The Third Geneva Conventions set forth rules of warfarel, and in particular to bind signatories to common obligations in the treatment of prisoners of war. Nations signing the treaty are entitled to have their captured combatants treated humanely by other signatories, and in return must provide the captured combatants of signatories with the same standard of humane treatment. If one of the signatories breaks the Treaty by not obeying the rules, then the treaty no longer applies. That’s a fair deal that encourages compliance. Since al Qaeda is not an arm of any state signing the Treaty, and in any case does not abide by the rules set forth by the Treaty, they should not qualify for protection under the Treaty, but the US Supreme court has ruled they do.

The articles on treatment of prisoners are given at http://en.wikipedia.org… The full text is given at http://www.icrc.org…

Prisoners of war are defined as captured members of armies of the signers of the Treaty, and also http://www.icrc.org…:

“(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

© that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.”

Terrorist organizations have not signed the Treaty, and if they had signed, do not in any case conform to any of the cited requirements of the Treaty. Terrorists routinely ignore all requirement for the treatment of prisoners. There is no current mechanism for terrorist organizations to sign independent of sponsoring states. However, I believe that if al Qaeda where to ask to sign, a way would be found. they could alternatively conform to a separate equivalent agreement with the United States. The legal technicalities are not the problem.

There is, however, a separate provision, Article III, for non-international conflicts, “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: …Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: … © outrages upon personal dignity, in particular, humiliating and degrading treatment;…” http://www.icrc.org…

The US Supreme Court ruled that Article III applies to terrorists. “The ruling’s most substantial point is that all non-citizen prisoners are protected by the Geneva Conventions.” http://civilliberty.about.com… and “Even more importantly for present purposes, the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda.” http://www.scotusblog.com…

There is thus no advantage to any foreign power to sign the Treaty when it comes to dealing with the United States. Quite the opposite. If they sign the Conventions, they can lose the Treaty protections if they mistreat American prisoners. However, if they refuse to sign, they are free to cut off the heads of Americans on television while their own POWs are afforded full protection of the Treaty. All that is required to achieve protected status is to avoid wearing uniforms and officially declaring war. Privileged status is better obtained by noncompliance than compliance.

It would be best for the Treaty to be amended by international agreement to make it clear that it does not apply to members of terrorist organizations. The treaty was written at a time when international conflicts were mainly waged by nations having uniformed armies. An international conflict sponsored and promulgated by terrorists was not contemplated.

Other ways of remedying the situation are for the Supreme Court to reverse its decision, or for the Constitution to be amended to place interpretation of treaties in the hands of Congress instead of the Court. Possibly it could be done by passing a law, but the supreme court can declare any law it dislikes to be unconstitutional.

Removing the Treaty as an obligation leaves as a separate question how captured terrorists should be treated. Perhaps they ought to be given more rights than common domestic criminals, perhaps not. That policy decision should be taken from the Supreme Court and placed it in the hands of the elected representatives of the people.