The International Committee of the Red Cross (ICRC) is an impressive edifice--both physically and morally. Its Swiss headquarters, once a Belle Epoch luxury hotel, is perched on a commanding height overlooking Lake Geneva. Just below is the Palais des Nations, formerly home to President Woodrow Wilson's ill-fated League, and now occupied by the United Nations. The whole area exudes a comfortable, faded-paint kind of civility--complete with peacocks roaming free on the UN lawns below. It is, of course, home to the world's oldest non-religious organization dedicated to humanitarian relief--an organization with a unique place in international law, identified by the four 1949 Geneva Conventions as an "impartial humanitarian body."

It is in this ostensible role that the ICRC has clashed with the Bush Administration. Early in 2002, President Bush determined that captured Al-Qaeda and Taliban members were not legally entitled to be treated as "prisoners of war" (POWs) under the Geneva Conventions, which reserve the multifarious rights and privileges of POWs for groups that meet the basic criteria of "lawful" belligerency. Those requirements were drawn from earlier international practice and agreements, and include subordination to a responsible command structure, wearing uniforms, carrying arms openly, and operating in accord with the other laws and customs of war. These are the elements that distinguish regular armies from irregular or guerrilla fighters, not to mention terrorists.

Neither Al-Qaeda nor the Taliban meets these minimum requirements and, as a result, the president concluded that those groups were "unlawful" or "unprivileged" enemy combatants. Such individuals are entitled to be treated humanely. However, they are also subject to prosecution in military courts and may simply be held, without a criminal trial, until the war is over--even if that takes years. Wars sometimes do.

The ICRC disagrees. In a series of more or less direct statements issued over the past two years, the group has decried the detention of Al-Qaeda and Taliban members at the Guantanamo Bay naval base in Cuba, suggesting that they must be treated as POWs under the Geneva Conventions, or as civilians entitled to a speedy trial in civilian courts. The ICRC also has accused the United States of intentionally using psychological and sometimes physical coercion "tantamount to torture" on the detainees. The basis of this claim appears to be both the "indefinite" detention of captured Al-Qaeda and Taliban members, as well as the use of "stress" interrogations, including "solitary confinement, temperature extremes, use of forced positions."

It is important to understand what the ICRC is actually saying. It is not simply arguing that the type of criminal sexual conduct that took place at Abu Ghraib was abusive, as it surely was. Nor is it claiming that detainees are being subjected to the types of actual torture--such as extensive and brutal beatings--suffered by American POWs during the Korean, Vietnam, and Gulf wars, which it effectively ignored. Rather, the ICRC is suggesting that simply holding captured Al-Qaeda and Taliban members without trial and devising an interrogation regimen designed to "break their wills"--without actually subjecting them to torture--itself violates international law and is indeed "tantamount to torture."

The United States has, of course, denied that its detention and interrogation policies constitute "torture" or equally forbidden cruel, inhuman or degrading treatment. Under the law actually applicable to American actions, the government is correct. The problem is that the ICRC fundamentally disputes the legal rules applicable to the United States, demanding--whether directly or indirectly--that the U.S. government comply with legal norms it has not approved and to which it is not bound. In this, the ICRC is acting not as an impartial interlocutor or advisor, but as an advocate--seeking to achieve recognition and implementation of a particular set of legal norms of which, as a policy matter, it approves.

There is nothing inherently wrong with such advocacy. It is the bread and butter of NGOs such as Human Rights Watch and Amnesty International. The ICRC, however, is supposed to be different. Human Rights Watch and Amnesty International make no pretense of impartiality and do not receive millions of American tax dollars each year, as does the ICRC. By claiming that American policy "violates" international law, knowing full well that the United States disputes this interpretation, the ICRC has gone far beyond its mandate and has abused its unique international position. As a result, the United States can, and should, reassess its relationship with the ICRC. Indeed, that reassessment is long overdue.

Amici Humani Generis?

There is much mythology surrounding the ICRC, especially in the United States. First, the ICRC is often confused with the American Red Cross and wrongly credited with that organization's blood drives, disaster-relief activities and life-saving training courses. The American Red Cross is only loosely associated with the ICRC, as part of the "Red Cross Movement." It is in fact an independent charity organized, operated and controlled by Americans in the United States.

By contrast, the ICRC is organized under the Swiss Associations Law. It began as the inspiration of Henri Dunant, a businessman from Geneva who witnessed the terrible aftermath of the 1859 Battle of Solferino. Dunant was horrified by the primitive medical services for the wounded and published his thoughts in 1862 in A Memory of Solferino. A year later, the book prompted a five-man committee in Geneva, including Dunant, to establish the organization that became the ICRC. In 1864 the Swiss government convened a diplomatic conference that produced the first "Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field"--a document in which the red cross emblem was first recognized as a mark of neutrality.

Over the next eighty years, the ICRC worked to alleviate the suffering of the wounded on the battlefield. It extended its activities to POWs during World War I, when it began to visit and report on conditions in detention camps and to keep track of individual prisoners. In the 1920s the ICRC was instrumental in bringing together a diplomatic conference that produced the 1929 Geneva Convention detailing the treatment to be accorded to POWs. It was largely on the basis of this treaty that the ICRC conducted its relief operations during the Second World War.

Most of this took place with little relation to a United States determined to avoid entanglements in Europe. However, although the ICRC continues to claim pride of place for the 1864 Geneva Convention in the establishment of humanitarian rules in war, Abraham Lincoln actually commissioned the first written code governing the conduct of armed hostilities in 1863. That document, "General Order No. 100, Instructions for the Government of Armies of the United States in the Field", informally known as the "Lieber Code", was adopted as the basis of the laws of war at the 1907 Hague Convention, which remain in effect today.

The United States' first long-term experience with the ICRC as an interlocutor came during the Second World War. Between 1941 and 1945, the ICRC provided invaluable services to the United States by transmitting supply packages to POWs held in Germany. Unfortunately, the ICRC has been living on that capital now for three generations.

American forces have been engaged in five major armed conflicts since 1945: Korea, Vietnam, the Gulf War and the current conflicts in Afghanistan and Iraq. At no time in any of these wars have our adversaries accorded captured Americans the legal rights of POWs under the 1929 Geneva Convention, the 1949 Geneva Convention or customary international law. Moreover, during this entire period, the ICRC's contribution to the welfare of captured Americans was negligible.

Of the 7,245 Americans taken prisoner in Korea, 2,847--more than a third--died in captivity. Nearly 400 known to be alive at the war's end were never repatriated to the United States. In Vietnam, some 766 Americans were taken prisoner, and 114 died in captivity. At the war's end, nearly 1,300 Americans were listed as missing in action. Throughout the conflict, American POWs were treated with unspeakable brutality--even though the United States determined in 1966 to accord POW status to captured Viet Cong, regardless of whether they legally merited that treatment. In response to this decision, the ICRC delegate in South Vietnam waxed poetic, noting that for the first time: "A government goes far beyond the requirements of the Geneva Convention in an official instruction to its armed forces. The dreams of today are the realities of tomorrow." Unfortunately for American soldiers, that reality never materialized. Despite the adherence of the United States to the Geneva Conventions and its extension of Geneva benefits to unlawful Viet Cong combatants, there was no reciprocity. Moreover, the ICRC itself made no discernable effort on behalf of American POWs. The ICRC's Central Tracing Agency contains numerous U.S. government requests for information relative to individual POWs in North Vietnam that were not acted upon.

The situation was little better in 1990-91 during the Gulf War. Although Iraq was clearly bound both by the Geneva Conventions and customary international law, American prisoners were beaten, and at least one was murdered, in Saddam's prisons. Today, our enemies in Afghanistan, Iraq and elsewhere in the War on Terror do not take prisoners. Most of those Americans, whether military or civilian, unfortunate enough to fall into their hands have been butchered, and their murders have been broadcast on television throughout the Middle East and made available around the world on the Internet.

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