Regarding POWs and the Geneva Convention, I received a couple of emails today accusing me of quoting the Convention, in my posting, below, in an intentionally misleading manner. To wit:
[Y]ou deliberately left out the SECOND way a person can be considered a POW to make it appear that the four prong test was the ONLY way….[T]hat’s not even close to be accurate. Paragraph 4(a)(2) is what you quoted, of course they [detainees] could STILL BE POWS UNDER 4(a)(1) or (3) for that matter but of course you make it seem as if 4(a)(2) is the ONLY definition of a POW. There’s also 4(B)(1) under which they may be considered POWs or to be treated as such.
Are you going to have the decency and admit to this slight of hand or what? Post ALL of Article 4!
Rather than post Article 4, let me simply provide a link to the entire “Geneva Convention Relative to the Treatment of Prisoners of War” as it appears on the website of the United Nations High Commissioner for Human Rights.
More to the point, let me post a reply by John Yoo, one of the nation’s leading scholars on the law of war. Now a professor at Boalt Hall, the law school at U.C. Berkeley, John spent the first couple years of the Bush administration in the Department of Justice. John writes:
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.
Also, an alternate reading makes no sense, because it would allow units of an armed force to systematically engage in the most outrageous, brutal war crimes, to fight by hiding among civilians, to not wear uniforms, etc., etc., and still retain their POW status while militias and volunteer corp had to fight according to a higher standard. Makes no sense because the Geneva Conventions were trying to encourage these irregular forces to operate according to the higher, “armed force” standard by promising POW treatment in exchange.
Anyone who would like to pursue John’s thinking at greater length (and savor the pleasures of truly lucid legal writing) can take a look at John’s comprehensive treatment of POWs and the Geneva Convention in the Virginia Journal of International Law.