The Prisoners

32Historically Speaking · November 2002 The Prisoners Armstrong Starkey The detainment of hundreds of suspected terrorists at Guantanamo has left President Bush's administration groping for definitions of dieir legal status. Furthermore, die debate over die possible prosecution ofprisoners dirough military or civil courts raises questions about die definition ofwar. Since the 18di century, war has been defined in international law as conflict between established nation-states. In die 18di century, soldiers came to be recognized as die servants of increasingly centralized and impersonal states, and uniforms clearly marked dieir nationality: British red, Prussian blue, and die white uniforms ofCadiolic countries. Soldiers were perceived as die lawful agents of those states and, as such, were entitled to protection when wounded or captured by die enemy. In 1758, die Swiss writer Emmerich de Vattel published The Law ofNations which applied traditional just war theory to modern conditions. Even diough he published his great work during die Seven Years' War, one of the most destructive conflicts of the era, Vattel praised the advances in die humane conduct ofwar, particularly with respect to the good treatment of prisoners. In doing so, he established a norm that influenced 19dicentury codes such as die Lieber Rules, established to guide die conduct of die Union army during die American Civil War. Although Vattel extended his standards to covermilitias and participants in civil wars, The Law ofNations was intended only to provide direction forwars between established states. Stateless peoples such as Native Americans or Pugachev's Cossack rebels could not expect the protection of the law. Vattel was explicit in stating that a nation attacked by irregular means in an informal, illegitimate war was not obliged to observe die formal rules of war, and could treat the enemies as robbers. Savage nations, which observed no rules, could be dealt with severely. International conventions of the 19th century confirmed die direction established by Vattel. These conventions were binding upon signatory states. It was understood diat war was between states and diat die purpose of the conventions was to ameliorate conflict for the benefit bodi of die warring parties and die international community ofnationstates . On occasion, die conventions strived to distinguish civilians from soldiers and to restrict warfare to die latter. They also tried to place limits upon the destructiveness of weapons. And the rights of prisoners remained a primary focus of these agreements which, for example, recognized die International Red Cross as an agency ofprisoner assistance. We shouldacknowledge that the Guantanamo detainees are not being held because they are prisoners oftvar, but because they are suspected ofparticipating in a criminal conspiracy. Today, prisoners are defined by die 1949 Geneva Convention Relative to die Treatment of Prisoners of War and die two 1977 Geneva Protocols Additional. The Protocols reflected die evolvingnature ofwar; Protocol I extended the application of the Geneva Convention to include "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racistregimes in exercise ofdieir rightofselfdetermination ." The Protocols addressed what critics saw as a pro-European and imperialist bias in international law, which could be traced to the guidelines established by Vattel . They recognized die rights of guerrillas who fought against colonial or odier occupying regimes. War was no longer limited to conflict between established states. Vattel's view diat international law did not apply to conflicts between savage and civilized peoples —so often used to justifyatrocities against non-European peoples—seemed to have lost meaning. The United States was a signatory to die 1977 Protocols, with die significant reservation diat dieynot prohibit or regulate the use ofnuclear weapons. The United Kingdom was also a signatory, butwith a differentreservation : "it is the understanding ofdie United Kingdom diat die term 'armed conflict' of itself and in its context denotes a situation ofa kind which is not constituted by the commission of ordinary crimes including acts ofterrorism whether concerted or in isolation." The recent "war on terrorism" underscores die seriousness of die British concern. Acts of terrorism most certainly do not come under die law of war. Suicide bombings of civilians carried out by Palestinian fanatics are simply crimes. As Vattel asserted, perpetrators ofsuch acts should be treated as criminals. Today, in die light of...