In section 4.1.2, it gives some insight into who may be accorded POW status:
Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
* that of being commanded by a person responsible for his subordinates;
* that of having a fixed distinctive sign recognizable at a distance
* that of carrying arms openly
* that of conducting their operations in accordance with the laws and customs of war
The Al-Qaeda terrorists do not fulfill all of these conditions, hence, they are not entitled to POW status.
Interestingly enough, when the USA ratified the convention in 1955, it was with this reservation:
"The United States reserve the right to impose the death penalty in accordance with the provisions of Article 68, paragraph 2, without regard to whether the offences referred to therein are punishable by death under the law of the occupied territory at the time the occupation begins"
Sorry HankB, but if you are going to make comments based on ignorance without even making a token effort to learn, it is not really my problem to straighten you out. As I said before, take some time and read the conventions.
Right back at ya.
This is exactly right, except there's one major issue that people here keep missing:
Being a POW means that you are generally exempt from criminal prosecution, even if you're a member of an outlaw army. This is the reason why German regulars went free after World War II-because they were considered something more like "guys doing their jobs in the field" than "evil defenders of the Nazi regime."
So no, no one argues that Al Qaeda members should get POW status. I don't think anyone has even tried to argue that.
But not being a POW does not equal having no rights. If you're not entitled to POW protections, and you are suspected of fighting in a war, then you are a suspected criminal.
And criminals have rights-ie, they get to hear the accusations and respond, and there has to be some proof provided to an impartial trier of fact that the person is in fact a criminal.
What does not exist in the law, and never has existed, is a class of people who can be punished as criminals without applying any of the legal procedures used to try crimes whatsoever. And that is precisely what the Bush administration is doing in many of these cases-handing out criminal punishment without applying the procedures generally used to prove crimes.
Again, to summarize, since many seem to be missing this key feature of the debate:
POW=no criminal prosecution, and no criminal punishment. POW's are not guilty of any crime. Wearing a uniform and behaving in accord with the conventions of war
earns the combatant the right to be exempt from criminal prosecution for his conduct."Unlawful Combatant"=criminal behavior. Not complying with the conventions of war, ie, behaving like Al Qaeda, makes you
a criminal. And we all know what is required to impose punishments on criminals-there must be proof that the person is in fact a criminal, and that the person committed a specific crime.
There is not and never has been a rule that you may be shot simply because someone in the uniform of an army said you were a spy or a guerrilla. And there're good reasons why, if you think about it. Granting executives and their agents the right to punish summarily, without answering to any judicial authority, and without having to observe any procedures for proving allegations, amounts to giving the executive the right to punish whomever it wishes whenever it wishes.