WASHINGTON, DC — For an administration that disdains and even undermines institutions of international law such as the International Criminal Court (ICC), the Bush White House certainly can find uses for international law when events so dictate. That was demonstrated clearly last weekend. After independent Arab television network Al-Jazeera showed grisly footage of slain American troops and heart-rending video of captured US soldiers, the White House responded with a chorus of threats — and by invoking the international law that governs war.

In one statement, President George W. Bush said: " I do know that we expect them to be treated humanely, just like we’ll treat any prisoners of theirs that we capture, humanely. " On CBS’s Face the Nation, Secretary of Defense Donald Rumsfeld struck an even sterner note: " The Geneva Convention indicates that it’s not permitted to photograph and embarrass or humiliate prisoners of war. "

The Geneva Conventions cited by Rumsfeld are a series of four international agreements signed in 1949 in Geneva, Switzerland. These " conventions " ostensibly govern the conduct of warfare — and bind their signatories to rules governing the treatment of medical workers, civilians, and prisoners of war. The three main combatants in the present war — Iraq, the United States, and the United Kingdom — all have signed the 1949 Conventions. Two additional 1977 protocols that protect the rights of those waging guerrilla or " anti-colonial " wars have been ratified by Britain, but were rejected by Iraq; the US signed the agreement, but left it unratified. But all three nations have agreed to follow the Convention rules set out for prisoners of war.

The Al-Jazeera footage turned Sunday’s TV broadcasts and Monday’s newspapers into a primer of sorts on the Geneva Conventions. In Monday’s Washington Post, for instance, the full text of Articles 13 and 14 of Convention III were published alongside a story about the footage. However, the Bush administration’s effort to hold Iraq to its Geneva Convention obligations carries more than a whiff of hypocrisy. The American media — both in this conflict and in the previous Gulf War — have shown footage of surrendering Iraqis and Iraqi POWs. Indeed, Human Rights Watch released a statement Monday saying, in part: " It violates the Geneva Conventions for either the Iraqi or the U.S. government to deliberately expose prisoners of war (POWs) to the media. " The treatment of the detainees in the ongoing " war on terrorism " held at the US military base in Guantánamo Bay, Cuba, moreover, has raised even more profound questions of US adherence to the rules of war.

Many human-rights observers argue that the fact that international humanitarian law can still command the spotlight as war engulfs a country — and that the inherent ironies can be noted and explored — constitutes a major advance. Others see a gradual erosion of rules in the conduct of numerous wars all over the planet, but debate whether this is a good or bad thing — which may come as a surprise to some readers.

In the conclusion of his book Waging Modern War (Public Affairs, 2001), General Wesley Clark — who commanded NATO forces during the 1999 air war against Yugoslavia — succinctly details how the consensus on international humanitarian law developed. Comparing the " precision strikes " of the Kosovo campaign to the " fire-bombings and carpet-bombings of World War II, " Clark observes that an abhorrence of civilian casualties " was a direct result of [World War II]’s doctrine of ‘total war,’ and in the aftermath of World War II, international legal efforts to reduce the costs of war to noncombatants was intensified, most notably in the 1949 update of the Geneva Conventions. "

Yet there are those who argue that the 9/11 attacks have changed the world — and the very idea of conflict. David B. Rivkin Jr. and Lee A. Casey, who served as legal staffers in the administrations of Ronald Reagan and the first president Bush, see the erosion of consensus on international humanitarian law as a necessary component of the US war on terrorism. In a March 16 op-ed in the Washington Post titled " That’s Why They Call It War, " Rivkin and Casey argued that " [a]ccepting [international humanitarian law] as the governing code in war would handicap our ability to defend American lives and interests in a world in which they have never been more threatened. "

The authors noted that " [m]ost of [international humanitarian law] was developed during the Cold War, when its application was merely theoretical. " In the " long-term life or death struggle against rogue states and international terrorism, " Rivkin and Casey believe that laws governing warfare should be rolled back from the growing body of international law designed to limit civilian casualties to more traditional principles of jus in bello ( " law in or during war " ). Such a rollback would allow the United States to distinguish, for instance, between " unlawful attacks designed to kill civilians and legitimate attacks on military targets that might result in civilian deaths. This allows massive assaults against an array of military targets, even if a substantial amount of collateral damage ensues.... "

Rivkin and Casey acknowledge that treaties such as the 1899 ban on hollow-point " dumdum " bullets, the 1929 prohibition of poison gas, and the 1949 Geneva Conventions make up " traditional rules of war " to which the United States should generally adhere. Nonetheless, their rhetoric argues convincingly for a complete unshackling of the United States from the constraints of existing laws of war when the " long-term life or death struggle against rogue states and international terrorism " conflicts with international humanitarian law.

The step from jus in bello to a total flouting of international law is much shorter than it appears. After all, we are living in times when the traditional notion of a " prisoner of war " has been overturned by the Bush administration with mere semantics. We are also in an era where the " nontraditional " tactic of buying proxy fighters not subject to international law is applauded as " innovation. " (Was Afghanistan’s Northern Alliance, for instance, made up of Geneva Convention signatories?) At present, the " unlawful combatants " of Afghanistan are exempt from the protections that Bush seeks for US prisoners in Iraq. Is this jus in bello? Or another " innovation " in age-old traditions of bellicosity?

LAST WEEK, the Swiss Foundation for World Affairs at the Johns Hopkins School of Advanced International Studies (SAIS) in Washington, DC, hosted a forum on " International Law and Human Rights: How Relevant Are They in Today’s Wars? " The discussion explored many of the issues suddenly dominating the headlines.

The panel’s keynote speaker was Human Rights Watch founder and Open Society Institute president Aryeh Neier. In his address, Neier put the question of the relevance of rights during war provided by humanitarian law in stark terms: " Is the era of rights already over? "

Neier quickly registered his " no " vote, but not without some caution. " I do think, " he said, " as happens periodically, there are always difficulties in promoting rights. " The growth of groups such as Human Rights Watch and Amnesty International, he noted, was no accident. " If defense of rights was simple, " he said, " there’d be no need for the machinery of [non-governmental organizations] dedicated to the promotion of rights. "

The advances made by advocates of humanitarian law, argued Neier, have been " immense. " Most notable among them, he said, has been the growing concern about civilian casualties among the public and in military circles. Much of Clark’s Waging Modern War, for instance, details the concern among political and military leaders that Neier cites. But it also demonstrates another obsession in the military that Neier thinks will likely increase the numbers of civilian casualties and muddy the legality of war: the valuing of soldiers’ lives above those of civilians.

Neier noted that in Kosovo, " it was crucial for the US to suffer as few military casualties as possible. " Thus, the war was conducted via aerial bombings from a great height and missile attacks from a great distance. These tactics caused the inadvertent destruction of civilian targets (most notably a passenger train) — and occasionally a diplomatic faux pas, such as the bombing of the Chinese embassy in Belgrade.

The tactic of bombing from great distances to minimize military casualties is not the only potential trouble spot in modern warfare. Neier also deplored the trend — celebrated in Bob Woodward’s account of the White House’s conduct of the recent Afghan campaign, Bush at War (Simon & Schuster, 2002) — of engaging stateless or semi-legal proxy forces to achieve US military aims while operating outside the rules of war.

What can go wrong in such situations was demonstrated in Afghanistan. In an August 26, 2002, story headlined the death convoy of afghanistan, Newsweek reporters Babak Dehghanpisheh, John Barry, and Roy Gutman told the horrifying tale of Taliban fighters who had surrendered to an Afghan warlord and US ally, General Abdul Rashid Dostum. According to the newsmagazine’s account, almost 1000 prisoners were executed by asphyxiation in November 2001 — herded into closed trucks and killed in what the story dubbed " death by container. " The story also noted that " officials across the administration did not respond to repeated requests by Newsweek for a detailed accounting of U.S. activities in the Konduz, Mazar-e-Sharif and Sheberghan areas at the time in question, and Defense Department spokespersons have made statements that are false. "

Neier argued that in delegating so much of the Afghanistan conflict to proxy and stateless fighters, the United States ended up " relying on the Dostums " — who have wide freedom to wage war as they see fit, ignoring international norms.

Much of the rest of the panel discussion that followed Neier’s keynote address tackled the complications and nuances of applying international law amid the fog of war. In many cases, the discussion generated more questions than answers — proving just how knotty the collision of war and law can be. Christophe Girod, the North American head of the International Committee of the Red Cross, argued strongly against the notions laid out by critics of international humanitarian law such as Rivkin and Casey. He asserted that rather than serving as an à la carte menu for warring parties, the current laws regulating conflict are simply the " minimum standards " — and that they possess " no suspensive principle " for signatories to the Geneva Conventions. Human Rights Watch senior legal adviser James Ross took an equally uncompromising position, ticking off numerous concerns on issues ranging from urban warfare to the use of unnecessarily indiscriminate weaponry.

One of Ross’s concerns was particularly intriguing — and served as a path into the thornier questions of law and war. In the last Gulf War, Iraqi dictator Saddam Hussein took hostages to use as human shields. In such cases, the civilian status of the hostages is clear. But what is the status of those who have chosen — as some have done in the present conflict — to act as human shields? By their decision willingly to place themselves in harm’s way — even as noncombatants — have they somehow compromised their " civilian " status?

The Pentagon thinks that they just might be doing so, according to a briefing given by a " senior defense official " on February 26, 2002, on the topic of human shields. Asked about the status of volunteer human shields, the unnamed official replied: " I’m not a legal expert, but you certainly could argue that since they’re working in the service of the Iraqi government, they may, in fact, have crossed the line between combatant and noncombatant. But I can’t pass judgment on that. "

Such gray areas were seized upon by American University law professor and noted human-rights lawyer Kenneth Anderson, who volunteered to play " devil’s advocate " in opposition to the hard-and-fast stands taken on the applicability of international law. The law could be read, he argued, in such a way as to show that " volunteer " human shields do compromise their status as civilians.

The thrust of Anderson’s " devil’s advocacy " was that the law as it is written has been interpreted too expansively by human-rights advocates. " Too much of what goes on is not a clear statement of the law, " Anderson said. He pointed out that the laws of war apply equally to both parties in a conflict, yet the emphasis is often placed on violations by the aggressors, while the defenders’ actions are ignored. " There’s a sense that the rules do not apply equally, " he argued, citing media coverage of alleged violations of the laws of war in the Jenin refugee camp in 2002. Israeli troops were criticized harshly for the use of excessive military force, but Palestinian tactics within the crowded camp escaped similar censure.

Anderson’s thought-provoking comments infused the discussion with an air of uncertainty that mirrored the troubling images now emerging from the conflict in Iraq. Near the end of his presentation, he posed the most difficult question of the day: " Who is in ownership of international law? " Is it the activists who have made immense gains in bringing war crimes and international law to the public eye? Is it the military? The rhetoric of war-rules repudiation is deplorable, but Anderson wondered aloud whether advocates’ insistence on rigid international-law interpretation and enforcement might create a " Utopian fantasy " world in which international humanitarian law " becomes irrelevant as it becomes purified. "