I’ve read enough stuff that I disagreed with on this subject that I genuinely felt I had to comment. We shouldn’t allow pictures of Saddam Hussein in his skivvies to be taken and they shouldn’t be shown.
Both the United States and the United Kingdom are signatories to the Geneva Conventions relative to the Treatment of Prisoners of War. Let’s look at a few of the provisions from that treaty:
From Part II, Article 13: “Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.”
From Part II, Article 14: “Prisoners of war are entitled in all circumstances to respect for their persons and their honour.”
Saddam Hussein is a prisoner of war. We are obligated by the treaty to protect him from public curiosity. That taking pictures of him in his underwear and then allowing those pictures to be published in a newspaper is a failure to protect him from public curiosity would appear to be self-evident. That it is a failure to secure “respect for his person and his honor” would also appear to be self-evident. If you don’t believe so, just read any of the many outraged comments from Iraqis.
That Saddam Hussein is vile and loathsome is irrelevant. The United States is a party to a treaty and the terms of that treaty should be scrupulously observed.
I agree with those who point out that in the total scheme of things a picture in his skivvies is small potatoes compared with the thousands or hundreds of thousands of atrocities that Saddam committed, ordered to be committed or condoned. But that, too, is irrelevant. The issue isn’t Saddam, it’s the United States.
I further think it is arguable that, were The Guardian a U. S. newspaper, the United States government would have been within its delimited powers in censoring the newspaper. Consider Article VI, Clause 2 of the U. S. Constitution:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Get that? The provisions of treaties are the supreme law of the land and take precedence over other U. S. law. Treaties may take precedence over the first amendment to the Constitution. I don’t know British law well enough but I suspect it has similar provisions.
I think that we enter into treaties too lightly; I think we enter into treaties that we shouldn’t. For example, I think the United States should only enter into treaties that limit its own i.e. government action. It should never enter into treaties that limits private action of individuals or companies. Our sovereignty and our liberties are more important than the material benefits of any such treaty. So, nuclear test ban? Sure. Geneva Conventions? Maybe. Kyoto Protocols? Absolutely not. International Criminal Courts? Definitely not.
You may take the position that we should not be a signatory to the Geneva Conventions. You may take the position that there’s nothing wrong with publishing a picture of Saddam Hussein in his underpants. If you simultaneously take the position that we should be signatories to the Geneva Conventions and that there is nothing wrong with allowing a picture to be taken of Saddam Hussein in his underpants and allowing it to be published, you are taking the position that the United States enters into treaties without the intention of keeping them and that you should not do.
So, am I outraged that somebody took a picture of Saddam in his skivvies and allowed it to get into the hands of a newspaper? No. I’m outraged that the United States isn’t living up to its treaties.
No, I think Near v. Minnesota would still hold: the gov’t can’t exercise prior restraint on the press, and nothing in Geneva says that it can. So the leaking of the photos would violate Geneva, but not the publication.
I suspect that it would have to be litigated. But I’m no expert and you may be right.
In any enterprise as large and chaotic as war, violations of law are bound to occur. In this war, more than any before it, the violations of one side — the United States and its allies — are immediate brought to light. In virtually every case, they were brought to light after they had been investigated by the United States itself. Even in SkivviesGate, the United States responded quickly at the highest levels. In any case, how a government responds to a violation of law is important. Notwithstanding the partisan bleatings of the left, I cannot think of another example in history of a government responding as openly as the United States has to charges of war crimes (other than perhaps Israel on various occasions).
The other fairly obvious point is that the Geneva Conventions protect the dignity of soldiers in part because rank-and-file grunts are considered to have been doing their duty, substantially under compulsion. Saddam, however, is an asshat of a different color. While it is true that he is treated as a prisoner of war because of his membership in the Iraqi military, his culpability is of an entirely different order than that of the typical soldier for whom the Geneva Conventions were devised. I shed no tears here. Indeed, most of the public expressions of rage at the United States over this episode are disingenuous, and motivated by other purposes than concern for the rule of law.
Tigerhawk, I think I agree with everything you wrote here. Again, I don’t care a bit about Saddam Hussein or his alleged dignity. I do care about the United States, though, and our ability to be taken at our word and have our treaties relied on.
I’m tempted to be sarcastic and note that the Geneva Conventions are “quaint,” but I’ll spare you. You might be interested in the history of the Bricker Amendment, though, and its ups and downs during the Eisenhower Admin. Note particularly the subsequent Reid v. Covert decision. You may find it reassuring, if you’re not familiar with it (if you are, my apologies.)
Thanks, Gary, and, no, I wasn’t familiar with the Bricker Amendment or Reid v. Covert. And I am slightly reassured but, frankly, not completely. In recent years the Court seems to me to have deferred to the President and the Congress in ways that I found rather distressing.
One point you should keep in mind when you hear ‘violation of the Geneva Convention’ is that the US did not ratify the two protocols of the Geneva convention that were done in 1977. Some of our ‘violations’ of the ‘Geneva convention’ are violations of protocols we did not ratify.
Which has little to do with this case since the US itself did not violate the Geneva Convention (either ratified or unratified portions), in this case, nor did Britian. If a US servicemember leaked the photos, he violated the conventions (parts we did ratify) and should (likely will) be punished. And it was an independent (not Government-run) newspaper in Britain that published the photos. The US did not violate anything. One (or more) of its citizens may have committed a crime but the US did not. Same goes for Britain (with the substitute of ‘subjects’ for ‘citizens’).
Sorry, Kathy. Both the United States and Britain did ratify the 1949 Convention which is the one I cited here. Read the text a little more carefully. Whoever has custody of Saddam Hussein (we don’t actually know whether it’s the U. S. or Britain) did not protect the prisoner from public curiosity. The violation is in allowing a picture to get into the possession of a newspaper which, in turn, published it.