Most would agree that peace and negotiation is preferable over war. However, we as humans, know that this dreamy ideology is often difficult to achieve. War is a part of human history and will be likely to continue to be far into the future. International laws recognize the inevitability of war and have adopted several sets of international legislation that govern the conduct of war. If a person is caught breaking these rules, even under the most hostile of situations, they can be tried for war crimes and punished accordingly. Legislation such as the Hague Rules of Warfare and the Geneva Convention were enacted when war was a different matter than it is today. This research will explore these bodies of legislation and their relation to terrorism and the more modern idea of 'wars of liberation'.
Laws of war set forth the conditions under which it is acceptable to wage war and set certain limits on the conduct of those who feel that their war is justified. Several of the issues cited in the law include the declaration of war, surrender, the treatment of prisoners, and the prohibition of certain weapons. The purpose of these laws is primarily humanitarian in nature and to protect those who are innocent from being the targets of undue violence. These laws are set forth to protect both those who are fighting and those who are innocent bystanders. Wars must be limited to the achievement of a certain goal and should not utilize resources that will not directly help the war effort. Wars cannot be used for personal gain or exploitation. The most important role of the international laws of war is to restore peace and to end the conflict as quickly as possible. That is the true spirit of international war laws.
The Hague Conferences of 1899 and 1907 set the stage for a more form of warfare that promised to be more humane and that was goal oriented, rather than violence for the sake of itself. It promised a kinder, more gentile form of warfare that resembled a high stakes game, and that did not involve those who were not directly pursuing the goal. The Geneva Convention came on the heels of one of the longest and bloodiest wars in history. It was meant to make certain that never again would humanity experience such a tragedy as it had just witnessed. These laws and the spirit of these laws are just and their goals are noble.
These laws were fitting for the time in which they were drafted. At that time, war usually referred to large-scale planned attacks carried out by governments with the blessings, or at least acknowledgement of their necessity, by the citizens. Smaller skirmishes and territorial conflicts were carried out in the same spirit, only they were organized by smaller factions and groups. Now, wars have evolved. New technology and the availability of arms to the average person has created the ability to wage wars that are not of international origin and that do not necessarily reflect the wishes and desires of a nation. War can be waged be a small group that claims to represent the whole of their people, but in reality, are cultural outsiders. This places a new perspective on international war laws and the prosecution of war crimes.
The most recent example of this is the War on Terrorism. Terrorism has been a part of the world long before the invention of drones, spy planes, and self-guided missiles. However, the attacks of 9/11 brought this new type of warfare to the forefront of the international community. No longer was the enemy a group that represented a nation, they were a small group that did not in any way represent the true feelings of their people. This was brought home when it was discovered that many of their victims would have been considered one their own, under the old rules of war. This new form of warfare was more brutal, it failed to follow the rules of fairness, and who could be defined, as the enemy was more obscure. The War on Terrorism forced the world to acknowledge a new type of warfare and a new type of enemy. Now the question is how to make them play by the rules.
Hamdi v. Rumsfield
Hamdi v Rumsfield is a U.S. Supreme Court decision that dismissed the petition of habeas corpus brought to them on behalf of Yaer Esam Hamdi. Hamdi was captured in Afghanistan in 2001 and turned over the U.S. military authorities during the U.S. invasion. It was alleged that Hamdi was fighting for the Taliban. Hamdi claimed that he was simply a relief worker and that he had been mistakenly captured. Hamdi was held in Guantanamo Bay and then transferred to a bring in Norfolk, VA. While there, it was discovered that he held dual citizenship in the U.S. And in Saudi Arabia. The question was whether Hamdi was a U.S. citizen being illegally detained and denied his constitutional rights under U.S. law, or whether he was an enemy combatant. It was determined by President Bush that because he was captured while in arms against the U.S., he was considered an enemy combatant. This meant that he would not have access to an attorney or the U.S. court system. After several appeals and a long court battle that continually shifted the status of Mr. Hamdi's rights, it was determined that the habeas corpus should be dismissed and that the U.S. government should retain its right to detain enemy combatants (Hamdi v. Rumsfeld, 2004).
This case brought the topic of unconventional warfare and how to apply existing laws into the forefront of the International community. Now, one must question whether the same laws and rights apply to terrorist groups, who do not use conventional warfare means and do not have the support of their country backing their actions. Many Muslims were killed in the World Trade Tower bombings and many in the Muslim community lashed out against what had been done. It was clear that this act was different in many ways from conventional warfare, as it was when laws such as the Geneva Convention and Hague Rules were conceived and adopted.
Hamdi v. Rumsfield brought the point into public view about the fair and equitable application of rules governing war. It challenged the rights of one of a combatant against the United States. However, it left many issues and questions as to whether international rules need to be adjusted to reflect a new type of warfare that is being waged in the world today.
Hamdi v. Rumsfield the effect of determining that Common Article 3 of the Geneva Convention applied to a global conflict where a non-state actor, Al-Qaeda, that took place within the boundaries of a territory that is party to the Geneva Convention were applicable (Welsh, 2006). This was the reasoning used by the Supreme Court to decide that the Geneva Convention was applicable in this case. This was a reversal of the way in which detainees were treated prior to this decision (Babington & Abramowitz, 2006). This case set precedent and has been used to determine the status of other terrorists taking part in the global war on terrorism.
Geneva Conventions and the New World at War
The Geneva Convention has four rules for combatants. Combatants are defined as:
Members of the armed forces of a party to an international conflict
Member of militias or volunteer corps including members of organized resistance movements as long as they have a well-defined chain of command
Are clearly distinguishable from the civilian population
Carry their arms openly and obey the laws of war (Williams, 2006).
Many of the terrorists do not meet these criteria. Any combatant that does not follow all four of these basic rules is not entitled protection under the Geneva Convention. It does not say that a combatant has to follow one of these rules, it says that they have to follow all of them, in order to receive the protections. The Convention further goes on to clears state, "However, other individuals, including civilians, who commit hostile acts and are captured do not have these protections" (Williams, 2006). The question then becomes whether terrorists are civilians or member of a legitimate military force.
Rumsfeld is accused of not obeying the Geneva Convention in his ordered treatment of suspected terrorist prisoners. However, if the combatants were not following the rules themselves, then Rumsfeld did not have to follow the rules either. This issue has been covered in political rhetoric and agendas since the story first broke loose. The average citizen is quick to form opinions without a real understanding of the laws involved. The press is said to have played a key role in stirring the public about the issues involved in this controversy.
In many cases, the facts of the case and whether the rules of the Geneva Convention apply are based on the idea that…