Geneva Convention?

I hear frequent qvetching over the Bush administration's position that the Geneva conventions may not apply to al Qaeda members held at Guantanamo Bay. Some assert the administration has claimed it doesn't have to follow the Geneva conventions at all. In fact, there's some question as to whether the conventions apply to terrorists, and if so, which of the four do.

President Bush has, of course, refused to grant any Geneva Convention status to al Qaeda members because that group is not, and could not be, a party to those treaties. <snip> In particular, the Supreme Court did not require that detainees be treated as prisoners of war (POWs) until a "competent tribunal" has determined otherwise, as provided in Article V of the Geneva POW Convention.

A federal district judge has ruled that one fellow, Salim Ahmed Hamdan is entitled to protection under the Geneva conventions.

the district court has ordered in Mr. Hamdan's case, in addition to challenging the government's right to try him before a military commission. The Geneva POW Convention, the court concluded, applies to everyone fighting in Afghanistan, regardless of their nationality or allegiance, merely because that country has ratified the treaty. This, of course, would extend Geneva protections to al Qaeda. The Geneva POW Convention, however, does not apply territorially. It creates burdens and benefits for one-state party vis-a-vis other state parties. Thus, if two Geneva parties go to war, they are bound by the convention regardless of where the war is fought. By the same token, if a Geneva party fights a non-Geneva party, the non-party does not automatically qualify for the treaty's protections — even if the conflict takes place on a party's territory. <snip> Indeed, under Article 2's plain meaning, individuals fighting for a non-party can only be brought within the treaty's reach if the entity itself "accepts and applies the provisions" of the Geneva Conventions. To achieve this, of course, the belligerent must be a state or, at a minimum, a group plausibly seeking recognition as the lawful government of a state. Private individuals, including trans-national terrorist organizations like al Qaeda, legally cannot make war on anyone, and they are incapable of acceding to the Geneva Conventions — formally or informally.

The downsides of granting Geneva convention protections to al Qaeda include:

...granting Geneva benefits (whether formally or under the guise of "customary" international law) merely works to legitimize the savage and illegal war al Qaeda has declared, and the ferocious tactics — particularly targeting civilians — it has adopted.

In other words, the tactics used by al Qaeda – all their tactics – become "fair game" for anyone else to use in war. Is that a can of worms we want to open?