The problem is that under the GCs, enemy combatants are not entitled to a trial, simply to incarceration under humane conditions. Once the conflict is over, they are entitled to repatriation.
Assuming that the imprisonment of AQ fighters at Guantanamo calls into play the GCs, who can say when the war on terror has ended such that repatriation is legally required?
A decent legal case can be made for the proposition that since no entity signing off on the GCs is involved, the AQ combatants are not entitled to any of the GCs' protections. They can be tried for crimes they may have committed, if any US criminal laws apply to them. But since they are combatants unaffiliated with a state which is a party to the GCs, it seems that they are only entitled to a hearing on whether they are in fact combatants and therefore properly held.
I am not sure, but I think that this is the current status of things.
As a matter of principle, I would apply the GCs to them in all respects, regardless of the lack of any affiliation to a nation which has declared war on us. It is the humane, civilized thing to do
But even if the GCs are applied, they should be held until the conflict is over. Given the state of things, it would be pure folly to let them loose so that they could participate in informal warfare against us.
In any event, the legal framework for dealing with combatants who are unaffiliated with a signatory to the GCs is in dire need of revision. That can kind of revision can take decades to implement. |
