Friday, June 03, 2005

What the Geneva Conventions actually say

Amid all the breathless hyperbole over the Gulag of the Greater Antilles, I haven't seen any mainstream media source make any use of the text of the Geneva Conventions relative to the Bush Administration's claim that the detainees in Guantanamo do not qualify as "prisoners of war." Let's have a look at Article 4A of the third Geneva Convention, which defines who is and who is not a prisoner of war:

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, fulfil 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.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
(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.

Unfortunately, the writers of the convention managed to make Article 4 practically meaningless through inconsistency and overlapping provisions. However, the four provisos attached to Section 2 offer some insight into the intention of "framers" of the conventions. A member of a "militia" or "resistance movement" must satisfy all four to qualify as a prisoner of war under Section 2. The first proviso--that they have a command structure--is true of the Bloods and the Crips, the Washington Redskins, and just about every other group on earth except my own family. The second is more significant: "that of having a fixed distinctive sign recognizable at a distance." Why is this so important? So armies can better avoid killing civilians, and on this point the Taliban, their supporters, and Michael Moore's Iraqi "freedom fighters" fail miserably. If fact, they deliberately hide their identity as militias. The third proviso hardly matters in Afghanistan or Iraq, since just about everyone over the age of twelve carries a Kalashnikov. And the last, that they conduct their operations "in accordance with the laws and customs of war," knocks the Gitmo prisoner-of-war argument flat. The actions of the Taliban and the Iraqi insurgents couldn't be farther from accordance. Try reading Article 3 of the third Geneva Convention with Nick Berg in mind. Amnesty International itself condemned the "armed group, Muntada al-Ansar" for Berg's murder, calling it a "war crime" and "a serious crime under international law." As long as Muntada al-Ansar fails to arrest and turn over for prosecution its errant "soldiers," doesn't this disqualify them from claiming POW status?

Section 6 of Article 4 offers another loophole that the ACLU might attempt to exploit, but again, it requires that "inhabitants" who "spontaneously take up arms to resist the invading forces" respect the laws and customs of war. Sorry, Zarqawi, POW status is for soldiers, and you're a terrorist.


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