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The White House position was pretty clearly articulated in 2003:
Today President Bush affirms our enduring commitment to the important principles of the Geneva Convention. Consistent with American values and the principles of the Geneva Convention, the United States has treated and will continue to treat all Taliban and al Qaeda detainees in Guantanamo Bay humanely and consistent with the principles of the Geneva Convention.To me it is pretty clear that despite the fact that the Taliban detainees are not eligible for Geneva Convention treatment, the US will abide by its terms anyway, even toward the al Qaeda terrorists. "They will continue to receive three appropriate meals a day, excellent medical care, clothing, shelter, showers, and the opportunity [to] worship. The International Community of the Red Cross can visit each detainee privately."
They will continue to receive three appropriate meals a day, excellent medical care, clothing, shelter, showers, and the opportunity [to] worship. The International Community of the Red Cross can visit each detainee privately.
In addition, President Bush today has decided that the Geneva Convention will apply to the Taliban detainees, but not to the al Qaeda international terrorists.
Afghanistan is a party to the Geneva Convention. Although the United States does not recognize the Taliban as a legitimate Afghani government, the President determined that the Taliban members are covered under the treaty because Afghanistan is a party to the Convention.
Under Article 4 of the Geneva Convention, however, Taliban detainees are not entitled to POW status. To qualify as POWs under Article 4, al Qaeda and Taliban detainees would have to have satisfied four conditions: They would have to be part of a military hierarchy; they would have to have worn uniforms or other distinctive signs visible at a distance; they would have to have carried arms openly; and they would have to have conducted their military operations in accordance with the laws and customs of war.
The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the al Qaeda.
Al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are not entitled to POW status under the treaty.
The war on terrorism is a war not envisaged when the Geneva Convention was signed in 1949. In this war, global terrorists transcend national boundaries and internationally target the innocent. The President has maintained the United States' commitment to the principles of the Geneva Convention, while recognizing that the Convention simply does not cover every situation in which people may be captured or detained by military forces, as we see in Afghanistan today.
He arrived at a just, principled and practical solution to a difficult issue. The President did so because, as Americans, the way we treat people is a reflection of America's values. The military operates under a code of conduct that upholds these values, based on the dignity of every individual.
Professor Arend, however, is confused:
"But what then does it really mean to say they are being treated in accordance with the Geneva Convention? Because they are not being given the full guarantees under the Convention, what law does apply to them?"Well, Dr. Arend, perhaps the answer is that no law applies to them, except such rules as we choose to make out of the goodness of our hearts. In fact, they are not POWs, they are "outlaws" as this essay by Ruth Wedgwood, professor of law at Yale Law School states in its title. Professor Wedgewood elaborated in another essay:
The Geneva convention never purported to govern every form of warfare. The rules do not, for example, cover internal civil wars. Most assuredly, they were not negotiated to govern wars against piratical groups that operate internationally.Others, like Mackubin Thomas Owens, a professor at the Naval War College share this view:
The convention's premise is that both parties to the conflict will obey the fundamental rules for lawful belligerency: that any fighting force must refrain from terrorising innocent civilians and avoid masking soldiers in civilian dress, lest an adversary target innocent civilians in response.
The test is put in four parts. Lawful combatants must have a responsible commander (to ensure accountability for violations); wear a fixed distinctive sign visible at a distance; carry their arms openly; and fight in accordance with the laws and customs of war.
These requirements apply as much to regular armies as to militia forces. It is thus fallacious to suppose that the Taliban should be allowed any exemption...
There will undoubtedly be some review of the combatants sent to Camp X-ray, to guard against human errors in their initial identification. But the critical task of fitting an older legal regime to a new mode of terrorist war is a responsibility that belongs to presidents and their advisers. (source)
The real reason the detainees are not entitled to POW status is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval European jurisprudence. As the eminent military historian, Sir Michael Howard, wrote in the October 2, 2001 edition of the Times of London, the Romans distinguished between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi — pirates, robbers, brigands, and outlaws — "the common enemies of mankind."And as detainees, they have no rights under the Geneva Convention. In fact, in my view, they're pretty lucky that "summary execution" wasn't applied.
The former, bellum, became the standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to the latter, guerra — indeed, punishment for latrunculi traditionally has been summary execution.
While not employing the term, many legal experts agree that al Qaeda fighters are latrunculi — hardly distinguishable by their actions from pirates and the like. As Robert Kogod Goldman, an American University law professor who has worked with human-rights groups told the Washington Times, "I think under any standard, the captured al Qaeda fighters simply do not meet the minimum standards set out to be considered prisoners of war."
At a recent conference in Europe, Marc Cogen, a professor of international law at Ghent University argued that "no 'terrorist organization' thus far has been deemed a combatant under the laws of armed conflict." Thus al Qaeda members "can be punished for all hostile acts, including the killing of soldiers, because they have no right to participate directly in hostilities."
The status of the Taliban is more problematic. Despite the fact that the United States did not recognize the Taliban as the legitimate government of Afghanistan, critics argue that the Taliban's effective control of Afghanistan, its military structure and functioning government rendered it a de facto state, the troops of which should be accorded POW status. They point out that a legal ruling required the United States to accord Panamanian strongman Manuel Noriega POW status despite the fact that it did not recognize his government.
But a state that harbors latrunculi would seem to forfeit its own status as a legitimate state. The close association of al Qaeda and the Taliban, especially at the higher levels, vindicates the legal position of the United States in treating both al Qaeda and Taliban fighters as detainees rather than POWs.
As for the other two "rules of international law" that Dr. Arend cites, good luck in making a case and in enforcing anything that might result. They look pretty toothless to me. But then again, I could be wrong. Just encouraging debate, you might say.
Update: Another lawyer admitted to the Texas Bar has a compelling viewpoint:
The detainees at Gitmo are there because they were captured while engaging in war against the United States. Disdaining uniforms, disdaining all the rules and conventions of "civilized" warfare, they were bearing arms for the purpose of trying to kill American and coalition soldiers. We have ample "reason to keep" those individuals for the remainder of their natural lives or until the Global War on Terror has achieved enough success that they can be released without reason to believe that they'll return to their terrorism.Maybe it's not good "international law" but it sure does make sense.
Update:2: I'm not sure if Professor Arend's blog allows it, but one way to stir debate would be to allow comments on his posts.
Update3: A lengthy but interesting law review article Al-Qaeda & Taliban unlawful combatant detainees, unlawful belligerency, and the international laws of armed conflict