Perspectives
No POWsUnlawful combatants, American law, and the Geneva Convention.By Ronald D. Rotunda
Robert D. Rotunda is professor at George Mason School of Law(
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The United States says that the prisoners held in Cuba are "unlawful combatants," not prisoners of war. Some critics treat this as all word play. There is a war, they became prisoners, and that makes them POWs, right? Wrong. Whatever one thinks of the way we treat detainees (the news has reported that some have no complaints while others repeatedly threaten to kill their guards), one cannot argue that they are POWs under international or American law.
First, let's turn to American constitutional law. In Ex Parte Quirin (1942), the Supreme Court upheld the jurisdiction of a military commission that convicted German saboteurs who landed in the United States to commit acts of war. The Germans trained them in the use of explosives and other sabotage techniques. They buried their German Marine Infantry uniforms immediately upon landing. The Supreme Court said that the soldiers thereby became "unlawful combatants . . . subject to trial and punishment by military commission for acts which render their belligerency unlawful."
Seven of the eight soldiers were born in Germany while one was a United States citizen. All eight, who had lived in the United States, returned to Germany between 1933 and 1941. The United States did not treat the saboteurs as POWs. Instead, it treated them as "unlawful combatants," tried them by military tribunal, and executed most of them.
The end of World War II saw more military tribunals. There was, of course, the multinational Nuremberg war-crimes tribunal, but there were many more national war-crimes tribunals. Nuremberg handled about 200 cases but the United States Army Judge Advocate prosecuted another 1,600 war-crimes defendants. French and British tribunals had their own military tribunals.
Now, let's turn to international law. Both Afghanistan and the United States ratified the third Geneva Convention of 1949, which sets out basic protections for POWs, but they must be "lawful combatants" for the treaty to apply.
The Geneva Convention sets out four key preconditions. First, the soldiers must be part of an organized command structure, so that leaders can be held responsible. Second, the soldiers must wear fixed distinctive emblems visible from afar — so that the other side can avoid killing civilians without fearing attack from disguised fighters. Third, the soldiers must carry arms openly. Fourth, the other side must respect for the laws of war, for example, by not taking hostages.
Al Qaeda repeatedly violated these preconditions before, after, and during the Sept. 11 attacks. The al Qaeda terrorists target civilians; they do not wear uniforms; they do not carry arms openly; they take hostages (such as the hostages they took when they hijacked the four airplanes on Sept. 11). The Taliban leadership harbored, aided, and abetted Osama bin Laden and al Qaeda in their violations of the laws of war, and al Qaeda, in return, financed the Taliban. The Taliban soldiers, or many of them, committed war crimes, such as hiding weapons in mosques, and using their own people as human shields.
The Geneva Protocol allows non-state belligerents to secure protected treatment under the protocol. They just have to file a declaration with the Swiss government accepting the obligations of the protocol. When al Qaeda does that, then it will receive the benefits of POW status.
Some people argue that we should treat war criminals as POWs so that terrorists will be nicer to our citizens. Or will al Qaeda see this as more weakness by a paper tiger? Does al Qaeda respect strength or weakness? However you answer these questions, realize that if we treat the Cuban prisoners as POWs we will be giving them something to which they are not entitled under international or American law.
Of course, whether or not we treat the detainees as POWs, they should have trials and these trials should be fair. If the government cannot prove that a defendant has violated the Geneva Convention or the laws of war, he should be set free. In deciding these issues, there are those who say that it is crucial that the United States has not "declared" war. Not so.
The Constitution gives to Congress the sole power to "declare" war. The Founders specifically rejected a proposal that only Congress could "make war." The last declared war that the U.S. fought was WWII. The Korean War, the Vietnam War, etc., were never declared. The Civil War, the bloodiest war in U.S. history, was never declared.
The framers — and international law at the time — understood that one does not need to "declare" war in order to fight in a war of self-defense. Only aggressive war need be declared, and the U.N. treaty outlaws that. Under the historical view of the war power, there was no need to declare WW II (although we did so). Nor was there any need to declare the Gulf War, because a state, like Kuwait, always has the right of self-defense, and it can ask other states for assistance. Under the U.N. Charter, we could assist Kuwait because we had no intention of waging an aggressive war. And under the U.N. Charter we also have the right to defend ourselves when subjected to acts of war, like the attacks of September 11th.
Keith Lowe (2L) was named chairman of the Jay Committee. The Jay Committee includes the Media Relations Committee, the Committee on International & National Security Law, the Committee on Environmental Law & Property Rights, and the Committee on Religious Liberties.
