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60th Anniversary of the Geneva Conventions: Remarks by White House Counsel Gregory B. Craig
August 12, 2009

Remarks of Gregory B. Craig, White House Counsel

Sixtieth Anniversary of the Signing of the Geneva Conventions

The Newseum, Washington DC

August 12, 2009

I am delighted to be with you this evening to celebrate the Sixtieth Anniversary of the signing of the Geneva Conventions.  1949 was a very good year.  Ah, I remember it well.

Before I talk about the importance of the Geneva Conventions to our nation and to the world, let me first say something nice about the ICRC.  And before I do that, I feel the need to establish my ICRC credentials so you don’t think I am just pandering to the crowd.

In 1969, there was a terrible civil war in Nigeria.  At the time, I was a young volunteer, working for a Congressman, carrying his bags and his books and making his appointments.  Because of his past history and involvement in Africa, he became a critical figure in the effort to broker a peace between the federal government of Nigeria and the secessionists in Biafra.  To do that, we had to go to Nigeria, go through the war zone and somehow get into Biafra.  We traveled to Lagos, had meetings with the Nigerian leadership there, drove up the West Coast of Africa to Cotonou in what was then Dahomey and hitched a ride on an ICRC plane into Uli airport carrying a load of stockfish to feed the Biafran children.  To avoid the Nigerian air force, the ICRC plane took off in the middle of the night – it was 2:00 a.m. – and flew straight West out over the Atlantic Ocean.  We turned left and went South over a field of oil rigs, which we could see because of the flames on the tops of the derricks.  We then turned left again and flew straight East into the heart of the Continent – all the time dodging the federal air force.  We descended into total darkness onto an airstrip that had no lights.

As we approached the ground, two rows of trucks – three trucks in each row – lined up on both sides of the airstrip and turned on their headlights to light the air strip.  The moment we touched the ground, the headlights were turned off.  The ICRC pilot opened his side window and leaned outside with his flashlight in hand to light the way.  I do recall that bombs from Nigerian aircraft started falling before we “cleared customs,” which made the arrival even more exciting.  Fortunately for us, the Egyptian pilots flying the Nigerian planes were lousy navigators and even worse bombers.  I think they killed a lot of palm trees.  During that terrible conflict, the ICRC saved thousands of lives, young and old.  I saw it firsthand.

I have worked with the ICRC off and on now for almost forty years.  I can report that the delegates I have known –since that time in Nigeria four decades ago – have been uniformly smart, energetic, tough-minded, pragmatic and highly motivated.  These are hugely impressive people doing hugely impressive things, and they deserve the gratitude and admiration of the entire international community.

The ICRC continues to serve the international community, and it does so in the worst of conditions and under the most challenging of circumstances.  Time and time again, this organization has established an astonishing record of bravery, of neutrality, of impartiality, of independence and of reliability.  Throughout the world, the ICRC is known for its professionalism, for its discretion, for its fearlessness, for its willingness to be pragmatic and for its many sacrifices.  When we lose an ICRC person – which happens all too frequently – the entire world is in mourning.  So I begin my remarks tonight by simply saying thank you to the ICRC for all that you have done in the past and for all that you continue to do today.

This audience needs no instruction about the importance of the Geneva Conventions – not only to the civilian populations who suffer from the horrors of war and receive assistance, not only to those in uniform who engage on the field of battle and receive protection, but to all who care about building a more compassionate world community based on cooperation and interdependence and the rule of law.  For hundreds of years, there were no standards, no rules, no rights or wrongs about what could be done to those taken captive in the course of battle.  For hundreds of years, there was barbarity not only in the treatment of combatants captured on the field of battle but also in the treatment of civilian populations caught up in the midst of war.  The signing of the Geneva Conventions brought hope that there would be change.  And although we have made progress in some ways, it would be quite wrong to suggest that that was then and all’s right with the world now, that with the arrival of the Geneva Conventions, all the problems of cruelty in wartime were solved.  It is a sad fact, for example, that the 1990s was a decade that witnessed the worst civilian-to-combatant ratio of deaths in recorded history.  And it is even more disappointing that, in recent years when we resorted to the use of enhanced interrogation techniques the United States fell short.

We cannot talk about the history of the Geneva Conventions without mentioning an extraordinary figure in that history, Henry Dunant.  Born in Geneva in 1828, he found himself – as a young man – on the battlefield of Solferino.  He was so appalled at the plight of thirty-eight thousand dead, dying and wounded, that he undertook to organize the civilian population to assist the soldiers.  He wrote a book about the experience and came up with the idea of creating a neutral organization to provide care to wounded soldiers.  The Geneva Society for Public Welfare embraced Dumont’s ideas and appointed a committee of five persons to pursue the idea.  That Committee – later known as the International Committee of the Red Cross – first met on February 17, 1863.  That date is now recognized as the founding date of the ICRC, which celebrated its 146th birthday six months ago.

The Geneva Conventions did not descend from heaven sixty years ago like a cloud of enlightenment bringing instant wisdom and compassion to a war weary world.  The Geneva Conventions were many decades in the making.  The first ten articles of the First Geneva Convention were actually adopted in 1864 by twelve nations.  The United States didn’t ratify that treaty – called the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field – until 1882.  The second treaty dealing with “the conditions of Wounded, Sick and Shipwrecked members of Armed Forces at Sea” was not adopted until 1906.  The third treaty – adopted in 1929 – protected prisoners of war.  And the fourth treaty, for the first time requiring the protection of civilian persons in time of war, was adopted along with all the others on August 12, 1949 – sixty years ago today.

Common Article 3 – a core component of each of the Geneva Conventions – is what we talk most about these days, because it establishes a baseline standard of humanitarian treatment for detainees.  Common Article 3 bans “outrages upon personal dignity” and prohibits in particular “humiliating and degrading treatment.”  Although the United States has been a signatory of the Geneva Conventions for many decades, the significance of being a signatory did not become apparent until, in the Hamdan case, the Supreme Court ruled that the basic legal protections of Common Article 3 applied to detainees taken in the US war against al Qaeda and its affiliates – not as a matter of customary international law but as a treaty obligation that is binding on our government.  This was an amazing and gratifying opinion, and hugely consequential.  It was an authoritative opinion from the highest court in our land holding that the Executive had to comply with these Geneva obligations, that at least this particular portion of the Geneva Conventions did apply even to those taken captive in what President Bush called the war on terror.  Linda Greenhouse called the ruling “an historic event, a defining moment in the ever-shifting balance of power among branches of government.”

I don’t have to go through the long and agonizing history of what happened after Hamdan for you to know this:  thanks to Common Article III, the UN Convention Against Torture, the Constitution of the United States, the American judiciary and, most recently, the American electorate, one thing is now certain:  individuals taken into custody by the United States must, as a matter of U.S. law, be treated humanely.

I am a trial lawyer and I spent two years of my life as a federal public defender defending poor people charged with crimes in federal courts in Connecticut.  In that position, I learned never to take the Constitution for granted.  As a young lawyer who stood up to make arguments on behalf of people in deep trouble, I always felt that whenever I stood up, the Constitution was in jeopardy – particularly the fourth, fifth and sixth amendments.  From my point of view, all the 200 years of progress achieved since 1789 could be lost if not reversed in the wink of an eye, at least when it came to my cases and my clients.  All that this country stood for and fought for and was known for – in my view – was at stake every time I fought to suppress a coerced and uncounseled confession or argued against a warrantless search or objected to testimony from an accuser who the government didn’t want me to cross-examine.  Law students used to ask me how I could sleep knowing I was defending someone who was guilty.  I said, “That does not keep me awake.  What keeps me awake at night is when I represent someone who I think might really be innocent”.  As I saw it, my poor abilities as a lawyer and a fragile Constitution were the only two things standing between that innocent person and a gross miscarriage of justice.

That is the way I feel about the Geneva Conventions, that they are fragile and always in peril.  As wonderful and as historic and as important as they were and are, the struggle to preserve the progress that they represent is never ending.  As we know, the temptation, the pressure to revert and regress is always there, particularly in times of emergency and crisis.  If we have learned anything from our recent experience, it is that we should never take progress for granted.  We cannot be complacent, and if ever we needed proof of how easy it is for us to lose our way, we have that proof yet once again.  The progress that we have made as a nation and as a world requires constant attention.  It must be fought for and defended and protected every day.  As Geoff Loane said:  “This law (the Geneva Conventions) is not being respected nearly enough even today.”

It is ironic but true that, at the same time we have been witness to slippage and reversals, we also discovered strength and support for the Geneva ideals in ways and in places that some of us might never have anticipated.  Apparently the change that began in 1949 – without us knowing it – took root and got stronger and become part of our own culture.

One of the most powerful experiences I had working on the Obama campaign was – with Eric Holder – representing Senator Obama at a meeting with former general officers from the Army, Navy and the Marine Corps.  This meeting had been organized by former leaders of the American military establishment to express their support for strict US adherence to Common Article III of the Geneva Conventions and to state their total and unequivocal opposition to the practice of torture.  These individuals stood up and spoke out and had an impact on the candidates and on the course of that campaign and on our nation’s history.  Is it not worth marveling – is it not really amazing – that the issue of our compliance with the Geneva Conventions came up in an American presidential campaign? And is it not worth noting that a woman named Hillary Clinton, a man named Barack Obama and a former POW named John McCain all made clear – in the course of that campaign – that they each supported strict adherence to the Geneva Conventions in the treatment of individuals in US custody?

I am someone who believes that the issue of torture is not just a legal issue.  It is certainly that, of course.  It is not just a moral issue.  It is that, too.  But it is also a terrible strategic mistake that does enormous damage to our nation’s security.  Whatever former Vice President Cheney might claim to be the benefits of torture, no one can dispute one basic and fundamental truth.  The fact that the United States – in its effort to win the global war on terror – used torture as a means to that end did enormous damage to our standing in the world, to our self respect, to our ability to lead others and to our ability to work with friends and allies.  And it did damage to our security.  As President Obama said in his May 21 speech at the National Archives:

“Some have argued that brutal methods like water boarding were necessary to keep us safe.  I could not disagree more. . .  [These interrogation techniques] undermine the rule of law.  They alienate us in the world.  They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us while decreasing the will of others to work with America.  They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured.  They did not advance our war and our counterterrorism efforts . . . they undermined them.  That is why I ended them once and for all.”

And so from our recent experience, we have learned an important lesson the hard way.

But there is yet another lesson to be learned from sixty years of experience with the Geneva Conventions, and that is this:  To make progress in the world – whether it is to destroy a common enemy, to end the practice of torture or to combat dangerous disease – we must be able to work with others.  There must be a common cause and a common effort.  We must understand that our lives on this planet are linked today as never before, that what happens to people on the other side of the world can and will affect our lives on this side of the world.  The message is plain:  To achieve our common security, we must recognize our common humanity.

Whether the mission is to catch and incapacitate terrorists who pay no attention to national borders and move from state to state with speed and stealth, or whether it is to protect our populations from a flu pandemic, whether it is fighting a global recession or combating climate change, we cannot do it alone.

Let me just make one final point about the price we will pay as a people if we, as a government, are cavalier or negligent about complying with the spirit as well as the letter of the Geneva Conventions.  When I worked for Senator Kennedy during the 1980s, the ICRC welcomed us, worked with us and was a partner with the United States Government.  I frequently traveled with the ICRC into zones of war and combat, and watched them at work.  The ICRC taught us about its mission and its mandate, and its example was there for us to see every day.  But supporting the ICRC is only the beginning of achieving the aims of the Geneva Conventions.  Yes, the ICRC is the guardian of the cherished principles set forth in the Geneva Conventions, and yes, it has a special place – but it is only one organization.  Those same governments that signed the Geneva Conventions sixty years ago did so not only with a promise to observe but with a pledge to promote adherence to the Geneva principles.

We recognize and applaud and support the work of citizens and soldiers and NGOs who are in the field and who abide by the spirit and letter of the Geneva Conventions.  But the dream of those who signed the Geneva Conventions was of a more humane and compassionate world.  That dream cannot and will not be fulfilled without vigorous compliance and enforcement – in reality as well as in rhetoric – by all those governments that have signed on the dotted line and made a pledge to their own people and to all humanity.

Working with all of you who are here tonight and in full partnership with this amazing organization, we must keep that pledge.

Thank you.