Why the Geneva Conventions do protect unlawful combatants.

[Vattel]

What follows is a rather dry explanation of why unlawful combatants in Afghanistan are protected by the Geneva Conventions, and the nature of some of those protections. Get a cup of coffee before reading.

The grain of truth in the Bush Administration’s claim that unlawful combatants in Afghanistan are not protected is to be found in the fact that combatants who violate the laws of war do not qualify for POW status under the Third Geneva Convention. Article 4 of that Convention says in part:

"A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
. . ."

So Bush et al. were correct that those combatants in Afghanistan who, for example, do not carry their arms openly, or who violate the laws and customs of war, do not qualify for POW status under the Geneva Conventions. However, Bush et al. were incorrect to infer that the Geneva Conventions do not protect detainees apprehended in Afghanistan against the sort of inhumane treatment that Bush authorized. Both Common Article 3 (so-called because it is common to both the Third and Fourth Geneva Conventions), which SCOTUS has said applied to the conflict in Afghanistan (Hamdan v. Rumsfeld), as well as various articles in the Fourth Geneva Convention, do extend protection to detainees who do not qualify for POW status. And that protection does include protection against inhumane treatment of any kind. Article 3 says in part:

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. . . ."

It is crazy to interpret this as applying only to members of regular armed forces, for it is also the third article of the Fourth Geneva Convention which is primarily aimed at protecting civilians. Anyone not actively engaged in hostilities is protected, even those who were previously engaged in combat. It is quite clear, then, that Bush denied unlawful combatants in Afghanistan the article 3 protections to which they were entitled. He authorized inhumane treatment, humiliating treatment, and degrading treatment.

Unlawful combatants are also protected by the Fourth Geneva Convention. With minor qualifications the Fourth Convention protects anyone “who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” (Article 4) For obvious security reasons some of its protections are limited in the case of those definitely suspected of being spies or saboteurs. But notice that spies and saboteurs are explicitly protected even though they do not carry their arms openly and so are “unlawful combatants” in the Bush’s sense of the word. Again the protections demand that in all cases the spy or saboteur be “treated with humanity:”

"Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with security of State or Occupying Power as case may be."

At least one DUer has advanced the common theory that unlawful combatants in Afghanistan are protected by the Geneva Conventions only because they qualify as civilians under the Fourth Convention. I am inclined to disagree for two reasons: (1) Common Article 3, which does not apply only to civilians, protects unlawful combatants in Afghanistan. (2) The Fourth Convention does not protect only civilians. As mentioned above spies and saboteurs are explicitly protected by the Fourth Geneva Convention even though they are not typically civilians. (Often they are members of a nation’s regular armed forces. They “feign civilian status” and hence cannot possibly be civilians, but they are explicitly protected anyway.) Although primarily aimed at protecting civilians, the Fourth Convention clearly includes protections that apply to military personnel as well as civilians. (Another example: Article 15 protects “wounded or sick combatants or noncombatants.” There is no indication that only civilian combatants are protected.)

[Vattel]

1. If you drink two cups of coffee before reading it,

you might even recommend it (or not).

[aikoaiko]

2. Happy to K&R

thank you.