from the Congress Action newsletter

Geneva Convention

by: Kim Weissman
February 3, 2002

The hysteria over the alleged "rights" of the terrorists being held in custody at Guantanamo Bay, Cuba, has reached absurd proportions. The most stupidly simplistic analysis goes like this: we are at war, the terrorists were taken prisoner during the war, therefore the terrorists are Prisoners of War, and prisoners of war are entitled to certain rights under the Geneva Convention. If the people making that argument (those from the "my mind is made up, don't confuse me with the facts" school of non-thought) would take the simple step of actually reading the document that they want to invoke, the Geneva Convention, they might have some second thoughts. And they might also discover something else — that they really don't want to apply the Geneva Convention to the terrorists after all. Or at least, they would want to treat the Geneva Convention in the same way many of them try to treat the United States Constitution, that is, selectively applying only those clauses that suit their agenda, ignoring those that they don't like.

A Prisoner of War is what's known as a "term of art" — it has a specific legal definition, in this case contained in Article 4 of the Geneva Convention, the relevant portions of which read:

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.

Despite the fact that al Qaeda terrorists clearly do not fall within any of these definitions of Prisoner of War, the rights crowd suggests that there remains some doubt, and thus a "competent tribunal" should determine their status:

Article 5:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

If the detainees are granted the official status of Prisoners of War, several consequences would flow from that status. Perhaps the most important, and the reason why those who are concerned with the national security of this country resist the POW classification, is contained in Article 17. According to those charged with safeguarding our national security, the terrorists in custody are giving up information that is helping to thwart additional terrorist attacks. That flow of information would cease if they officially became POWs:

Article 17:

"Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information."

There are additional consequences that would follow the classification of the detainees as POWs. For one thing, all of the gawking media would have to be immediately sent packing. The media is constantly at odds with the Pentagon over what media types claim is "unnecessary" (in their own "expert" military judgment) military secrecy. How would they all like to be kicked out of Guantanamo entirely, as would be required by the Geneva Convention?:

Article 13:

"…prisoners of war must at all times be protected, particularly…against…public curiosity."

Then there are gender complications. Our military contains women soldiers, some of whom, it has been reported, are guards at Guantanamo. Given what has been reported about the utter subservience of women in pre-war Afghanistan, it is clear that those women soldiers would have to go, squawks from radical feminists notwithstanding:

Article 14:

"Prisoners of war are entitled in all circumstances to respect for their persons and their honour. … The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires."

The tobacco Nazis around the world would also have reason to complain about the Geneva Convention:

Article 26:

"The use of tobacco shall be permitted."

Article 28:

"Canteens shall be installed in all camps, where prisoners of war may procure foodstuffs, soap and tobacco and ordinary articles in daily use."

Finally, all of the objections over the plan to use military tribunals to try the terrorists would be rendered irrelevant. Under the dictates of the Geneva Convention, military courts would not only be preferred, they would be required:

Article 84:

"A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war."

The above article is the property of Kim Weissman, and is reprinted with his permission.
Contact him prior to reproducing.

Contact Mr. Kim Weissman at
"I gladly receive and respond to any comments and criticisms readers care to make regarding the content of what I write every week in the CONGRESS ACTION newsletter. But I do not open e-mail with attachments from unknown senders, and e-mails containing attachments are automatically deleted." – Kim Weissman

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3 feb 2002