The Geneva Convention does not apply…

According to Reuters, US Secretary of War Defense Donald Rumsfeld, appearing on CBS news, was shown Al-Jazeera video footage of captured and killed US troops.

“That’s a violation of the Geneva Convention, those pictures you showed,” [Rumsfeld] said of the international law on treatment of prisoners of war, which he said prohibits the photographing or interrogation by media of those captured in battle.

To its credit, Reuters followed Rumsfeld’s statement with a further paragraph, stating:

Pictures of Iraqi soldiers surrendering to U.S.-led forces in the last few days have been featured prominently on U.S. television and in newspapers.

Although the Geneva Conventions do not explicitly mention “photographing or interrogation by media,” they do protect POWs “against acts of violence or intimidation and against insults and public curiosity.” I am not familiar with the body of international precedent related to treatment of POWs, but the International Committee of the Red Cross does seem to consider the Iraqis to be violating the rights of prisoners. (The spokesperson very carefully avoids making an absolute determination that the footage does violate the convention, despite the certainty of the article’s headline.)

Of course, Mr. Rumsfeld should be very careful in citing the Geneva Conventions. The US may be in direct violation of those conventions in holding 650 suspected Taliban and Al Qaeda members at its Guantanamo Bay facility for the past 14 months. The US, despite the requests of the Red Cross, Human Rights Watch and other international organizations maintains that the Camp Delta prisoners are not POWs, but “enemy combatants,” and therefore, not subject to the provisions of the Geneva Conventions.

The recent decision by the US Circuit Court of Appeals for the DC Circuit in Al Odah v. United States skirts the issue of Geneva Convention violations by claiming that “…Cuba – not the United States – has sovereignty over Guantanamo Bay.” (I’m not making this up! Despite warships, fences, armed guards and 45 years of embargo, we’re claiming that Cuba is the sovereign authority.) By avoiding any claim of jurisdiction, the Circuit Court has put the prisoners beyond the pale of any laws. The US claims

the detainees are not Prisoners of War and are, therefore, not subject to the Geneva Convention,
they are not on US soil and are not entitled to the protections of US law,
they are being detained on “the field of battle”, because, as Judge Randolph claims in his concurring opinion in Al Odah, the “historical meaning of ‘in the field’ was not restricted to the field of battle”, but also applies to camps maintained at a safe location,
the US is not obligated to return them to their countries of origin because the hostilities are not yet over, and
even if the hostilities were over, these prisoners pose a security threat to the United States and would not be released.

Even in his most ironic, satiric moment, Joseph Heller never dreamed of a “catch” like this one. They’ve been cast into a legal black hole and the US would be very happy if the rest of the world forgot about the detainees.

Of course, there is a solution to the detainee problem, which could be justified by all of my government’s tortuously convoluted bending of the law. See, it goes like this: Back in November of 2002, the US assasinated a key Al Qaeda operative in Yemen, using an unmanned drone aircraft to deliver a Hellfire missile. Despite President Reagan’s Executive Order 12333 which orders “[N]o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination,” the administration was not concerned that it had violated this ban. As Professor Jeffrey Addicott of St. Mary’s University School of Law explains,

Since we are at war with al-Qa’eda, any legal analyis of the use of violence against that enemy turns on how violence is employed. In short, the United States must exercise violence lawfully in accordance with the rules associated with the law of armed conflict. The law of armed conflict describes lawful targets which can be destroyed in the proper context of combat operations. An enemy combatant – whether part of an organized military or a civilian who undertakes military activities – is a legitimate target at all times and may be lawfully killed, even if by surprise.

So, the detainees at Guantanamo have been captured on the field of battle (the field of battle being defined as “wherever they are found”), are now in military custody on soil that is not part of the sovereign territory of the US. By that definition, they are “legitimate targets” and may be lawfully killed. Easy, ain’t it?

Lucky thing the Iraqis don’t have such good lawyers who can justify killing POWs. They’ll probably just hold our captured servicemen in keeping with the Geneva Convention.