The Bush Administration has been widely criticized for the allegedly unprecedented policy of interpreting the definitions of portions of the Geneva Conventions. And Senators McCain, Graham, and Warner recently waged a very public battle in the Senate specifically to ensure “that there be no attempt to redefine U.S. obligations.”
Bush Administration opponents are mistaken. There is a very prominent case of the United States refusing to accept the definition of treaty terms used by the enemy, and openly defying world opinion.
In WWI, the US military issued Winchester Model 1897 slide-action shotguns to US troops, along with buckshot-loaded cartridges. Each 12 gauge round contained nine size 00 buckshot. The shotguns featured a bayonet lug, and a perforated metal cover to protect the hand from the barrel becoming over-heated by rapid fire.
The shotguns were found to be desirable weapons, very useful for clearing trenches and in close combat. They were particularly popular with the Marines, who put them to conspicuously good use in Belleau Wood.
Germany, in 1918, protested US use of shotguns firing multiple projectile buckshot ammunition as a violation of Section II of the 1907 Hague Convention (the Geneva Convention’s predecessor treaty), which forbade belligerents to employ arms, projectiles, or material calculated to cause unnecessary suffering.
But, as W. Hays Parks, Special Assistant for Law of War Matters, Office of The Judge Advocate General, U.S. Army, notes in a 1997 paper, DA-PAM 27-50-299, the United States interpreted the Hague Treaty differently, rejecting the German protest.
The highly-effective use of the shotgun by United States forces had a telling effect on the morale of front-line German troops. On 19 September 1918, the German government issued a diplomatic protest against the American use of shotguns, alleging that the shotgun was prohibited by the law of war.
After careful consideration and review of the applicable law by The Judge Advocate General of the Army, Secretary of State Robert Lansing rejected the German protest in a formal note.
Threats to punish captured American soldiers found armed with shotguns met the stern US warning that any unjustified measures taken against US prisoners of war would be retaliated in equal measure upon captured Germans.
The reality is that international agreements of this kind invariably include substantial quantities of broad and unspecific statement, inevitably requiring interpretation. Someone has to decide whether 00 buckshot constitutes the kind of projectile “calculated to cause unnecessary suffering.” Someone has to decide today whether keeping someone in a cold room, or subjecting someone to “water-boarding,” constitutes torture.
What is remarkable is that, in the old days, Germany would argue for definitions which were in Germany’s interest, and United States officials would argue for interpretations which were in the interest of the United States. Today, our leading media outlets, a substantial portion of the body of active participants in policy debate, the former Secretary of State, and even three prominent Republican senators are found shouting their heads off in the public square, demanding that the United States adopt interpretations as inconvenient to US interests as possible.
Some of us find all this more than a little grotesque.