Dealing with Combatants in Guantanamo

One sometimes wishes that the Left would lavish a proportional amount of attention on the 11 million prisoners suffering under Fidel Castro as the warden of an entire island as they do on the 660 prisoners held at the US Base in Guantanamo, Cuba. In the last Administration, the Left glowed with smug satisfaction when the only one forced by the United States to enter Cuba was a young boy at gun point. But that was another issue for another time.

What is the appropriate way of dealing with individuals captured on the battlefield in Afghanistan and now detained at Guantanamo? The laws of war were agreed to in an age when powers, especially European powers, fought pitched battles between groups of soldiers. The rules specifying the treatment of captured combatants arose in a context of a clearer separation between soldiers and civilians.

Soldiers are afforded immunity from normal civil laws against killing and destruction. In exchange for this immunity, they are also liable to be the indiscriminate targets of other soldiers. Under the rules of war, civilians are also protected. They are not normally the objects of attacks. This is not to say that civilians are never killed, but under the rules of war, they are not to be the deliberate objects of aggression. When these two categories get blurred, risks increase for both soldiers and civilians, particularly civilians. If captured, soldiers become liable for criminal sanctions. If civilians are viewed as combatants then the dangers to those civilians that do not participate in aggression grow as it becomes more difficult for regular soldiers to distinguish combatants from civilians.

Nonetheless, over time it has become clear that some civilians do join in battle as irregulars. This was a particular problem in the US Civil War when the distinction between civilians, militia members, and soldiers blurred. Even regular soldiers were not always properly uniformed. According to Daniel Moran of the Center for Contemporary Conflict, the Union under the direction of Columbia University law professor Francis Lieber formulated the "Lieber Code." "It declared that civilians who had organized themselves into 'free corps' in order to resist advancing Union forces should be treated as combatants, even if not in uniform. Clandestine violence by individuals remained subject to summary justice, however, as did any form of civilian resistance once an occupation had been established."

This distinction has been recognized and given international sanction in the Geneva Accords, Convention III Relative to the Treatment of Prisoners of War, (1949). Not only are uniformed soldiers to be accorded prisoner of ware status, so, too, are journalists and service personel, like truck drivers, who service the soldiers.

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