The Geneva Convention

Peter Robinson, over in the Corner, provided a link to the Geneva Convention so you and I can argue over whether the prisoners in Iraq fall under it. The Convention is here. The relevant article is below:

Article 4

A. 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.

As Peter rightly suggests, an argument could be made that the prisoners fit under 4(A)(2); however, once you get past 4(A)(2)(a) the definition collapses and is not met.

Another argument could be made that 4(A)(6) would define the prisoners as POWs. However, They did not “spontaneously take up arms” and they do not “carry arms openly and respect the laws and customs of war.” They fall outside that definition too. The law of war prohibits the stringing up and burning of civilian workers, which is what some did (though not the ones in prison at the time) to our contractors.

Now, for those who want to dicker with the definitions, Peter Robinson in this post provides the text of an email from Professor John Yoo, one of the nation’s leading scholars on the law of war. Mr. Yoo writes, in part

There is a lot of commentary that makes clear that to be a member of an “armed force” under 4(a)(1) or 4(a)(3), you must still meet the four criteria in 4(a)(2). The idea of 4(a)(2) was to give irregular forces, such as militias, POW treatment if they conducted themselves according to the standards of normal armed forces, hence the listing of the four criteria. This has been the historical understanding from before even the Geneva Conventions. . . .[T]he Geneva Conventions were trying to encourage these irregular forces to operate according to the higher, “armed force” standard by promising POW treatment in exchange.

The terrorist brigades in Iraq have clearly not “conduted themselves according to the standards of normal armed forces.” They and those currently in that prison do not meet the definition of a POW.

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Erick Erickson

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