A Treatise on Treaties
Unfortunately, far too many people (including our leaders) do not fully understand what exactly a treaty is or how it is supposed to work. A treaty is really nothing more than a legal contract between two or more nations. To deconstruct the meaning even further, we should ask the question: “What is a contract?” A contract is a legal agreement with two or more persons or entities. A legal contract requires that all parties involved agree to the contract’s terms. If one party does not agree to the terms of the contract by not signing the contract, he or she cannot be held in breach of contract nor can receive any of the contract’s benefits. In the event that one of the parties fail to meet the contract’s obligations to the other party or parties, the wronged party or parties no longer are required to meet obligations of the offending party and can pursue legal action. When a renter fails to pay his or her landlord according to the rental contract, for example, the landlord can have the renters evicted and possibly take the renters to court to force them to pay.
When it comes to nations honoring and enforcing treaties, it seems to be more complicated. What are the consequences when one or more nations decide not to honor the treaty?
In the case of Saddam Hussein’s Iraq, it meant economic sanctions and eventually war for violating multiple U.N. resolutions. Though the specific WMD found in Iraq might not have applied to the U.N. resolutions, Saddam failed to meet his end of the treaties he agreed to at the end of the first Gulf War. One of the most blatant breaches was his antiaircraft attacks on coalition war planes patrolling the “no fly zones.” Other violations included expelling U.N. weapon inspectors in the 1990’s. Continuing violations of the many treaties could not be allowed indefinitely, otherwise the treaties would become meaningless (as many U.N. treaties and resolutions are).
When it comes to the so-called torture debate, al Qaeda, insurgents, and Taliban fighters are not contracting parties to the Geneva Conventions. Arguably, the Taliban was a government of sorts but did not sign the Conventions (at least to my knowledge, someone please correct me if I am wrong). Insurgents, al Qaeda, and other individuals could not sign the treaty even if they wanted to because treaties can only be signed by nation states, not individuals. These terror groups can no more be contracting parties to the Geneva Conventions than the Bloods, the Crips, or the Mafia. Because none of these groups have not or otherwise do not have the ability of signing the Conventions, governments are not required to treat them as they would soldiers of countries which have signed and abide by the Conventions.
This is Common Article 3 of the Geneva Conventions, the specific part which the president and the senate are debating (Bold words are my emphasis):
In the case of armed conflict not of an international character occurring in
the territory of one of the
High Contracting Parties , each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment; [What the hell does that mean? Isn’t being dressed in an orange jumpsuit, full body cavity checks, and being forced to follow a daily routine by one’s captors ‘degrading’ and ‘humiliating’? No wander the president wants this part clarified!]
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.The Parties to the conflict should further endeavour [sic] to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Article 3 clearly states that these legal protections only apply to prisoners of war as defined elsewhere by the Conventions. Whenever these thugs organize as an army as part of a nation state which signs the Conventions, stop targeting civilians, and stop strapping bombs to children, then we can talk about providing Geneva Convention protections to our enemies in Iraq, Afghanistan, and elsewhere.
In the case of “Dog” Chapman, the famous bounty hunter who may serve time in a Mexican jail, we have a case where two countries, the U.S. and Mexico, have signed treaties with regard to extradition. Mexico has failed to hold up its end of the treaties while the U.S. continues to uphold its part of the treaties.
On May 4, 1978 the U.S. and Mexico signed a treaty to deal with extradition of wanted persons. Among the provisions of the treaty is that fugitives who will likely receive the death penalty shall not be extradited unless assurances are made that the death penalty will not be carried out. Since that time, the Mexican Supreme Court went beyond the terms of the treaty and decided that life imprisonment is also “cruel and unusual,” and therefore, will not extradite individuals who would likely receive a life sentence. In their view, the purpose of punishment should be for the purpose of rehabilitation (as if it is their place to make a ruling based on the domestic policies of another country).
With that decision, Mexico violated the terms of the treaty. Why should the U.S. hold up its end of the treaty by giving Mexico Chapman? An even more important question: What crime did Chapman commit?
Both answers have to do with Mexico’s failure to honor the treaty. Chapman’s “crime” was taking Andrew Luster, who was wanted in the U.S. on rape charges, and bringing him back to America to face the charges. Luster was convicted and is now serving a 124 year term. Once again, Mexico believes such a long sentence as cruel and unusual which is likely the reason Mexican authorities never arrested or extradited Luster. Because of Chapman’s daring to capture a dangerous fugitive in a foreign country, Mexico wants to try him for kidnapping!
Technically, Chapman did commit a crime. Though he has the license to arrest fugitives in America, he has no such legal authority in Mexico as bounty hunting is a crime in Mexico. Technically, extraditing Chapman to Mexico is the right thing to do. I would argue, however, that because Mexico has failed on so many occasions to extradite U.S. criminals for violating U.S. laws, the U.S. has no obligation to continue to honor the treaty by returning Mexican fugitives who violate Mexican laws.
In all three of these examples, undoubtedly some will say that America should be “better” than those who violate the terms of the treaty. America could have imposed more diplomatic punishments on Saddam and kept him contained, could give individuals who wish to destroy America Geneva Convention legal protections even though the protections are not legally required, and return Mexican fugitives back to Mexico regardless of Mexico’s refusal to do the same.
Would doing any of these really make America a better and more respectable country? I would have to say no. Putting aside any of the legal reasons, continuing to honor a contract or treaty when the other party ignores the terms is pointless and destructive. Writing nasty letters to despots via the United Nations rather than taking decisive action to remedy the problem makes nations such as the U.S. appear weak. The same is true about Islamofascists who watch as our policy-makers wrangle on such non-issues as sleep deprivation, playing of loud music, and “mishandling” their Koran. Murderers, rapists, and other such undesirable individuals know that if they can flee to Mexico to escape justice, someone such as Dog Chapman can be arrested in America and sent back to Mexico for doing America a great public service.
When it becomes clear that countries are no longer in favor of honoring a treaty, it is time to consider amending it or scrapping it altogether. Sometimes treaties outlive their usefulness. Clearly, the Geneva Conventions need to be amended and clarified to deal with individuals who make war on countries using unconventional tactics. If Mexico no longer likes the treaty of 1978, perhaps it is time to negotiate a new one. Allowing murders and rapists to wonder the Mexican countryside cannot be good for Mexico’s citizens either. Contracts and treaties can only be effective if all parties involved believe they have something to gain from the agreement. Simply put, self preservation (or selfishness if you prefer) is the key to ensure that all parties hold up their end of the agreement. It should come to no one’s surprise that most people will not honor an agreement which is destructive to his or her own self interests. The same holds true for countries.