343) Revisando as convenções de Genebra sobre o direito da guerra?

Editorial do influente jornal (pelo menos no establishment dos EUA que conta em termos de processo decisório) sobre os novos problemas trazidos pela luta contra o terrorismo em face das convenções existentes sobre o "direito da guerra", a maior parte formulando regras pensadas em meados do século XX para os conflitos militares das décadas passadas...
O fato inegável é que aquelas regras só obrigam um dos lados do conflito, mas as conseqüências morais de uma mudança dessas regras para o lado "observador" -- que são os Estados organizados constitucionalmente -- constituem certamente um dilema maior. Como indicado no editorial, "the U.N. has never been able to agree on a definition of 'terrorism'"...

'9/11 Changed Everything'
Twentieth-century rules will not win a 21st-century war.
BY DANIEL HENNINGER
The Wall Street Journal, Friday, April 7, 2006 12:01 a.m. EDT

Shortly after September 11, the phrase "9/11 changed everything" got popular. I thought it a useful overstatement. More than anything we needed unity, and that helped. Almost five years later, it looks like an understatement. Politics in America, the law, the conduct of war, the West and Islam, U.S. allies past and present--all changed.

But there's a difference. Normally when something changes in the physical world we can see what replaced the old. In the post-September 11 world, about all we can see is that the old templates for understanding these things are under pressure and may be broken. But in nearly each instance, the new template for how we think about them isn't clear. Should prisoners from the terror wars be moved here from Guantanamo and put under established U.S. law, or is something less than that more appropriate?

In an important speech delivered Monday in London, the British Defense Minister John Reid suggested that we consider revising the Geneva Conventions regarding conduct in war. He wants to accommodate the altered reality of modern terrorism. "I believe we need now to consider whether we--the international community in its widest sense--need to re-examine these conventions," Mr. Reid said. "If we do not, we risk continuing to fight a 21st-century conflict with 20th-century rules." The Geneva Conventions were shaped 50 years ago, Mr. Reid said, but "warfare continues to evolve, and, in its moral dimensions, we have now to cope with a deliberate regression towards barbaric terrorism by our opponents."

This summary does not do justice to Mr. Reid's speech, which was at pains to seek a balance in the tension between a West that struggled to mitigate the savagery of armed conflict and an enemy that daily dishonors those principles. He is not suggesting that we adopt the enemy's methods. He is worried that the old rules are putting the soldiers on our side at unacceptable risk. "If we act differently today from how we behaved yesterday, it is not necessarily wrong. Indeed it may be wrong not to."

Most likely, any such reconsideration would pass through the United Nations, an institution perhaps irreparably damaged by September 11. Set aside the disqualifying facts of the Oil for Food scandal; the U.N. has never been able to agree on a definition of "terrorism." That is so the worst of them can escape censure for crimes against civilian populations. Thus the legitimacy of suicide bombings as an instrument of policy remains, repulsively, an "open question." So it worsens.

Even away from the bloodlettings, our assumptions about proper protocols are under pressure. Last month the sudden death of Slobodan Milosevic collapsed his trial at the international war crimes tribunal in The Hague. Hopes ran high that the trial would produce a model for imposing an "international" standard of justice on modern war criminals such as Saddam or Liberia's Charles Taylor. Some now argue, persuasively, that the verdictless Milosevic case exposed this effort as a failure. Milosevic's trial ran for three years and produced a documentary record of 1.2 million pages. It served historians, but not justice. If we captured Osama bin Laden alive, would the Milosevic model of justice produce a trial or a Dutch-cartoon circus?

Because of the practices that Islamic fundamentalism has chosen as instruments of policy--in lower Manhattan, Madrid, London, Baghdad, Bali and for the future--a whole range of settled customs in time of war deserve more organized thought than they have so far received. Beyond the Geneva Conventions, any such list would include the debate over Guantanamo and stateless combatants, prisoner interrogation methods (is "waterboarding" torture, or not?), the fight over electronic surveillance and the Foreign Intelligence Surveillance Act, the custody status of suspected terrorists like Jose Padilla, and the fight over the provisions in the Patriot Act.

We are past the point of legal abstraction. We know the nature of the enemy's tactics, the use of loaded airplanes and the pursuit of WMD. Suicide bombings--human beings used as weapons to kill civilians--have become the portable gas chambers of terrorism. The use of improvised explosive devices (IEDs) qualifies as a weapon of mass destruction, insofar as mass media distribute the dead, dismembered victims into our living rooms morning and night, causing some to give up.

Yes, the media effect of bathing us in blood makes all of this difficult, but the response of the political class is not preordained. Nowhere is it written in stone that the Reids, Pelosis and Deans must call nearly every jot and tittle of the administration's post-9/11 policies a violation of "our values and civil liberties." Nor was it necessary for the Bush team to go first to war and then into a political bunker. A U.S. president at war may not need France, but he needs active allies in Congress. That bunkering was as inappropriate to living amid the new terror realities as has been the dominant Democratic view that the only event that "changed everything" was losing in the Supreme Court in 2000.

The public's reaction to the Dubai ports deal if nothing else revealed that the American people believe the world has indeed changed in the most fundamental way, that the war on terror is real and isn't over. It is not the public's job, however, to write the rules of a new war for Iraq, Afghanistan or the Port Authority of New York and New Jersey. That is the task of leadership. The policies of the Bush administration were a first attempt at the rewrite. The notion that those changes should simply be rolled back to the September 11 status quo ante of prior constitutional interpretation or the Geneva Conventions does not reflect contemporary reality.

The central issue raised in the speech by U.K. Defense Minister Reid involves the tension between what up to now has been illegal in war and what in the future should be illegal, if the purpose of law is to protect the innocent against barbarism. My view is that the likelihood of the U.S. or the U.K. "losing its soul" if it upgrades the rules to suppress a shame-free terrorism is about nil. Yes, September 11 changed everything, and it's time to start talking about whether the changes are helping us, or them.

Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Fridays in the Journal and on OpinionJournal.com