That just flew right by you. Situations arose that weren’t adequately covered. In other words, the Conventions don’t apply to all situations.
Let’s go to the actual documents: Common Article 1 says that the Conventions are important, and should be followed no matter how desperate we may think the situation is. That part you’ll certainly nod your head to. Good.
Common Article 2 says that the Conventions apply to all wars between two or more countries. This is where you run into trouble. Neither al-Qaeda nor the Taliban are countries. But don’t fret yet.
Common Article 3 was created after WWII to apply to internal wars. Contrary to what you may wish for, the Conventions were not written by the jihadi lawyers at the CCR. The men who did write it had been sent by their governments, and were not going to give a lot of protections to radicals who might revolt against their governments. They gave only the barest amount of protection. As I said many times, there is no POW status for detainees unless the parties come to an agreement. They must get trials, but only if they’re going to be sentenced. Locking up for the duration of a civil war is not sentencing.
The Protocols came later, but they’re irrelevant here, other than to point out again that they were added because the main Conventions do not cover everything in all wars.
From the beginning, the Bush administration gave Common Article 3 status to Taliban detainees, since theirs was a civil war. In 2003 or 2004, the military at Guantanamo decided to effectively treat all al-Qaeda detainees as if they had it, too. In 2006, the Supreme Court made it official that al-Qaeda detainees should have it, too.
But, again, they only have Common Article 3. They can be held without trial until the end of the war, and they don’t have POW status.
Detention of civilians is covered by the Fourth Geneva Convention, which also has the same Common Article 3 (hence the term “Common Article”). In other words, the balance of the fourth convention doesn’t apply to this war. Only Common Article 3 does. And even if it did, it includes a provision for holding saboteurs for as long as the situation requires. No POW status needed there either.
