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by Michael Copley

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There is a popular misconception that the US is in violation of international law and of the Geneva Convention by holding prisoners at Guantanamo Bay. If this were indeed the case, then the international community would be clamoring for their release. The fact that their incarceration is not being seriously challenged either from abroad or by Congress is ample indication that the action is indeed in general accord with both International Law and the Geneva Convention.

Often one hears that International Law is rather fuzzy and vague and subject to different interpretations. The principles embodied in International Law have been agreed upon by all civilized nations and many of them have remained unchanged for centuries. When Germany announced unrestricted submarine warfare, THAT was a violation of the international laws protecting neutral shipping and the proximate cause of the US entering WW I. Laws which can bring nations into the grave state of War are necessarily very clear.

Wars are waged between governments and intended to be fought by the official UNIFORMED combatant troops. When invading troops move through a populated area they are not to be attacked by civilians. When they come to a city, the mayor has the opportunity to declare it an "open city". In this case the invading troops are expected to purchase whatever supplies they require, and as far as possible to not interfere with the local population. If a civilian seizes his rabbit rifle and starts shooting at the invaders, that voids the open city agreement and that city is now subject to reprisals. This happened in WW I in Belgium and France, the Nazi reprisals of WW II are harsh examples. Today, this is why Israel can send in its tanks and bulldozers after it is attacked by mortars and rockets.

When a battle between the opposed armies is to take place, the civilian population in the battle zone is expected to evacuate. The columns of refugees are not to be molested. The two armies then engage and fight until an outcome is determined. An army may choose to surrender and all constituents of that army are then to lay down their arms. These troops then become prisoners of war and must be treated in accordance with the Geneva Convention. Any government soldier who removes his uniform to avoid capture is a deserter. Any soldier who removes his uniform with the intention of continuing to fight is a spy.

The US was very careful to observe the curious diplomacy of war. An ultimatum demanding Saddam's surrender was issued and allowed to expire. The uniformed government forces were defeated. The civil government surrendered, and our troops became an occupying force and now responsible for civil administration in all of its details until a new government could be constituted AND recognized internationally. There is only one recognized government in a nation. Any citizen who then attacks either the forces of the occupying army or the uniformed forces of the new civil government is an insurgent. Whether an civilian acts individually, as part of a resistance movement, or in a uniformed private army he is an insurgent and has no rights under the Geneva Convention and is guilty of taking up arms against the government of his country, a treasonous act leaving him with few civil rights. A foreign fighter who chooses to enter this arena is on even WORSE ground. He is not a citizen of the country and so enjoys no civil rights protection, and he does not have the support and protection of his own country.

What we now call the American Civil War was first called the War of the Insurgency. It is only a civil war when there are two acknowledged governments in the same country that you have the basis for a Civil War. In order to be a recognized government you must perform all functions of a government, including issuing currency, issuing stamps and delivering the mail, collecting taxes and customs duties. Then and only then can you make war using ONLY your uniformed military combatants.

Vietnam was not a civil war. The uniformed troops of the North Vietnamese Army were an invading force. The black pajama wearing Viet Cong were insurgents. Captured NVA were entitled to protection under the Geneva Convention. Captured Viet Cong were turned over to the South Vietnamese government which meted out a sometimes rough justice. Iraq is not a Civil War, however clear the forces that divide the nation.

The prisoners at Guantanamo Bay create a "practical" problem even more than a legal problem. The foreign fighters do not enjoy protection of their own government, they cannot be turned over to the Iraqi government as the Viet Cong were passed to the South Vietnamese government. They don't enjoy the rights of US citizens. The temper of our times does not support summary execution. These men are enemies of the United States and likely to take up arms again.

Clearly the United States did not anticipate such a prolonged and unresolved conflict. The explanation that they are being retained for intelligence gathering has certainly worn out. Dealing with them through military tribuneral was a very good idea, since they have committed acts of war. However this became a political football and each decision by such a tribuneral promised to bring a storm of protest. And so an unsatisfactory situation has been allowed to continue. However it is not an issue of the violation of their "rights". These men are quite literally "outlaws" in the same manner as pirates who commit their depredations in international waters. At this point, they are protected solely by our humanitarian values as a people, and political inaction, complacency, and quite possibly incompetence. Grim as their situation is, it is probably less grim than that faced by German soldiers repatriated to the Russian Zone at the end of WW II in accordance with International Law and the Geneva Convention.

Learn more about this author, Michael Copley.

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