Combining Two: Brazen Disregard and the Martens Clause

On page 135, Byers writes,

Previous administrations at least paid lip-service to the existence of normative constraints by concealing and denying their covert operations. The Bush Administration… lets the mask slip, to the discredit of the nation and… at the peril of the soldiers whom so many of the rules are designed to protect.

Open violation by the world’s unipolar power (Layne, 2006) of the customary norms, rules of war and IHL that structure the international system precipitates a general downward trend in respecting the individual and potential increase of anarchy in battle. It is realized that a different Administration may bring back the importance of the Geneva Conventions, but undoing the damage may take some time.

Historically, a hegemon supports a regime as it sees the big picture strategy, which is in its best interest, and is willing to take the ‘negatives’ to maintain that regime (Kindleberger 1951, and Krasner, 1976). It is commonly believed that protecting human rights at the domestic and international level is important and in accordance with American values. This is demonstrated by the aid distributed by the US government to countries to facilitate thgovernment reforms to enhance democracy. The American nation was founded on the principles of civil liberties and restricting state invasive interference in the lives of people. However, Bush indicates that national security is more important than respecting the foundations of the nation he is currently leading. Despite historical evidence, which indicates Americans are more focused on domestic than foreign affairs, and want to safe guard their rights over national security issues (Jordan et al, 1999), Bush seems to disregard the norms of the US. Even if Bush and his Administration openly disregard the Geneva Conventions and IHL, he should at least abide by the Martens Clause which states if the rules of war can not be agreed upon, the state should follow its own national laws as per below:

in cases not included in the Regulations adopted by them, the inhabitants and the 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 the dictates of the public. [emphasis added by me] [Hague Conventions of 1899 and 1907].

The US government of the time ratified the treaty. In cases of disagree, this Clause permits a return to national laws and security, which is interesting as the US Constitution in the Judicial section, note not Executive, it states:

Article 3 - The Judicial Branch: Section 3 - Treason
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

This indicates that if a person commits acts of treason (attacking or going to war on the US government) then the Judicial Branch of the government has the right and authority to deal with that person. I do not understand how Bush thinks he has the authority to bypass the founding fathers of this nation, which as a result damages the prospects that American soldiers or civilians caught in a conflict will be treated with the norms of IHL.

As a result of this open disregard of IHL and the basic principles of the US norms, Bush is indicating the soldiers are no longer valuable once they are captured or detained by ‘enemy combatants.’ I highly doubt the American people would agree that their individual rights and the protection of their armed forces are secondary issues in the realm of global norms. If Bush and his Administration were truly concerned about ‘national security’ in this GWOT, then he would allot greater funding to the surveillance of ports and other infrastructure of the state. However, Bush is currently fear-mongering by seeking an ‘easy’ and unethical way through his declared GWOT. In his belief of American preponderant position in the political, economic, and military spheres of the globe he forgets that for every action there is a reaction. Terrorists and other actors may increasingly have justification for ignoring or leaving the IHL regime because the US has openly left.

Apparently I have a very negative view of the prospects of IHL if the hegemon of the system openly violates and indicates it does not support the regime, indicating that the regime will begin to crack and crumble.