12/7    The Third Geneva Convention clearly states that it applies
        in all cases (see Article 2) even if the other side does
        not follow it. And that the signatories are prohibited
        from engaging in "outrages upon personal dignity, in
        particular, humiliating and degrading treatment" (Article 3)
        upon any POW (Article 4) including anyone from the former armed
        forces who has laid down their arms. If there is *any*doubt*
        about the persons status, they are assumed to be POWs until
        a "Competent Military Tribunal" has determined their
        status (Article 5). This was clearly not followed by the
        Bush Administration.
        \_ You sure about Article 2?  My read is that if there are three
           warring Powers and two Powers are signatories and one is not,
           the one Power is the exception.
           \_ No, not sure. But Iraq said it would follow the Geneva
              Convention.
              \_ Yeah, even Dubya said Geneva applies in Iraq ... however,
                 the Dubya legal team have often pointed to Article 4, Section
                 A.2 to indicate that some detainees aren't covered.  As to
                 whether they check people against this rule formally, well ...
                 yeah, if they didn't do that, we would be violating Article 5,
                 wouldn't we?
        \_ Furthermore, the Fourth Geneva Convention is intended to
           apply to all not covered by the Third.
           \_ No cigar.  Article 5, "[w]here in the territory of a Party to
              the conflict, the latter is satisfied that an individual
              protected person is definitely suspected of or engaged in
              activities hostile to the security of the State, such individual
              person shall not be entitled to claim such rights and privileges
              under the present Convention..."  In other words, armed
              insurgents, and in a later paragraph spies and saboteurs, are
              not covered by Fourth Convention.  Fortunately, "such persons
              shall nevertheless be treated with humanity and, in case of
              trial, shall not be deprived of the rights of fair and regular
              trial prescribed by the present Convention. They shall also be
              granted the full rights and privileges of a protected person
              under the present Convention at the earliest date consistent
              with the security of the State or Occupying Power, as the case
              may be."  You can certainly argue the lack of humanity.  When
              there is a trial, they will have to be treated according to
              terms laid out in the treaty.  Unfortunately, we probably get
              to decide when the trail takes place or whether better treatment
              is consistent with our security.
        \_ Yes, everyone agrees that the Geneva Convention (via Article 2)
           applies in Iraq.  Unfortunately, all that article says is that the
           Geneva Convention applies.  Article 4 defines to whom the treaty
           applies.  Unfortunately, according to Article 4, it's unlikely
           the Iraqi insurgents are covered.  Fortunately, Article 4 also
           clearly lays out what the insurgents ("organized resistance
           movements" in the language of the treaty) have to do to be covered
           (having a commander, fixed visible sign, open carry, following
           laws and customs of war).  Now why the insurgents would not
           follow these simple rules is beyond me.
           \_ Don't forget Article 5, which says if there's "any doubt" that
              someone can be covered by Geneva, they get protection until
              a "competent tribunal" judges otherwise.
              \_ And the administration would say that it approaches mathe-
                 matical certainty that the Iraqi insurgents do not meet the
                 requirements in Article 4 for an "organized resistance
                 movement" (i.e. command structure, fixed visible sign, open
                 carry, following laws and customs of war).  Therefore they
                 are not bound by the "any doubt" provision in Article 5.
                 OTOH, I am sure the adminstration and members of the US
                 armed forces would be *thrilled* if the insurgents decided
                 to act in ways consistent with the requirements of Article 4.
                 The insurgents may choose to come under the protection of the
                 Geneva Convention any time by altering their tactics and
                 behavior.
                 \_ 4.6 is probably a better bet for the insurgents than
                    4.2 b/c 4.6 only requires them to adhere to the customs
                    of war.
                    Re competent tribunal - this can be almost anything
                    including a summary procedure by a jag officer. I
                    think it will be exceedingly difficult to find a
                    single instance where someone hasn't looked over the
                    case and made an Art 4 determination.
        \_ OBTW, your claim that Article 4 covers "anyone form the former
           armed forces who has laid down their arms" is clearly misleading.
           If you read Article 4, those people are only covered by the
           treaty "if the occupying Power considers it necessary by reason
           of such allegiance [of belonging or having belonged to the armed
           forces of the occupied country] to intern them".  IOW, if a former
           member of the armed forces were arrested for being a former member
           of the armed forces, then they are protected by the Convention.
           If the former member of the armed forces were arrested for (say)
           shoplifting, then that person is *not* protected.