Politics: Detainees and the Geneva Conventions

John the Methodist is discussing the legal nature of detainees. While I agree with his interpretation, unfortunately the Supreme Court did not. I would like to bring up one of his points:

...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.

I have heard this rhetoric before and I would like to expose it's half-truthfulness. The half-truth is that the Geneva Conventions do not use the term unlawful combatant. That is true. The half-lie is that under the Geneva Conventions an individual can only fall into one of two groups, "prisoner of war" or "civilian."

The way the conventions actually work is that, out of the entire population within a warzone, it creates two protected groups. These are "prisoners of war" who are former "combatants" and "civilians" who were not "combatants." These groups are mutually exclusive, so you can't be in both. However it doesn't divide the population into one of those two groups. They are not all-encompassing, so that you can be in neither. If you do not meet the definition of a "prisoner of war" or a "civilian" then you are simply not protected by the Geneva Conventions at all.

By unlawful combatant, the administration is essentially saying that these detainees are in the "neither" group. They are fighting and therefore they are not "civilians." They are non-uniformed irregular combatants who blend in with the civilian population and therefore they are not "prisoners of war." Therefore they are simply not protected. These rules were changed significantly by Protocol I, Section III, Article 44 which is an amendment to the Geneva Conventions. The USA has not ratified Protocol I and so they are non-binding on the US.

The Geneva Conventions were deliberately written to exclude people in this way. Russia used this loophole to crush dissent across most of Eastern Europe after WWII. No one wanted to grant unaligned irregular forces any international rights or protections for obvious reasons. Nations treat unprotected groups however they see fit within the structure of their own laws. Which is how we should be dealing with them, by creating our own laws not by inventing things out of thin air or fat heads.