Although the Bush Administration conceded on February 7 that the Taliban detainees at Guantánamo Bay deserve to be covered by the Geneva Conventions, the Administration refused to allow them, or any of the 186 detainees at that time (the number now stands at about 300), prisoner-of-war status. One might reasonably expect that the Geneva Conventions and the protocols of international law would offer a promising legal avenue for contesting the US government’s detention and treatment of these prisoners, and indeed they provide some useful resources for this purpose. But the 1949 Geneva Convention accord on the treatment of prisoners of war, based on an outmoded notion of war and soaked in bias toward the nation-state, makes it difficult for POWs who do not belong to recognized states with conventional armies to lay claim to protection under international law.
The Administration claims that these prisoners do not merit POW status under the Geneva Conventions, which stipulate that POWs must belong to a "High Contracting Party" and have operated in the service of "regular armed forces" in a conventional war. But the United States, understood as the "Detaining Power" under the conventions, is required to treat these prisoners as POWs until a "competent tribunal" is set up to decide the question. At the same time, the paradoxical fact is that the Geneva Convention accord on POWs, which seeks to protect prisoners of war from hostile governments that may well be unwilling to recognize their rights to fair treatment, also functions as a civilizational discourse that favors prisoners who belong to established nation-states. So while it is important to insist that international law ought to be followed in this case, we also need a critique and expansion of this law. And the law must be changed not only in light of the new character of war but to insure that those engaged in military action on behalf of stateless organizations receive the same protections as those who fight for established states.
On January 22 Defense Secretary Donald Rumsfeld explained why these prisoners should not be called "prisoners of war," and why he prefers to call them "battlefield detainees" or "unlawful combatants." For the United States, these are not POWs, because this is no ordinary war; it is not primarily a battle between recognizable nation-states or, in the parlance of the Geneva Conventions, "High Contracting Parties." The term they have come up with, "battlefield detainees," designates a place not yet under the law or, indeed, outside the law in a more or less permanent way. It is unclear whether some of these prisoners will ever be tried, and Rumsfeld at the end of February indicated (and recently reaffirmed) that they might be held "indefinitely" without trial. In this context, the hunger strikes in which many prisoners have engaged might be understood as another version of a suicide tactic, practiced by those who stand little chance of achieving the status of legal subjects in an appropriate trial. If they are tried, it is not ruled out that they could be sentenced to death, without any rights of appeal, by a military tribunal. The Geneva Conventions rule out the possibility of a secret military tribunal for POWs and guarantee trials that follow the laws governing civilians or, minimally, the same kinds of courts to which US POWs are subject. But the United States has allowed no legal counsel for these prisoners and no guarantee of a trial that would follow the stipulated rules, and it clearly has no intention of doing so, even though it seems willing in some instances to allow repatriation to nations such as Britain.
The Geneva Conventions and the United States both engage in the questionable practice of distributing rights of protection differentially, depending on a prisoner’s affiliation with a state-based military operation. Instead of asserting an entitlement to protection against degradation and violence and rights to a fair trial as a universal right, the Geneva accord on POWs applies a selective criterion to the question of who merits protection and who does not, and it clearly privileges those prisoners in wars between recognizable states. The Conventions accept conventional war, but have not been articulated well enough to have a clear application in the present circumstance.