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.
But last year the US declared the Geneva Conventions unfit to handle terrorists captured in Afghanistan and elsewhere as part of the post-Sept. 11 global war on terrorism. Instead, Washington labeled these operatives "illegal combatants" - a classification criticized by the ICRC and human rights groups.
"That whole prison in Guantánamo Bay is in a very delicate legal twilight zone," says Mr. Clements.
This week, the US is scheduled to release a dozen detainees - including some believed to be minors. Thiry new detainees are expected to arrive.
In Iraq, the US faces another classification conundrum. Last week, the Pentagon announced that it is holding 200 foreign fighters and an unspecified number of fedayeen militiamen, who fought against the US outside the Iraqi military chain of command and may not qualify as POWs.
The ICRC and human rights groups would resolve the ambiguous status of these fighters by interpreting the Geneva Conventions as inclusively as possible and not requiring that all four qualifications of legal combatants be met before affording detainees full POW protections.
POW classification requires the US to prosecute prisoners in the same way as captured soldiers - including allowing them the same system of justice as American troops. But those lacking lawful combatant status could be prosecuted for attacking otherwise legitimate military targets.
In large measure, the US has treated the Guantánamo detainees as though they were POWs, allowing visits by ICRC personnel, for example. But they have been denied some items provided POWs, such as pen knives, which could be used to harm guards.
The more significant divergence is POW release at the end of hostilities. The Geneva Conventions require any continued detention to be based on a crime being charged or some judicial process being started in which the detainee can challenge his detention, says Gabor Rona, a legal adviser with the ICRC in Geneva. So far, US civilian courts have ruled that they do not have jurisdiction to challenge the Guantánamo detentions.
Even more crucial is the issue of how to prosecute Guantánamo detainees. This month, the Pentagon finally released details of how they might be tried. Instead of courts martial with all the protections afforded US soldiers, the Bush administration says it plans to prosecute detainees before military commissions. Such commissions would have jurisdiction over 26 offenses, ranging from war crimes to terrorism and false surrender.
The Defense Department says the need to protect intelligence sources and vastly different kinds of evidence during wartime justifies the use of commissions. "It's tough to get a warrant for [searching] a cave," a Pentagon official said at a briefing this month on the new military instructions.
Critics say the commissions almost guarantee convictions by making it difficult for defendants to obtain civilian lawyers, by allowing the US to tape-record conversations between defendants and their attorneys, and by offering no independent appeals process.
"These are Draconian courts that are more likely to convict than not," says Michael Rattner of the Center for Constitutional Rights in New York.
The trickiest category of detainees are those who acted more like terrorists than soldiers in Iraq or were detained outside the battlefield in Afghanistan and shipped to Guantánamo. Human rights lawyers argue that this type of defendant should be classified as a terrorist and prosecuted under criminal law.
Take the case of the Iraqi soldier who dressed in civilian clothing and drove a taxicab. He blew himself up in March at a US checkpoint, killing four American soldiers. If the suicide bomber had survived, should he have been prosecuted under US law, Iraqi law, or the International Criminal Court, which neither Iraq nor the US has ratified?
As the ICRC's Mr. Rona points out, labeling the battle against international terrorism a war doesn't necessarily mean that the international laws of war are invoked and that the US has the right to operate outside civilian criminal-justice norms. "Certain levels of hostilities do not rise to the level of armed conflict because societies have the ability to resolve conflict through means that don't involve institutionalized violence," Rona says.
Adam Roberts, a professor of international relations at Oxford University, says the Geneva Conventions do provide a middle ground for handling questionable combatants. He cites the 1977 additional protocol, which provides guarantees for those who are neither POWs nor civilians.
The US appears to have recognized that middle ground in parts of the instructions released this month for prosecuting Guantánamo detainees. Many, but not all, elements of the instructions adhere to provisions of the accord that created the International Criminal Court as well as the 1977 Geneva Conventions addendum, even though the US Senate never ratified the amendments.
The misclassification of combatants is not the only potential violation of the Geneva Conventions in recent wars. Human rights groups say the US military may have violated the conventions ban on cluster munitions in residential neighborhoods and tolerated looting in the early days of occupation.
More serious than US violations, says Wedgwood, may be Iraq's strategic misuse of the laws of war. Its soldiers and foreign allies reportedly used civilians as shields, employed surrender as a ruse to attack US troops, stored ammunition in hospitals, and fired from mosques.
Before the war in Iraq began, a new consensus emerged among all sides that wholesale changes to the Geneva Conventions right now would not be a good idea. The Bush administration, which was the main proponent of such changes, backed off from that position at a conference sponsored by Harvard University in January, says organizer Claude Bruderlain.
Past experience suggested that codifying changes could do more harm than good, creating watered-down provisions. Delays in revisions followed both world wars, says François Bugnion, head of the ICRC's legal division in Geneva. "It would be quite difficult and quite counterproductive to revise the rules in the middle of a situation such as we know today."