2004.07.05 - PEGC Extra
=======================

Here's an item posted today on the ASILforum by the Honorable Evan J. Wallach,
US Court of International Trade (Adjunct Professor, Law of War, Brooklyn Law
School, New York Law School; Visiting Professor, Law of War, University of
Münster)...


Subject: A response to the "obsolescence" of the Genevas

From: Evan J. Wallach
To:   Ewen Allison
CC:   ASILforum@listserve.asil.org

Date: Monday, 5 July 2004 13:34:34

The American Society of International Law ASILforum Discussion Group
....................................................................


Dear Friends:

Here are some thoughts on the validity of the 1929 Geneva Convention by the
Provost Marshal General of the United States Army, Maj. Gen. Archer Lerch in
1945. Although they address the 1929 Geneva convention, I find them distinctly
relevant to White House Counsel Alberto Gonzales' and John Yoo's arguments about
obsolescence.


      *         *         *         *         *         *         *


    Thomas Baily Aldrich once said: "My mind lets go a thousand things, likes
dates of wars and deaths of kings."

    That man's (who wrote complaining of kind treatment of enemy prisoners of
war) mind had "let go" that historic scene in the United states senate in 1917
when the Senate condemned the German Kaiser, Wilhelm II, for terming the solemn
treaties of his government "scraps of paper" and then declared war on Germany.
His mind had "let go" another historic day in the same United States Senate in
1932 when the Geneva Convention -- a treaty between this country, Germany, Great
Britain and forty-three other powers -- was ratified. This treaty lays down the
rules governing the treatment of prisoners of war and supplies the answers to
why the prisoners were [well treated].


      *         *         *         *         *         *         *


    The War Department has followed strictly the terms of this treaty in all the
orders and directives that it has issued governing the treatment of prisoners of
war. And I do not believe that any thoughtful person would have the War
Department do otherwise.

    The Geneva Convention, I might emphasize is law. Until that law is changed
by competent authority, the War Department is bound to follow it.


      *         *         *         *         *         *         *


    The treaty was ratified and proclaimed in accordance with the provisions of
the Constitution of the United States, Article 6 of the Constitution provides:

    "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..."

    That treaty, like other laws, can be changed but it cannot be changed by the
War department's regarding it as a "scrap of paper." Such an attitude on the
part of the War department would mean that our government is no more honest than
others it severely condemned. It would mean that this government had sacrificed
the place of honor and moral leadership that it has earned in the eyes of the
world and had suck to the level of Japan whose emissaries talked peace while its
army went to war.

    I do not intend to indicate that I think the Convention should be changed. I
do not think that any of us are now emotionally fitted to tackle the job of re-
evaluating one of the few international laws that has withstood, with a
considerable measure of success, the hatred and lawlessness that war breeds.


Lerch, The Army Reports on POWS, The American Mercury, May, 1945, pp. 536-547.


* * *

Charles Gittings
Oakland, California

cbgittings@sbcglobal. net

+1-510-923-1688

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