Amending Geneva

Article 4 of the third Geneva Convention, dealing with the definition of prisoners of war, states:

Article 4 defines prisoners of war to include:

4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces

4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:

• that of being commanded by a person responsible for his subordinates;
• that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
• that of carrying arms openly;
• that of conducting their operations in accordance with the laws and customs of war.

4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.

4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favorable treatment under any other provisions of international law.

4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

No where in the does the term “non-state actor” appear. Partly because it was drafted in 1949 following a major conventional war between legitimate states in the international system, and partly because non-state actors were not as prolific as they are today. In the new modern day international system of independent, non-state actors, there is a major lapse found in the absence of any judicial due process. The fact that there is no provision that provides for due process of actors not described in Article 4 of the Geneva convention is a major human rights violation and antithetical to the general rule of law.

Article 5 goes on to state:

[P]risoners of war (as defined in article 4) are protected from the time of their capture until their final repatriation. It also specifies that when there is any doubt as to whether a combatant belongs to the categories in article 4, they should be treated as such until their status has been determined by a competent tribunal.

Of all states in the international system, the United States seems to be the most abusive of this lawful aberration. The detainees kept prisoner at Guantanamo Bay, Cuba and at other prison institutions around the globe have basically fallen trap to an international law loop-hole. The absence of any provision gives states free-reign to essentially do as they please with captured detainees not covered by Article 4. The question is how do we (the United States) set out to remedy this situation.

For clarity’s sake , I am by no means condoning acts of terrorism or any other affiliated actions, but as a citizen of the United States and an advocate of due process of law, for all people worldwide, I feel it is the duty of the United States to rectify this error in the international judicial system. The liberalist idea that all are innocent until proven guilty is a mantra that we as citizens of the United States and advocates of fairness and equality live our lives by. The fact that those who do not belong to a specific state or cannot be closely associated with anything comparable are left to the mercy of extraterritorial penitentiaries and are void of any legal representation is to set a very hypocritical double standard. We need to set aside our repugnant prejudices and misconceived stereotypes in advocation of system which treats all under the same standard. The notion that any man wrongfully held should heckle the American psyche and prod a call for justice.

We, the United States, as the most powerful country need to take the initiative to amend the Geneva convention to provide due process for all peoples, regardless of whether or not they have any legitimate state association. The very fact that this problem has gone unsolved as long as it has is as farce to liberalism everywhere and should be given immediate attention.