Geneva Conventions, the Military Commissions

Keith Allred:

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The Geneva Conventions that comprise a substantial part of the law of armed conflict were debated and drafted in the aftermath of World War II, which left Europe and much of Asia in ruins and as many as 80 million people dead. Tragically, most of the dead were civilians and much of the damage was done to civilian property. The Convention drafters were clearly focused on preventing a recurrence.

Central to this weighty objective was a scheme for clarifying who could and who could not engage in hostilities and what could and could not be attacked. The drafters divided the field into two major categories: combatants and civilians. Combatants may engage in hostilities, civilians may not. Combatants may be attacked, civilians may not. To help make this division work in practice, combatants are carefully defined, and generally speaking they're the members of the armed forces of the nations at war. Everyone else is a civilian.

To enforce this scheme and to encourage compliance with the law of armed conflict, the Geneva Conventions provide both sticks and carrots to each group. Combatants are given immunity against prosecution for actions they undertake that comply with the law of war. If they are wounded or captured, they are promised prisoner-of-war status, including regular mail from home, religious services, and both housing and medical attention equivalent to those the detaining power provides for its own troops. If they are to be tried for any offense, prisoners of war must be tried in the same forum used by the detaining party to try its own troops. Lawful combatants captured by the United States, then, can only be tried in a court-martial.

Civilians have their own set of inducements. Their noncombatant immunity protects them from attack by those engaging in hostilities. At the same time, civilians are prohibited from actively taking part in the hostilities. This prohibition is to avoid blurring the distinction between combatants and civilians, which might put the entire civilian population in danger of being caught up in the war and increase civilian casualties.

Khalid Sheikh Mohammed and his co-conspirators are not lawful combatants. They are civilians who actively engaged in hostilities in violation of the laws of war. Thus, they are "unlawful combatants" or "unprivileged belligerents." They are not entitled to prisoner-of-war status or to trial by court-martial.

Unlawful combatants are entitled to be tried in a forum that meets the standards of the Geneva Conventions Common Article 3: a "regularly constituted court that afford[s] all the judicial guarantees . . . recognized as indispensable by civilized peoples." A military commission meets this standard, and trying unlawful combatants in a military commission advances important national interests in encouraging compliance with the laws of armed conflict.

Much has been said to impugn the military commissions as unfair, inadequate forums for the trials of these and other unlawful combatants. But the Geneva Conventions expressly contemplate tribunals for unlawful combatants that are less protective of their rights than the forum guaranteed to lawful combatants. Congress understood this scheme when it established military commissions to try unprivileged belligerents, as contemplated by Common Article 3. Trying these men in federal court improperly rewards their abuse of civilian status to engage in hostilities by giving them greater protection than we would give to a prisoner who complied with the laws of war. This is a dangerous precedent, and there is no need for it.

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There is more.

Eric Holder wants to ignore the laws of wars to have a show trial in a forum that will grant the enemy more rights than they are entitled to. This article addresses the Geneva Conventions in the proper perspective. It is something that many liberals have been unwilling to do.

What is especially egregious about the Holder position is that he turned down guilty pleas by the 9-11 terrorist in the military commission in order to do his show trial, where he has already proclaimed the out come. His show trial would cost the US hundreds of millions of dollars. He should reinstate the trials in the military commission and accept the guilty pleas.