Inter Arma Silent Leges

International law regarding prisoners of war has yet to catch up with the new realities of fighting Islamic terrorism: their combattants are not members of any state's armed forces, yet they are not simply common criminals.

Instead of recommending positive change to international conventions governing the treatment of these people, the anti-war crowd has preferred to shriek incessantly about the "illegality" and "brutality" of the detention of Taliban fighters in Guantanamo Bay.

And now they'll start shrieking that we're following the American example:

Canadian troops in Afghanistan have been told the Geneva Conventions and Canadian regulations regarding the rights of prisoners of war don't apply to Taliban and al-Qaeda fighters captured on the battlefield.

That decision strips detainees of key rights and protections under the rules of war, including the right to be released at the end of the conflict and not to be held criminally liable for lawful combat.

“The whole purpose of those regulations is to know if Geneva applies,” said Amir Attaran, a law professor at the University of Ottawa who has been pressing the Defence Department for details of its detainee policy for months.

The 1991 Canadian regulations — developed during the Persian Gulf war — included provisions to hold tribunals to determine a detainee's status under Geneva if there is any doubt.

Captured fighters don't deserve these rights because this isn't a war between countries, says Lieutenant-General Michel Gauthier, who commands the Canadian Expeditionary Forces Command and thus oversees all Canadian Forces deployed abroad.

“They are not entitled to prisoner-of-war status but they are entitled to prisoner-of-war treatment,” he said, asserting that all detainees are humanely treated.

“The regulations apply in an armed conflict between states, and what's happening in Afghanistan is not an armed conflict between states. And therefore there is no basis for making a determination of individuals being prisoners of war,” he said.

A reasonable policy, and one that matches up with current practice established by the U.S.:treat the detainees as if they were POWs without calling them POWs.

It's the best that can be done until there's a formal review of the Geneva Conventions.

But it's so much easier to slag our armed forces instead of developing solutions to this vexing problem.

Source: Globe and Mail