Devil's advocate on #4
GENERAL PROVISIONS
Article 1
The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.
Article 2
In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
[...]
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.
B. The following shall likewise be treated as prisoners of war under the present Convention:
1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.
C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.
A war between states doesn't have to be legally declared for the Convention to be applicable.
However:
Articles 1 and 2:
What's a "High Contracting Party"? This document seems to be designed to govern conflicts between states, not between a state and a guerilla/terrorist organization.
Article 4:
A.1. Doesn't seem to apply to al Qaeda.
A.2. Comes very close, but conditions a-d aren't satisfied.
A.3. Doesn't apply.
A.4. Doesn't apply.
A.5. Doesn't apply.
A.6. Comes very close, but al Qaeda doesn't recognize the laws and customs of war.
B. Doesn't seem to apply.
C. Doesn't seem to apply.
The Convention on war prisoners would thus not seem to apply to al Qaeda. I think Rumsfeld has said as much. He has also said, however, that the protections outlined in the convention against torture, making them a public spectacle, etc., would be observed.
My personal view is that the intent of the Convention is to protect prisoners of military conflict of whatever stripe. (It's to protect people, not states.) The details of what legal options, etc., they have are also outlined in the Convention. It's not clear to me whether those should apply to a guerilla/terrorist organization the same way they apply to an organized army of a state. Some clearly should, but others are more dubious.
FWIW.
Cheers,
Scott.