A World War Violation of the Geneva Convention
I want to thank Julian Ku and his colleagues at Opinio Juris for the invitation to blog. This is my initial effort in cyberspace.
I begin with some interesting information that I recently learned on a trip to the Chicago Museum of Science and Industry at an exhibition of a captured German submarine: the United States once decided, consciously and at the highest levels of government, to violate the Geneva Convention. The incident occurred when in 1944 our navy captured a German submarine and a version of the enigma machine—the equivalent of the German codebook. While the navy also captured the entire crew, it did not notify the Red Cross of their capture or identities. The exhibit itself states that this failure violated the Geneva Convention. Notification would have tipped the Germans off to the substantial possibility that the allies now had a means for breaking their code.
How, if at all, would this decision then differ from a decision today to violate some aspect of the Geneva Convention in order to achieve an objective as important as avoiding disclosure of capturing a code? Certainly, the violation in 1944 was clear and premeditated. It also cannot be argued that it was not certain to inflict very substantial harm. As a result, the relatives of the German seamen thought they were dead for a substantial period, and, I believe in at least one case, the wife of one of the sailors remarried. Such grief and disorientation of lives might be thought of even greater consequence than the humiliation of a few unapproved interrogation techniques. Would the decision be different because of a difference in the level of threat we now face? Who makes that determination? Should we condemn Fleet Admiral Ernest King (who made this decision) as a war criminal or honor him as a patriot?