INTRODUCTION

Amidst the focus on the way in which Bush administration legal advisors defined the crime of torture, a fundamentally radical “doctrine” of law has slipped through almost unnoticed. This essay points to a startling and exceptionally dangerous concoction – the “failed state doctrine” – invoked in Bush Administration legal memoranda.

To be blunt, the failed state doctrine is a fabrication. There is no historical precedent. As much as I am troubled by the definition of torture in the memoranda, the failed state doctrine in my view is more troubling in that it provided the basis for concluding the international humanitarian law of the four 1949 Geneva Conventions did not apply at all to Afghanistan.

International humanitarian law is concerned with the humane treatment of soldiers and civilians during armed conflict. As treaties, the four 1949 Geneva Conventions both codified and progressively developed international humanitarian law and are the core, although by no means all, of international humanitarian law today. The United States was one of the primary drafters of the four 1949 Geneva Conventions. The Geneva Conventions are open for ratification by all nations. States that join the treaties are called “High Contracting Parties.”

On January 9, 2002, the Office of the Solicitor General in the Department of Justice sent a Memorandum, stamped “Draft,” to William Haynes, the General Counsel for the Department of Defense.