Marty Lederman in the fourth of a series of postings, linked by Orin Kerr at the Volokh Conspiracy, reviewing the John McCain-sponsored Al Qaeda Bill of Rights, notes what he regards as potential negatives, including: (the possibility of the) Admission of Evidence Obtained by Torture and Limitations on Detainees’ Access to Judicial Review.
Lederman’s position implicitly involves vesting detained terrorists and illegal combatants with rights to treatment and protections pertaining to persons enjoying the status of prisoners of war. But what is the actual status of such persons? To be entitled to be treated as a prisoner of war, the individual apprehended under arms in some form must be either a uniformed individual serving in the regular armed forces of a recognized state, which these detainees are not; or meet all of the criteria required for recognition of equivalent irregular status in
Section 2 of Article 3 of the Geneva Convention:
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
Terrorists and unlawful jihadist combatants fail all four of the above tests, and should be consequently regarded as ineligible for the honorable status of prisoners of war, and should be regarded and treated, as hostes humani generis, “the common enemies of humankind.” See Joseph P. Bialke, Al-Qaeda & Taliban unlawful combatant detainees, unlawful belligerency, and the international laws of armed conflict.
As Mackubin Thomas Owens writes:
The real reason the detainees are not entitled to POW status is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval European jurisprudence. As the eminent military historian, Sir Michael Howard, wrote in the October 2, 2001 edition of the Times of London, the Romans distinguished between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi — pirates, robbers, brigands, and outlaws — “the common enemies of mankind.”
The former, bellum, became the standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to the latter, guerra — indeed, punishment for latrunculi traditionally has been summary execution.
While not employing the term, many legal experts agree that al Qaeda fighters are latrunculi — hardly distinguishable by their actions from pirates and the like. As Robert Kogod Goldman, an American University law professor who has worked with human-rights groups told the Washington Times, “I think under any standard, the captured al Qaeda fighters simply do not meet the minimum standards set out to be considered prisoners of war.”