrender short of a siege. As
late as the 16th century, Spanish theologians claimed to be applying
the principles of St. Thomas Aquinas in justifying massacre and rape
as an acceptable form of punishment for those who took the wrong side
in a just war.

But unrestrained war of this kind seemed safely in the past by the
mid-19th century. Wars had long since come to be the undertakings of
professional armies, funded and directed by well-organized states
that were generally eager to minimize injury to private property and
ongoing commerce. It was widely accepted that states should respect
certain limits and proprieties in war, especially in their treatment
of captive enemy soldiers and civilians, well before the treaty
conferences in Geneva and at The Hague. The prevailing conception of
war was so gentlemanly that both Hague Conventions acknowledged the
customary practice of releasing enemy officers on "parole"--that is,
their word as gentlemen not to escape or return to fighting, but be
neutralized by their capture.

Indeed, by the 19th century, neutrality itself had achieved a
considerable degree of moral prestige, as neutral powers were
conceived by most European statesmen and jurists as standing aloof
from the political intrigues and calculations of petty marginal
advantage in the foreign ministries of warring states. The neutral
power could thus be identified with the higher claims of humanity at
large. Geneva and The Hague were thus thought to be especially
appropriate sites for conferences on the laws of war precisely
because Switzerland and Holland were neutral states.

The same conferences that polished up humanitarian standards for
captives also sought to lay down broader limitations on the conduct
of war--for example, against the use of submarines to sink merchant
ships even of the enemy power. Restrictions were also negotiated on
the size of artillery shells and the types of rifle bullets
permissible in war. Admiral Alfred Thayer Mahan, one of the American
delegates to the 1899 Hague conference, cautioned (regarding a ban on
dropping bombs from aerial balloons) that improved weapons, by
"localizing at important points the destruction of life", might well
"diminish the [overall] evils of war and [so] support the
humanitarian considerations we have in view." But he was ignored by
Europeans eager to experiment with what we would now call arms
control.

Most of these experiments in mutual restraint were promptly abandoned
amid the pressures of the First World War. The Germans ignored
restrictions on submarine warfare in their determination to starve
Britain of aid and supplies. The Allies imposed their own naval
blockade to starve Germany and Austria of supplies--including food
for civilians. World War II was still worse. Disregarding interwar
agreements that sought to revive limits on submarine warfare, the
American and British navies adopted a policy of unrestricted
submarine warfare against Japanese merchant shipping. Disregarding
agreements on the protection of civilians, British and American
bombers devastated the cities of Germany and Japan from the air, with
little pretense of focusing on "military" as opposed to "civilian"
targets. Hundreds of thousands of civilians died, even before the
culmination of these efforts at Hiroshima and Nagasaki. Such ferocity
could be defended as lawful reprisal for enemy aggression or for
treaty violations by the enemy, releasing the Allies from their own
commitments. But the truth is that Western governments were not much
concerned about legal niceties in the midst of all-out war.

The hallowed idea of neutrality just barely survived World War II. In
a struggle that was seen so clearly as a battle of good against evil,
nobody on the winning side expressed admiration for states that had
remained neutral. For several years the Soviets objected to admitting
Ireland to the United Nations; members were required to be
"peace-loving" and the Irish refusal to join the war against Hitler
showed, said the Soviets, that Ireland was not reliably in favor of
peace. Traditionally neutral states that had been overrun without
serious resistance--Holland, Norway and Denmark--were chastened by
the experience and readily joined the Atlantic Alliance after the
war. Even Switzerland was condemned for trading with the Nazis rather
than admired for holding itself aloof.

And yet some laws of war did survive, notably those covering the
treatment of prisoners. Neither Stalin's Soviet Union nor the
Japanese warlords professed to be bound by the 1929 Geneva Convention
and neither expected any mercy from their enemies. But Germany
remained a signatory and did honor its obligations toward fellow
signatories--though not out of any sense of reverence for
international legality. American and British (including British
Commonwealth) prisoners were, with some exceptions, reasonably well
treated by the Germans, even as their non-"Anglo" prisoners--and all
prisoners of the Japanese--were horribly abused (or simply murdered).
The reason for the restraint in the case of the Anglo-American war
with Germany was a sense of reciprocal obligation and thus mutual
deterrence. General Alfred Jodl testified at Nuremberg that Hitler
had demanded the execution of captured Allied airmen in 1943 in
retaliation for the devastating incendiary bombing of German cities.
But Hitler's military staff evaded and finally buried this directive,
fearing that it would trigger retaliation in kind against German
prisoners in Allied hands.

Thanks to this history, it did not seem altogether hopeless to
restore the Geneva Conventions after World War II. Indeed, it seemed
only prudent--and so, by 1949, it was done. The 1949 conventions were
not honored by the North Koreans or the Chinese in the Korean War,
nor by the Hanoi government in the Vietnam conflict. But even in
these wars, communist authorities did not massacre American prisoners
en masse. If they held them as bargaining chips, rather than as
vessels of sacred humanity, communist governments still saw mutual
restraint as being in their interest, much as the Nazis had
recognized during World War II.

The same logic of reciprocity and restraint pertains today, but do
circumstances allow that logic to function? It is certainly in
America's interest to adhere to these conventions when others also do
so. But where does that leave us in a war with terrorist
organizations and states that nurture them? Can humanitarian laws of
war function with enemies who disdain the very idea of humanitarian
restraint?

Practical Matters

The official position of the U.S. government is that prisoners at
Guantanamo are not "prisoners of war" in the sense of the Geneva
Convention, and they are not therefore entitled to claim the
protection of every provision in the convention. The International
Committee of the Red Cross and leading human rights groups,
however--and, as of April 28, the British government, as well--insist
that they are prisoners of war or should at least have the
presumption of such status, with denials of such status to be
determined on the basis of individual trials. Since the U.S.
government insists that it will treat the prisoners humanely--and the
ICRC has confirmed that it is doing so--this dispute may seem a
pointless quibble.

But it is not pointless, and it is more than a quibble. The
designation of being a prisoner of war carries a certain sense of
respectability. A prisoner of war is not a criminal, because
soldiering is not inherently criminal. We may not want to say the
same about terrorist forces, and there is clear precedent for this
attitude. The Western Allies treated soldiers of the Wehrmacht as men
who were simply doing their duty, while SS troops were treated as
members of what was designated a "criminal organization"--and
thousands were sentenced to postwar imprisonment on that basis or
detained much longer than ordinary German POWs.

Clearly, then, apart from moral and symbolic issues, serious
practical matters are at stake in the current war. Among the most
important are the implications for the interrogation of prisoners.

As everyone recalls from old war movies, prisoners of war are
required only to give "name, rank and serial number"--or, as the 1949
Convention adds (as an alternate means of identification), "date of
birth." Human Rights Watch insists that this limitation does not
prevent prisoners from volunteering more information, nor prohibit
prison officials from seeking more. But the convention expressly
stipulates that prisoners of war may not be "threatened, insulted or
exposed to any unpleasant or disadvantageous treatment of any kind."
The convention goes into considerable detail in trying to exclude
unnecessarily "unpleasant or disadvantageous treatment." Prisoners of
war, for example, are to have access to "canteens" where they "may
procure foodstuffs, soap and tobacco and ordinary articles in daily
use." They must be allowed to retain or receive money to buy such
things, even if the money has to be provided by the detaining power
as an advance on regular pay. Prisoners must also be allowed their
own cooking facilities to make use of little extras they may acquire.

As it happens, no such facilities exist in Guantanamo, and this is
objectively helpful. It makes the job of interrogators easier if such
comforts are not provided as of right but can instead be used as
bargaining chips to induce cooperation.

Similarly, the convention envisions that prisoners will be housed
together and be allowed to participate as a group in recreational,
cultural and religious activities. Prisoners who want to lead prayer
services with fellow prisoners are guaranteed the right to do so. At
Guantanamo, prisoners have been isolated in individual cells and the
U.S. Army supplies its own Muslim chaplains for individual prayer
sessions.

The problem is that when a prisoner is being questioned, it is useful
for interrogators to suggest that others have already talked. It may
make a big difference (both for psychological and practical reasons)
for the prisoner to know whether this is so; there is a good reason
that social scientists often invoke the "prisoner's dilemma" as a
model for decision-making under conditions of uncertainty. As a
matter of security, too, it is much harder to plot an uprising or a
mass escape if you cannot communicate easily with fellow prisoners.
In the makeshift cells at Guantanamo, it has not been possible to
keep prisoners from communicating with each other by calling out from
their open-air enclosures. But more permanent facilities may make
fuller isolation feasible. It thus remains a serious issue whether
respect for the Geneva Convention should be understood as a legal
obstacle to such practices on the part of the prison administration.

Perhaps most importantly, the Geneva Convention requires that
prisoners be "released and repatriated without delay after the
cessation of active hostilities." It will not be easy to say when
"active hostilities" have ceased where the opposing "power" is a
non-state terrorist organization. Nor will it be a simple matter to
say when it may be safe to return members of an international
terrorist network to roam free again. The convention does allow for
individual prisoners to be tried and punished for war crimes they may
have committed prior to capture, such as direct participation in
terror attacks on civilians. But it is very hard to assemble
information about the past activities of individual prisoners
captured with a terrorist force. It will be especially hard if, as
the ICRC and human rights groups insist, prisoners are presumptively
"lawful combatants" until individually proven otherwise, so that each
may retreat to name, rank and serial number.

All such practical considerations are dismissed by the ICRC and most
human rights groups, however. They argue that if the United States
says it is making "war", then the prisoners it takes should be
considered, at least presumptively, prisoners of war until an
individual can be shown by a competent judicial tribunal to be a
terrorist. It should not matter, they say, whether Al-Qaeda or
Taliban forces adhere to all or even any of the requirements of the
Geneva Conventions so long as they are organized participants in what
the United States itself regards as a war. To pick and choose among
the protections we offer will "provide cover to other governments to
ignore human rights standards", as Amnesty International argues, and,
as Human Rights Watch warns, "put soldiers around the world at risk."

From Contract to Folly

The underlying premise of such arguments is that the "humanitarian
laws of war" are now part of general human rights law. In the
mid-1990s, the United Nations published the Geneva Conventions in the
same volume with the Covenant on Civil and Political Rights, the
Convention Against Torture, and some ninety other general human
rights treaties adopted since World War II. No one says that these
other protections can be suspended just because some signatories fail
to uphold them. The ICRC insists, therefore, that the requirements of
the Geneva Convention are "unilaterally binding."

This sounds sensible enough, but it makes the text and history of the
conventions unintelligible. Each of the four conventions is
proclaimed in the name of "the High Contracting Parties"--that is,
the states that subscribe--and the provisions are expressly limited
to "parties" on the understanding that the conventions are
"contracts." So if "one of the Powers" engaged in a war is not a
party to the convention, others in the war who are "parties" to the
convention "remain bound by it in their mutual relations"--but not
bound to it in relation to the non-party unless "the latter accepts
and applies the provisions thereof." This is the original idea of a
treaty. A treaty, as The Federalist (No. 64) explained in 1788, "is
only another name for a bargain." At the heart of the Geneva
Conventions is this bargain: fight according to these professional
rules and we will treat you with professional respect.

The main rules for defining combatant status go back to The Hague
Convention of 1899. They are not based on ancient ideas of rank and
courtesy. Rather, the rules were drawn up at conferences at which
military officers were not merely present as observers, but
constantly at the elbow of the diplomats and lawyers as full
participants for what they could provide by way of practical advice.
The rules thus rest pre-eminently on practical considerations. The
rules allow even "militias" or "other volunteer corps" to qualify for
POW status--if they belong to a "party to the conflict"--even if not
part of regular armies. But to qualify as a lawful combatant, an
individual fighter must be "commanded by a person responsible for his
subordinates." One obvious reason for this is that the opposing army,
if it is going to treat a captive with all the courtesies of a
prisoner of war, must be sure that the captive will behave like a
prisoner rather than an infiltrator ready to attack his guards the
moment they turn their backs. Surrender is reliable only when those
claiming to give up actually answer to the command of a superior who
has ordered them to lay down their arms.

So, too, a "lawful combatant" must "carry arms openly" and also carry
a "fixed distinctive sign recognizable at a distance" (that is, a
uniform or insignia). An opposing army cannot respect the claims of
non-combatants if it cannot discern who they are. The other criteria
are encompassed in the final requirement that all lawful combatants
must "fulfill the conditions" of "conducting their operations in
accordance with the laws and customs of war." Armies are not required
to respect the "laws and customs of war" against enemies seeking
special advantage by exempting themselves from those laws.

Historically, the most common categories denied the protections of
POW status (apart from pirates and robber bands) were spies and
saboteurs operating out of uniform. The U.S. Supreme Court hastily
approved the conviction of German saboteurs by secret military
commission in 1942. Death sentences were imposed, even though the
half-hearted efforts of these saboteurs, landed by submarine on Long
Island, did no damage in the United States. No one thought it strange
that the two Germans who cooperated with investigators were spared
execution as a reward for their cooperation. By the same token,
postwar American war crimes tribunals dismissed charges against
German officers who had executed Yugoslav partisans for sabotage
efforts. It was held that because the partisans did not have clearly
marked insignia, indicating their status as lawful combatants,
killing them was not a war crime. Military courts were not willing to
endorse the notion that saboteurs and secret partisans had the same
status as lawful combatants.

The underlying bargain here rests most of all on the assumption that
an organized army can be neutralized by its surrender. Valuable
information might be gained by closely questioning surrendered
troops, but armies have been willing to forego the right to pressure
POWs into talking in order to assure respectful treatment when their
own troops are taken prisoner. The calculus always looked different
for bands of spies, saboteurs or secret agents operating behind enemy
lines, where pressing for information seemed absolutely crucial
because secrecy, more than massed formation, was the essential
precondition for the success of such enemy activity.

If the protections of the Geneva Convention are regarded as
reciprocal concessions by the "contracting parties"--the states
sponsoring the forces in conflict--then systematic violations by one
side release the other side from its obligations. The opposing side
can rightly claim to be strengthening international standards by
denying legitimacy to forces that systematically violate the laws of
war. If the convention is seen as a statement of universal human
rights standards, however, then every individual prisoner has some
claim to these protections unless it can be shown that he was
personally operating in violation of the rules.

The idea of universal human rights norms was certainly known to the
diplomats and generals who gathered in Geneva in 1949. The year
before, the United Nations General Assembly had, with much fanfare,
proclaimed a "Universal Declaration of Human Rights" premised on the
idea that the world recognized basic rights for all human beings.
Most of the governments negotiating the 1949 Geneva Conventions no
doubt regarded universal human rights as a fine idea, and wished well
to the machinery established in the UN Charter to "save succeeding
generations from the scourge of war." But they did not regard these
new projects as sufficient reason to sacrifice the more tangible
benefits of the traditional rules of war. To this day, UN human
rights norms have no means of enforcement. But the laws of war always
had some means of enforcement through the natural and logical
operation of reciprocity.

If the obligations are entirely binding, regardless of what the other
side does, the whole scheme looks quite different. A reprisal or
response then becomes as bad as the initial violation that provoked
it. By that sort of reasoning, it would always be wrong to use
terrible weapons or even threaten their use. So much, then, for
deterrence. It is a view that makes sense, if at all, only to those
who see themselves as standing entirely above or apart from the
conflict, or as answering to some authority positioned above the
actual forces in conflict. In other words, it demands the return of
the old idea of neutrality.

That is, of course, precisely where the ICRC and human rights groups
position themselves. As an official ICRC publication puts it, "the
basic principles underlying [international humanitarian]
law--humanity, impartiality and neutrality--are as valid as ever and
certainly still of the utmost relevance." That brings us to the
deepest issues in the war on terrorism.

The Lightness of Neutrals

Contemporary human rights groups demand a neutral forum for
adjudicating abuses, an international criminal court where the
decision to press charges will be left entirely to an independent
international prosecutor. Actually, it will not be left entirely to
the prosecutor, for new procedural rules allow "victims" to appeal
the decision of the prosecutor not to seek an indictment. This means
that advocacy groups like the ICRC, mobilizing on behalf of victims,
will have legal as well as political forums to press their views. As
it happens, violations of the laws of war, including mistreatment of
prisoners, are very much in the jurisdiction of the new court, so
disputes like the one over the Guantanamo detainees may one day be
pursued by a prosecutor at The Hague. The court would also have
jurisdiction over crimes of "aggression" and broadly defined "war
crimes", so American decisions to strike at terrorist bases or the
countries harboring them could also trigger indictments.

Nobody imagined such a thing in the late 1940s when the current
Geneva Conventions were negotiated. Certainly, nobody imagined that
the ICRC would play a prominent role in arraigning offenders against
the laws of war. The ICRC had never done that sort of thing before,
and its wartime record did not suggest that it had either the
inclination or the capacity to do so. During the war, the ICRC
performed with reasonable efficiency in its traditional role,
discreetly conveying inspectors' reports from prison camps to the
opposing European powers. To win the trust of both sides, it reported
abuses of prisoners to home states, but it did not trumpet its
findings to the world. And it said precisely nothing about the Nazi
extermination camps, though it had considerable information about
them. Much has been made in recent years about the failure of the
Vatican to protest the Nazi Holocaust. But the ICRC's conduct was no
better and in some ways worse. Whatever may be said about Pope Pius
XII, at least he did not voice public praise for the SS. From its
headquarters in Geneva--a much safer place than Rome--the
International Red Cross published commendations of the German Red
Cross, even when the German chapter was directed by an SS doctor who
conducted ghoulish experiments on concentration camp victims.

No doubt, the ICRC had its reasons. It did not want to compromise its
role as a discreet go-between in the monitoring of prisoner-of-war
camps. The Swiss government, with which the ICRC had always been
closely associated, was itself eager to maintain good relations with
Germany, and was fearful of being "swamped" by a "flood" of Jewish
refugees. But whatever the reasons, the ICRC did not emerge from the
war as an inspiring example of humanitarian achievement. The Geneva
Conventions acknowledge in passing the ICRC's role as a monitor, but
they do not make cooperation with it mandatory and they certainly do
not establish the ICRC as the definitive arbiter of compliance with
the conventions.

Partly because the ICRC remained cautious about its own role until
relatively recently, a new set of conflict monitors arose in the
1970s and 1980s and quickly achieved much more prominence. Amnesty
International, Human Rights Watch, and Médecins sans Frontières were
much louder and more insistent in their denunciations of abuses
because they were willing to provoke the hostility of governments.
The ICRC has tried to reclaim leadership with public denunciations of
its own in recent years, as in its very public and premature
condemnation of American practices at Guantanamo.

But the prestige of Amnesty International and Human Rights Watch owes
much to the period in which they arose. During the late 1960s and
early 1970s, much Western opinion inclined to the view that the
United States was acting the role of a bully in Southeast Asia.
During the 1980s, much Western opinion inclined to the same view
regarding American involvement in the nasty guerrilla wars of Central
America. In the 1990s, the collapse of communism in Europe seemed to
leave much scope for reform and improvement, but no enemy deeply
threatened the United States or the West as a whole. In such a world
it was easy for human rights groups to maintain a lofty detachment
and retain their prestige as neutral moral arbiters.

For most Americans, September 11 changed all that. President Bush
speaks of terrorist networks and the regimes that sponsor or harbor
them as "evil." Countries that are not "with us" are to be regarded
as "against us." There is not much patience for neutrality in these
formulations. But that is almost beside the point. In truth, those
who planned the attacks on the World Trade Center and those who
nurtured them have no interest in "humanitarian law." Islamist
radicals do not think of war as a conflict between states from which
ordinary humanity should, as much as possible, be spared. They think
of war as an all-out contest between peoples, so that American
civilians (or, in the counterpart struggle in the Middle East,
Israeli civilians) are no less legitimate targets than uniformed
soldiers. Neither age nor sex nor disability makes any difference.
The aim is simply to punish a whole society for its sins. The
preconditions for reciprocal restraint are wholly absent.

The United States must not sink to the level of its adversaries, of course. Regardless of whether our restraint is reciprocated, the United States will need to observe some restraints for the sake of its own self-respect. Nobody, for example, suggests that the prisoners at Guantanamo should simply be executed without trial. But in a war against barbarism, it is hard to operate at all times within the gentlemanly code of the Victorian peace conferences that codified the modern law of war. In World War II, when the United States conceived itself at war with total barbarism, American bombers reigned merciless destruction on the cities of Germany and Japan. Michael Walzer argued decades later that this tactic was morally indefensible, and a serious case can be made for his claim--though a strong case can also be made for the answering claim that, in the final analysis, American bombing (including the use of atomic bombs on Japan) hastened the enemy's surrender and so saved lives overall. There is room for leg itimate debate about the restraints that should be observed even in a war with a very dangerous and unrestrained enemy. But imagine how Americans would have reacted during World War II if "neutral" advocates of humanitarian restraint had set themselves up as official arbiters of American war policy. In fact, during the Battle of Britain, the ICRC did offer to monitor civilian damage inflicted by British and German bombers. Churchill rejected any such neutral monitoring role:

It would simply result in a Committee under German influence or fear, reporting at the very best that it was six of one and half-adozen of the other. It is even very likely they would report that we had committed the major breaches. Anyhow, we do not want these people thrusting themselves in, as even if Germany offered to stop the bombing now, we should not consent to it. Bombing of military objectives, increasingly widely interpreted, seems at present our main road home.

Today's ICRC would deny that it is neutral in quite the way it was during the war against Nazi Germany. The ICRC and other advocacy groups were certainly quick to denounce the bombing of the World Trade Center last fall. But they are also eager to maintain credibility with Islamic opinion and with the larger trend of leftist opinion that instinctively sides with "oppressed people" and assumes Western wrongdoing in every conflict with non-Western peoples. So, for example, both Amnesty International and Human Rights Watch insist that "international law" requires that all Palestinians be assured the right to return to the places where their grandparents or great-grandparents may have lived in what is now Israel--a demand that even governments in Europe, which are very sympathetic to Palestinian claims, do not make. The ICRC has for decades allowed Islamic medical services to affiliate as "Red Crescent" rather than "Red Cross" services but refuses to acknowledge Israel's "Red Star of David" service because it lac ks an authorized insignia. Meanwhile, during the recent fighting on the West Bank, the ICRC repeatedly condemned Israel for interfering with Palestinian Red Crescent ambulances--before finally warning the Palestinians not to use these vehicles to sneak weapons and fighters past Israeli checkpoints as they have continually done. Indeed, the ICRC is so receptive to Islamist opinion that last fall a staff officer in Geneva circulated within the organization a report that the attack on the World Trade Center had probably been organized by Israeli intelligence because Jews working at the WTC had stayed home from work on that day.

But the political inclination of individuals in these organizations is not the point. In a war on shadowy terror networks, human rights advocates simply cannot provide even-handed monitoring on both sides. One of the attractions of terror as a strategic weapon is that actual attacks involve very small groups whose support structure can be disguised: states that sponsor or cooperate with these networks can deny their involvement. Human rights groups do not have intelligence services that allow them to shed light on these connections. But they can publicize what they regard as American abuses, because the United States is much more open about most of its operations. Similarly, advocacy groups can hope to affect American opinion, while their influence on dictatorial states like Iraq is effectively nil.

What is true for the monitoring activides of such groups is even more true for the International Criminal Court. Having received strong support from European governments, the 1998 treaty for the Court has now received sufficient ratificadons to take effect. It will start operations in July. The Court will not be able to apprehend any terrorist or anyone else on its own, and terrorists will obviously find it much easier to hide than travelling American (or Israeli) officials. Moreover, the moral onus of an indictment will surely have more political weight--to say the least--against democratic states. After all, would Saddam Hussein be more dismayed by an ICC indictment than by a Security Council condemnation? Would Al-Qaeda leaders care in the least?

Another problem is that the Court can only deal with those proven guilty of precise crimes. What if a leader of a terrorist operation is acquitted of the precise charges before the court because concrete evidence is insufficient for legal standards of proof? Will the terrorist then be released? Will his comrades and followers also be released on the same ground? It will not be easy to disarm terror networks if the detention of their operatives can only be continued when a judge in The Hague finds them guilty of precise crimes. But, like it or not, the ICC is now a fact, and it is likely to reinforce trends in European opinion that complicate American policy. Among other things, the existence of the ICC will strengthen the notion that there really is a higher law of humanity, binding on everyone, and that supposedly unbiased, neutral judges have the moral authority to enforce this law.

Meanwhile, the active role of advocacy groups is also a fact. In western Europe in particular, criticism of American policy from Amnesty International and the ICRC immediately won an attentive hearing. The United States must expect to be criticized. It has reason to cooperate with the ICRC, as it has in Guantanamo, to dispel slanders against actual American policy.

But the United States also needs to remind Europeans that wars cannot always be fought by gentlemanly rules-- not when the enemy disdains all civilized restraint. Europeans may need reminding on this point because, the British excepted, most of them did not do much fighting in the last great war against barbarism--or did their fighting on the side of barbarism--and now regard actual war as something done only by other, less ennobled people. Contemporary Europe has reverted in many ways to the moral complacency characteristic of neutral Holland before each of the world wars.

A PART FROM Britain and Turkey, European states are unlikely to be serious military allies for the United States. But to retain a place in the community of civilized states, European nations still need to remember those very important security obligations that they still can satisfy. Most of those directly involved in the September 11 attacks spent much time planning, consulting and training for their missions in European cities. And European governments remain reluctant to undertake arrests and investigations on the scale required to stop future terrorists from refitting and regrouping in Europe. Their devotion to unilateral and decontextualized standards of human rights has made Europe a haven for those who care least of all for such rights.

Yes, constitutional states must respect certain limits. But as Justice Robert Jackson famously put it, a "constitutional bill of rights" cannot be interpreted as "a suicide pact." He wrote that only a few years after his return from service as chief U.S. prosecutor at the Nuremberg war crimes trials, which perhaps helped to clarify his perspective on what a constitutional state cannot do and what it must do. Yes, the United States owes "a decent respect to the opinions of mankind", as the American Declaration of Independence puts it. But the U.S. government remains responsible to its own people when deciding how to defend them. That is also in the Declaration of Independence.

We should do everything we can to encourage European cooperation in the struggle against terrorism. But we cannot delegate our own decisions about national defense to prosecutors in The Hague or moral monitors in Geneva any more than we would give final word on these matters to the spiritual admonitions of the Pope in Rome. The dispute about our detention policies in Guantanamo is a harbinger of serious emerging differences with our European friends. It is important to clarify the moral and legal grounds of the American position in that dispute. It is unlikely to be the last time in this war when we will have to assert our right to an independent policy.

Jeremy Rabkin teaches international law and American constitutional history in the government department at Cornell University.