Important Distinction

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Jonathan Gurwitz has a piece in the San Antonio Express News that points out the fallacy of extending full Geneva Convention protections to illegal combatants. That actually undermines the Conventions and renders them increasingly meaningless.

That doesn't mean, however, that armed combatants captured on foreign battlefields should be Mirandized or that they are entitled to the constitutional protections of American citizens. And all the feel-good talk about America doing the right thing obscures a fundamental misinterpretation of international law that serves the interests of terrorists and their state sponsors while undermining respect for the Geneva Conventions.

Critics of Bush administration policy are adamant about extending prisoner of war rights under the Third Geneva Convention to terrorist detainees. In doing so, they obscure a clear distinction in the Geneva Conventions between lawful and unlawful combatants.

The former must be under responsible command, have identifiable uniforms, carry their arms openly and conduct their operations in accordance with the laws of war, including the requirement to limit civilian casualties. The latter are just about everyone else under arms, including members of al-Qaida and its affiliates.

The international community's enforcement of Geneva Convention standards creates an incentive for decent conduct during war. As prisoners of war, lawful combatants hold a privileged status. In matters of justice, they are entitled to a high level of procedural protection. Unlawful combatants should not receive the same protections.

Countries sign and, importantly, observe the Geneva Conventions in the hope that their men and women in uniform taken prisoner will be accorded the same privileged status they afford to prisoners of war. But extend the privileged status of lawful combatants to unlawful combatants, as the Supreme Court did in its Hamdan vs. Rumsfeld ruling, and the incentive to observe the laws of war disappears while the principle of reciprocity is rendered meaningless.

I have said for a while now that the conventions need to be revisited to take into account the changes that terrorism bring to the meaning of the accords. One thing I think is pretty clear. In 1949 there would have been pretty much universal support for summary execution of illegal combatants. The world had just gone through a major war and understood good from evil a bit better then. Things have changed as people forget.

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2 Responses to Important Distinction

  1. Black Jack says:

    “The world had just gone through a major war and understood good from evil a bit better then.”

    Failure to learn from history has well known consequences. If current Geneva protections are extended to unlawful combatants, it is lawful combatants who will suffer.

    The Supreme Court’s wrongheaded decision makes it impossible to distinguish between those who have fought honorably, those who have put themselves at risk to prevent civilian casualties, from and those who have intentionally killed civilians.

    The Hamdan majority isn’t qualified to judge a pie eating contest.

  2. BubbaB says:

    I don’t know if I can really put this into words, but here goes:

    This is in reference to LEGAL combatants, who are members of a specific nation’s military forces.

    The Geneva Conventions are adhered to pretty much voluntarily by countries in battle. As a pretty good rule-of-thumb, a country who voluntarily adheres to the Geneva Conventions is going to be a democracy. Democracies do not enter into war lightly.

    The chances that two democracies will go to war against each other is almost zero. Therefore, the most likely scenario is that two nations who have chosen to go to war are either both dictatorships or one is a dictatorship and the other is a democracy.

    In the modern era, a dictatorship is the least likely to adhere to ANY international treaties or conventions. Therefore, as a rule, in ANY war between two countries, at least one side will ignore or half-heartedly follow the Geneva Conventions.

    Therefore, the Geneva Conventions have become irrelevant. If we go to war, we can be sure that whoever we are fighting will NOT follow the rules, regardless of how well we follow them. (Examples: Every war we have fought since World War II – the enemy rarely treated our prisoners nicely. The Bataan Death March, the Hanoi Hilton, etc.)

    I believe strongly that the United States should still attempt to give Geneva Convention protections to legal combatants, regardless of how irrelevant the Conventions are. However, I like your idea, Gaius: If they are illegal combatants on the field of battle, they should be strung up.

    —BubbaB

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