You are entirely correct, but there is an even more basic reason that the 4th Geneva Convention on the protection of civilians does not apply to al Qaeda. It is found near the very beginning of the 4th Convention itself. The third paragraph of Article 2 reads as follows (italics are mine):

“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.”

In cases where a non-party to Geneva, such as al Qaeda, participates in an armed conflict, this paragraph means two things things:

First, the states who are high contracting parties must adhere to the convention’s terms insofar as their dealings with each other go. (E.g., if the U.S. and China faced off in a war in which, say, the Tamil Tigers were also participating, the U.S. and China would still have to accord Geneva protections to each other even though the Tigers would not be eligible for such treatment in the same war.)

Second, and more important for present purposes, let’s assume for argument’s sake that a non-contracting party such as al Qaeda could be considered a “Power” even though it is not a nation-state. Al Qaeda would still not be eligible for 4th Geneva Convention treatment unless it both accepted and applied the provisions of the 4th Geneva Convention.

To the contrary, al Qaeda’s modus operandi is to violate the laws of war — specifically to target civilian populations for mass attacks, as well as endangering civilian populations by hiding among them. As it neither accepts nor applies the 4th Geneva Convention, it is ineligible by the very terms of that convention.

This is perhaps the most salient point of the whole argument. The thrust of Geneva is to encourage civilized behavior. The object here is not simply to prevail on a technical legal point. Our point is not just that Geneva doesn’t apply to al Qaeda simply as a strict legal matter, although that is surely so. We are also arguing that applying Geneva to al Qaeda would reward and encourage the very behavior it was Geneva’s principal purpose to prevent.