The Guantanamo Bay Detainees Are Not Protected by the Geneva Conventions

I recently stumbled upon the blog Terrorism News, where I read this interesting post protesting the treatment of detainees at the Guantanamo Bay Naval Base in Cuba. Even though the detainees are being treated rather well, there are still wild-eyed rumors about torture and abuse.

But aside rumors, what struck me about the post was its appeal to the provisions of the Geneva Conventions. I left a comment informing the bloggers there that the Geneva Conventions are not relevant to these detainees, which touched off a long and lively debate in the comment thread.

Here is my basic argument:

First, the Geneva Conventions do not offer protection to non-signatory states, as stated in Convention 4, Article 4:

Nationals of a State which is not bound by the Convention are not protected by it.

Al Qaeda is not a signatory member of the Geneva Conventions, therefore they do not apply.

But wait -- Al Qaeda isn't even a state! Can a stateless organization still be protected by the Geneva Conventions? Yes, provided that it obeys certain rules of civilized warfare. These are outlined in Convention 1, Article 13:

(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.
(3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.

These preconditions are restated in Convention 2, Article 4, sections 1-3. Al Qaeda does not have to be recognized as a legitimate 'authority' by the United States, nor exist as a regular army or militia, in order to be protected. As Convention 1, Article 3 states:

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Al Qaeda can be classed simply as a 'resistance movement' and fulfill the obligations of section 2 quoted above and receive protections as prisoners of war. The legal status of Al Qaeda in the eyes of the United States is not relevant (see section 3 above). Al Qaeda can agree to the provisions of the Geneva Conventions as a resistance movement. Al Qaeda has not done so, and therefore is not protected by the Geneva Conventions.

Even though we are already in the midst of this war, Al Qaeda can still agree to abide by the Conventions and receive its protections, as stated in Convention 2, Article 2:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

This requirement is restated in Convention 4, Article 2.

To my arguments, Terrorism News' bloggers DJEB and _H_ had a number of unusual responses. First, they argued that the Geneva Conventions class people in only two ways: prisoners of war and civilians. There is no such thing as an 'unlawful combatant' -- a term that never appears in the text of the Geneva Conventions. Captured terrorists are actually civilians. It is an intriguing view, but this interpretation creates a number of problems:

1. Bomb-throwing, gun-firing maniacs are defined as "civilians". Unfortunately, the Geneva Conventions never defines the term civilian, but somehow this definition seems far-fetched.

2. Fighters who fail to uphold the standards of civilized warfare outlined in Convention 1, Article 13 are entitled to greater protections as civilians than those who do uphold those standards and as a result are classed as prisoners of war. If the objective of the Geneva Conventions is to raise the standards for the conduct of warfare, then this definition cannot be true.

They further argue that Al Qaeda is a signatory party to the Geneva Conventions because Afghanistan signed the Convention in 1959. The government which signed this protocol was overthrown in 1973, and the next government was overthrown in 1978, and the next in 1979, and the next in 1992, before finally the Taliban rose to power in 1996. Five bloody revolutions separate the Taliban from the Afghan government which signed the Geneva Conventions. Is it still valid?

Sidestepping the standards for the conduct of warfare (and therefore classification of those captured as prisoners of war), _H_ insists that Al Qaeda detainees are, in fact, civilians. However, the Geneva Conventions do not permit civilians to violate certain standards for the conduct of warfare and receive protections, as stated in Convention 1, Article 13, section 6:

Inhabitants of a non-occupied territory, who on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Of course, this would only apply if Al Qaeda detainees, regardless of their national origin, or where they are captured, or even if they have ever been to Afghanistan during their lives are, in fact, "Afghan civilians".

The most persuasive argument that the pair advance is that everyone in any country is protected by the Geneva Conventions. They base this argument on a statement in Convention 4, Article 4:

Persons protected by the Convention are those 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.

It is, I admit, a very odd passage. But if their interpretation is correct, then there would be no need to differentiate between prisoners of war and civilians, or to outline standards for civilized warfare (again, Convention 1, Article 13). In fact, besides specific treatment requirements, there would be no need for the Geneva Conventions to be any longer than this statement. Their interpretation is contradicted by the very next statement in Convention 4:

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

And further stipulations immediately follow:

The provisions of Part II are, however, wider in application, as defined in Article 13.

I don't recall the name of the hermeneutical principle, but rationally, if the interpretation of a text is contradicted by the immediately surrounding text, then the interpretation is unsound.

But overall, I think that it's quite clear that the Geneva Conventions do not apply to Guantanamo Bay detainees and won't until (1) Al Qaeda agrees to abide by the provisions of the Conventions and (2) its fighters abide by the standards for the conduct of warfare. The ball is in Al Qaeda's court.

All of which is not to say that we shouldn't treat the detainees humanely. It may be the morally right thing to do. It may be the most politically expedient course of action. But it is not legally required under the Geneva Conventions.

UPDATE: Sentence added to sixth paragraph for stylistic flow.

ANOTHER UPDATE: Jeff the Baptist has thoughts on the legal status of unlawful combatants.