There’s an interesting article up by George Friedman at Stratfor discussing the difficulties of trying Khalid Sheikh Mohammed in a civilian court of law:
“Imagine that in addition to stating that the United States was at war with Japan, Franklin Roosevelt also called for bringing the individual Japanese pilots who struck Hawaii to justice under American law. This would make no sense.”
But, of course, terrorist members of al Qaeda are not soldiers under international law. Friedman spells it out quite clearly:
“International law is actually not particularly ambiguous about the status of the members of al Qaeda. The Geneva Conventions do not apply to them because they have not adhered to a fundamental requirement of the Geneva Conventions, namely, identifying themselves as soldiers of an army. Doing so does not mean they must wear a uniform. The postwar Geneva Conventions make room for partisans, something older versions of the conventions did not. A partisan is not a uniformed fighter, but he must wear some form of insignia identifying himself as a soldier to enjoy the conventions’ protections. As Article 4.1.6 puts it, prisoners of war include ‘Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.’ The Geneva Conventions of 1949 does not mention, nor provide protection to, civilians attacking foreign countries without openly carrying arms.”
“Under the Geneva Conventions, [Mohammed]’s actions in organizing the Sept. 11 attacks, which were carried out without uniforms or other badges of a combatant, denies him status and protection as a POW.”
Clear, succinct, and what conservatives have been saying for the past eight years, which pretty much ensures that no one in the Obama Administration will read it.
“The real problem here is international law, which does not address acts of war committed by non-state actors out of uniform. Or more precisely, it does, but leaves them deliberately in a state of legal limbo, with captors left free to deal with them as they wish.”
The article goes on at length to explain taht it is equally impossible to try him under civilian law in a “fair” manner, and how international law has woefully failed to keep up with the realities of modern warfare and terrorism.
Read the whole thing.