The Applicability of the Geneva Conventions to the 'Global War on Terrorism'

Abstract:     
Do the Geneva Conventions apply to the Global War on Terrorism (GWOT)? Of course, many object to the suggestion that the laws of war, including the Geneva Conventions, apply to the GWOT. There are three important reasons to question whether the GWOT is governed by the Conventions: (1) adverse legal and policy consequences might follow from characterizing the GWOT as a "war" in the legal sense; (2) terrorist organizations like al Qaeda are not states and conflicts with such entities are materially different from inter-state wars and civil wars; and (3) terrorist organizations enjoy no protection under the rules of war because they do not accept or observe these rules themselves. This Article is organized around a more sustained evaluation of each rationale. I conclude that the Conventions govern some aspects of the GWOT irrespective of the fact that hostilities are directed in substantial part against nonstate actors, irrespective of the fact that hostilities are not formally declared, irrespective of whether the "war model" of counter-terrorism is advisable, and irrespective of whether the terrorist groups accept or observe the rules of war themselves. The text, drafting history, and purpose of the treaties, properly understood, strongly support these conclusions.

Number of Pages in PDF File: 33

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