Rules for an unruly war

As lawyers debate the legal fallout of recent wars in Afghanistan and Iraq, the highest-profile challenge to the international laws governing armed conflict isn't America's latest smart bomb technology but something more rudimentary.

It's the status of hundreds of irregular fighters who were unaffiliated with any national army and were often armed with little more than Kalashnikov rifles. The status of these combatants and their detention by the United States on a naval base in Cuba and in Iraq is the subject of fierce debate between Washington and many of America's closest European allies.

Sixteen months after the first captured fighter arrived at Guantánamo Bay in Cuba, the US still has imprisoned in a state of legal limbo more than 600 detainees from 40-plus countries who were seized in Afghanistan and other battlegrounds in the global war on terror.

As a result, the Bush administration remains at odds with a broad array of European diplomats, human rights groups, and the International Committee of the Red Cross (ICRC). At issue is whether detainees deserve the full protections afforded prisoners of war or only the limited rights granted illegal combatants - or something in between.

Even the US military's biggest detractors in Europe acknowledge that America is far from the worst offender in breaking laws designed to protect citizens and prisoners of war. For example, both sides in the 1980s Iran-Iraq War abused each other's POWs and took years to repatriate the soldiers. And in many internecine conflicts, such as Chechnya and the former Yugoslavia, combatants intentionally targeted civilians.

But specialists in international law say US actions since Sept. 11, even if technically legal, undermine the credibility of the laws of war.

"When the most powerful nation in the world subverts the international legal regime, it's like the most powerful person in the US saying, 'Law does not apply to me,' " says Kevin Clements, secretary-general of International Alert, a human rights group in London.

Clearly, diplomats who gathered in Geneva a half-century ago to update the laws of war weren't thinking about stateless combatants willing to fight long after hostilities officially ended, says Ruth Wedgwood, an international-law professor at the Paul H. Nitze School of Advanced International Studies (SAIS) in Washington.

The Geneva Conventions they approved addressed mainly the slaughter of innocents during World War II by drawing sharp distinctions between civilians and soldiers. Soldiers were issued a license to kill combatants provided they served in a national army, operated within a chain of command, wore visible insignia, and carried their weapons openly. Warring nations were directed to protect civilians from weapons and strategies that would cause large numbers of innocent deaths.

The conventions were amended during the 1970s after wars of national liberation such as in Vietnam where guerrillas, blending into civilian populations, erased such firm distinctions, says Professor Wedgwood. The 1977 additional protocol diluted the test for who qualifies as a prisoner of war and allowed soldiers to comingle with civilians until the time they deployed for combat, she says.

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