A reader over at Oxblog recently sent in a report describing the situation on the ground in Afghanistan. It’s an interesting read, if you haven’t seen it yet. But one line in particular caught my eye:

The Bush administration’s contempt for the Geneva Conventions should be a source of shame to Americans everywhere, but it does not endanger the reconstruction of Afghanistan.

The idea that the Bush administration’s treatment of captured terrorists violates the Geneva Conventions is a common enough sentiment. But I maintain that it just isn’t true, at least not necessarily, and at least not with respect to captured Al Qaeda agents. I believe that, legally speaking, captured Al Qaeda agents have no rights under the Geneva Conventions for the Bush administration to violate.

This will be very, very long (it’s mostly taken from some thinking I did in the run-up to the Padilla case), so there’s more behind the cut:

The received wisdom is that under the Geneva Conventions, individuals captured during the course of an international armed conflict may fall into one of two discreet categories. Either they are lawful combatants, such as members of the armed forces of a state, possessing a legal right to take part in hostilities and qualifying for mandatory prisoner of war (POW) status under the Third Geneva Convention, or alternatively they are “civilians” meriting protection under the Fourth Geneva Convention. In the event that the status of a particular prisoner is unclear, the Geneva III defines the procedure for classifying that prisoner.

The idea that these two classifications are comprehensive, and that all captured combatants must be either POW’s or civilians, has been advocated by groups as influential as the International Committee of the Red Cross and the International Criminal Tribunal for the Former Yugoslavia. However, the Geneva Conventions, like international law in general, are not without gaps and ambiguities. The Bush Administration has therefore argued that many of the detained Al Qaeda operatives fall into a third category of captured individuals, “unlawful combatants”, who are covered by neither the third nor the fourth Geneva Convention. If the Al Qaeda detainees are, in fact, unlawful combatants, then they have no legal rights under the Geneva Conventions (which is not to say that they have no legal rights at all, but I’m restricting myself to the more limited claim that the Bush Administration has willfully and flagrantly violated Geneva).

So the first question you have to answer is, are the captured Al Qaeda detainees POW’s under Geneva III?

In order to qualify as Prisoners of War, the Al Qaeda detainees must fall into one of the three relevant categories outlined in Article 4(A) of the Third Geneva Convention. Article 4 describes six types of individuals eligible for POW status, three of which are potentially relevant to the Al Qaeda prisoners.

First, members of the “armed forces of a party to the conflict”, as well as “members of militias or volunteer corps forming a part of such armed forces”, are POW’s under Article 4(A)(1). This provision applies to the official armed forces of a nation that is a signatory to the convention, and in this case it might apply to the armed forces of the United States and Afghanistan (or perhaps Iraq, if that’s where the current crop of prisoners are coming from).

Second, members of “other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict” are POW’s under Article 4(A)(2). However, in order to qualify as POW’s under Article 4(A)(2), members of these unofficial forces must meet the following criteria as a group: (1) commanded by a person responsible for his subordinates, (2) have a fixed insignia recognizable at a distance, (3) carry weapons openly and (critically, for our purposes) (4) conduct operations in accordance with the laws of war. This clause was intended to cover “partisans” who, during World War Two, spontaneously organized to take part in hostilities despite the fact that their parent national group was no longer considered a belligerent by the occupying power. These partisans were denied the status of combatants and were subjected to repressive measures, in part because the international law then in existence was completely unprepared for this situation.

Third and finally, “members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining power” qualify for POW protection under Article 4(A)(3). According to the International Committee of the Red Cross, this short, “catch-all” provision includes all persons who do not fall within 4(A)(1) or 4(A)(2).

Since the United States is conducting a “War” on Terror, some have argued that all Al Qaeda operatives might therefore be deemed the official armed forces of a “party to the conflict” within the meaning of Article 4(A)(1). Since the Geneva Conventions are intended to protect fundamental international humanitarian norms by imposing restraint on wartime conduct, and since both Al Qaeda and the United States have effectively recognized a state of war with each other , this interpretation is plausibly within the “spirit” of the Geneva Conventions. However, under Article 2, the term “Party” in Article 4(A)(1) is generally thought to include only High Contracting Parties to the Convention. As a non-state actor, Al Qaeda therefore cannot be a party to the Geneva Conventions under a literal reading of Article 4(A)(1). (The question of whether individual Al Qaeda prisoners can be POW’s by virtue of their national government, say Afghanistan, being a High Contracting Party, will be addressed in a moment).

Can the Al Qaeda detainees qualify for POW treatment as members of “other militias” under Article 4(A)(2)? Facially, it would appear that Al Qaeda does not qualify for POW status under this article. Article 4(A)(2) was intended to cover the sort of guerilla resistance movements that fought for the Allies during World War 2. As such, there is no requirement that these POW’s be members of an “official” armed force of a particular state. However, Article 4(A)(2) does outline four requirements of international law which a group must meet before it’s members can qualify for POW status. Whatever the status of Al Qaeda with respect to the first three requirements of 4(A)(2) might be, it does seem clear that, by deliberately targeting civilians, Al Qaeda has violated the laws and customs of war. Members of Al Qaeda therefore do not merit POW treatment under Article 4(A)(2). (Similarly, a small number of commentators have argued that the Al Qaeda detainees might qualify for POW status under Article 4(A)(6), which is intended to protect civilians who spontaneously take up arms to defend their homes. However, Article 4(A)(6) also requires that these spontaneous forces respect the laws and customs of war, and Al Qaeda therefore cannot claim POW protection under this provision).

Finally, can the Al Qaeda detainees qualify for POW protection under Article 4(A)(3)? This short provision simply provides that members of armed forces who “profess allegiance to a government or an authority not recognized by the Detaining Power” are protected as POW’s. Interestingly, the use of the word “authority” in addition to the word “government” indicates that non-state actors such as Al Qaeda should be covered by the Convention. Further, according to the ICRC commentary, this “catch all” provision is intended to cover all combatants who do not fall within the protection of 4(A)(1) or 4(A)(2). Thus a strong argument could be made that this provision provides even Al Qaeda fighters with POW treatment. However, such an interpretation would conflict with the long-standing assumption under international law that being a “combatant” requires that you fight on behalf of a party that respects and is bound by international law. Since under the laws of war combatants “may not attack civilians or disarmed persons”, by targeting civilians Al Qaeda clearly shows that it is not willing to be bound by international law. Therefore, under a traditional analysis, it would appear that the Al Qaeda detainees would not qualify for POW protection under any of the relevant provisions of the Third Geneva Convention.

By deliberately striking at foreign civilians and then hiding among the civilian populations of many different nations, Al Qaeda violates the very heart of the laws of war. Rather than choosing to conduct warfare openly and in such a way as to minimize the human cost of the war, they attempt to maximize civilian causalities. As a group, therefore, they do not merit POW protection under Article 4(A)(2) of the Third Convention.

Even if the Al Qaeda detainees are not ultimately protectable as POW’s under the Third Geneva Convention, they may still be eligible for protection as “civilians” under the Fourth Geneva Convention. While it is certainly counterintuitive to label the Al Qaeda terrorists “civilians”, some proponents of international law argue that there is no category of captured combatant that is completely outside the realm of international law. Indeed, a powerful argument can be made that if the Al Qaeda detainees are not POW’s then they are, in fact, covered by Geneva IV.

Article 4 of the Fourth Geneva Convention states that “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”. The ICRC commentary on this section of the Fourth Convention reads: “Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. ‘ There is no ‘ intermediate status; nobody in enemy hands can be outside the law. We feel that that is a satisfactory solution — not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.” Moreover, after defining “civilians” as anyone who finds themselves in the hands of a party to the conflict, Article 4 specifically carves out POW’s covered by Geneva III and medical personnel covered by Geneva I. The construction of Article 4 therefore indicates that all detainees unprotected by the other Geneva Conventions must be provided protection consistent with Geneva IV.

The legislative history of the Fourth Convention confirms that this was the intended interpretation. One of the initial drafts of the Fourth Geneva Convention defined the scope of protection in terms of “persons who take no active part in hostilities”. However, the Seventeenth International Red Cross Conference rejected this language on the grounds that it didn’t “cover those who commit hostile acts whilst not being regular combatants, such as saboteurs and franc-tireurs”. On this advice, the Diplomatic Conference adopted the more inclusive language currently embodied in Article 4. The drafters of the convention therefore clearly contemplated that some individuals who took part in hostile activities would be classified as “civilians”.

Nevertheless, the scope of persons protected under Geneva IV is not unlimited. Article 4 also states that “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.” In denying protection in this way, Geneva IV incorporates the Westphalian system of state sovereignty and attempts to impose reciprocity on states that have refused to abide by international law. Thus, even if a liberal reading of this article treated Al Qaeda as a “state” for these purposes, in a flexible attempt to adapt the principles of international law to the war on terror, then the Al Qaeda detainees would still be ineligible for protection under Geneva IV because it is clear that Al Qaeda has itself chosen not to be bound by the Geneva Conventions.

Therefore, the reading of Geneva IV that provides the greatest protection to those detainees determined not to warrant POW protection would require an individual evaluation of each detainee, providing protection as a “civilian” only where the detainee was a member of a state which is bound by the Conventions. The question of whether this is the best possible reading of the Conventions will be addressed in a moment.

The point for now is that, contrary to the intentions stated in the ICRC commentary, a literal reading of the text of the Geneva Conventions will at least theoretically result in some combatants that, by virtue of their violations of international law, “fall through the cracks” between Geneva III and Geneva IV, resulting in no protection under these conventions.

If we’re considering classifying some Al Qaeda terrorists as civilians, then it is important to note that the Fourth Geneva Convention grants a level of protection to civilians that is somewhat greater than the protection provided to POW’s under the Third Geneva Convention. It is therefore perhaps fortunate that the Fourth Geneva Convention also provides additional restrictions on these rights to accommodate military or state security. For example, a “civilian” who is “definitely suspected of or engaged in activity hostile to the security of the State” may be refused any rights normally guaranteed under Geneva IV where the exercise of said rights would be “prejudicial to the security of [the] State”. Similarly, if it is suspected that the Al Qaeda detainees could use their attorneys or private communication rights to compromise military or state security, such rights could be withdrawn from civilians under Article 5. So even if the Al Qaeda terrorists are protected by the Geneva Conventions, it’s clear that their legal rights are not as extensive as some people would have you believe.

Even so, because Geneva IV was drafted prior to the emergence of modern terrorism, it is somewhat ill equipped to deal with the fight against and detainment of terrorist combatants. For example, Article 27 of the Fourth Geneva Convention prohibits “all acts of violence or threats thereof” against persons covered by Geneva IV, whether or not they are held in custody. If read literally, Article 27 might actually forbid lawful combatants (such as the United States) from conducting military actions against unlawful combatants who qualify for protection under the Convention. (Others have attempted to counter this interpretation by pointing out that Article 51(3) of the Protocol I Additional to the Geneva Conventions confirms that unlawful combatants may be attacked while they unlawfully participate in hostilities. However, Protocol I has not been ratified by the United States and is not nearly as widely accepted as the Geneva Conventions). This is just one aspect of the perversity of the ICRC’s interpretation of Geneva: providing the Al Qaeda detainees with protection as civilians rewards them with the overall higher level of legal protection provided to civilians precisely because they committed war crimes, and thereby lost the lower level of POW protection. I”m not sure that’s the incentive we want to create.

In any event, if some of the Al Qaeda detainees are determined to qualify for protection as “civilians” under Geneva IV, it will be necessary to interpret the text of the Convention somewhat flexibly. To quote Chief Justice Barak of the Israeli Supreme Court: “We doubt whether the drafters of the provisions of… the Fourth Geneva Convention anticipated protected persons who collaborated with terrorists and ‘living bombs.’ This new reality requires a dynamic interpretive approach to the provisions of… the Fourth Geneva Convention, so that it can deal with the new reality.”

Which brings into stark relief the chief challenge in interpreting the Geneva Conventions: If the Al Qaeda fighters are not POW’s, then are they civilians by virtue of the fact that they come from nations which are signatories to the Geneva Conventions? And as previously discussed, a literal reading of the treaties would indicate that the Al Qaeda fighters are indeed civilians, and are entitled to protection as such, provided that they are citizens of a High Contracting Party, which they almost always are.

However, such an interpretation is arguably overly literal. The old Westphalian system of state sovereignty is ill-equipped to deal with the challenges of modern terrorism. The Fourth Convention assumes that civilian belligerents will be accountable to their respective nation states, and therefore only extends protection if the parent nation is bound by the convention. But these fighters are probably more closely affiliated with and accountable to Al Qaeda than they are to their parent nations. Therefore, the principle that works to refuse protection under the Fourth Convention to nationals of a state which is not bound by the Conventions should arguably work to refuse protection to the members of Al Qaeda.

On the other hand, this interpretation, while flexible in adapting some of the principles of the Fourth Convention to modern terrorism, would undermine one of the fundamental principles of the Geneva Conventions as a whole; namely, that no detained individual is entirely free from basic protection under the Geneva Conventions. The recognition of a category of “unlawful combatants” would undermine the progress of international humanitarian law and provide states with an easy excuse to skirt its protections.

In conclusion, therefore, the Al Qaeda detainees place the principle of reciprocity under international law in tension with the principle of universality under international law. The international community must decide whether it sees international humanitarian law as universal, comprehensive and binding upon all detained individuals, absolutely regardless of their reciprocal commitment to the laws of war, or alternatively whether the laws of war will provide protection only to those groups which choose voluntarily to adopt its principles. Complicating this analysis is the question of the legitimate status of non-state actors, such as Al Qaeda, which operate internationally and with a level of military force and sophistication that was previously reserved only for the official armed forces of a state.

If the international community sees international humanitarian law as comprehensive and Al Qaeda as a legitimate “party to the conflict”, then the Al Qaeda detainees fit best with the spirit of the Third Geneva Convention. If, however, the international community sees international humanitarian law as comprehensive but remains committed to the rigid application of the Westphalian system, then the Al Qaeda detainees are best classified through the flexible application of the Fourth Convention. Alternatively, if the international community emphasizes the importance of reciprocity over the comprehensive nature of international law, then the Al Qaeda detainees are unprivileged “unlawful combatants”, either as a group (if Al Qaeda is seen as a legitimate “party to the conflict”) or individually (if the Westphalian system is emphasized).

The majority interpretation of the international community, including the International Committee of the Red Cross and the International Criminal Tribunal for the Former Yugoslavia, is that the Third and Fourth Geneva Conventions are jointly comprehensive. All individuals detained during international armed conflict fall within one of those two Conventions, and no individual is wholly unprotected by this regime. This is the best legal interpretation of international law, and it is certainly the interpretation that best advances the development of international law as a binding source of law. However, a persuasive case can be made that, taken together, the protections provided by international human rights law, the policy of reciprocity used to enforce international humanitarian law, and the legitimate security concerns of the United States permit the classification of the Al Qaeda detainees as unprivileged, unlawful combatants under the Geneva Conventions. This is a fair reading of the principles and text of international law and it is certainly responsive to the security needs of states confronting modern terrorism.

In my view, then, the policy of reciprocity is central to the ultimate enforcement of the international humanitarian regime. Incentives matter, particularly over time, and though Al Qaeda will certainly not alter it’s behavior in response to our legal classification of their prisoners, other nations might. Because international law lacks an enforcement mechanism, the only way it can possibly be meaningful is if the actors (defined without rigid resort to Westphalia) which refuse to be bound by international law’s humanitarian norms are thereby excluded from it’s protections. Therefore, in my view, the Al Qaeda fighters are unlawful combatants that (under the established principles of international law) have no rights under the Geneva Conventions. The United States is obligated only to provide the Al Qaeda detainees with the minimal rights guaranteed to them under customary international human rights law.

Modern terrorism undermines the traditional legal distinction between combatants and civilians, and as such poses a significant challenge for existing international law. Non-state combatants will likely become an inevitable part of modern armed conflict, but they currently have no clear place within the structure of international law. It is my argument that the Al Qaeda terrorists may be “unlawful combatants” possessing no rights under the Geneva Conventions. Nevertheless, States which engage in the War on Terror (including the United States) must remain mindful of their obligation to establish and apply the separate and independent rights granted to prisoners by international humanitarian and human rights law.