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4 Eyes on the ICC 11 (2007)
Victims of Convenience: How Redefining Combatant Status Endangers U.S. Soldiers

handle is hein.journals/eyesicc4 and id is 17 raw text is: VICTIMS OF CONVENIENCE:
HOW REDEFINING COMBATANT STATUS ENDANGERS U.S. SOLDIERS
]eff W. LeBlanc*
The treatment of prisoners of war and of the civilian population of occu-
pied areas is the most certain measure and index of the civilization of a
people and of a nation.-Pope Pius XII'
I. INTRODUCTION
Following the terrorist attacks of September II, 2001, the Bush administration
launched what has become known as the Global War on Terror. In the ongoing fight
against terrorism, the United States has reinterpreted some of its existing international
treaty obligations to meet the shifting demands of the War on Terrorism's fluid battlefields.
Of particular significance is the US's new relationship to the 1949 Third Geneva Conven-
tion Relative to the Treatment of Prisoners of War. The Bush Administration has reinter-
preted how a combatant is defined in regards to the application of Prisoner of War status
under the Third Geneva Convention. Prior to this new reading of what constitutes a com-
batant, combatants were granted Prisoner of War status under the Third Geneva Conven-
tion by virtue of membership in the armed forces of a High Contracting Party to the Con-
ventions.3 Prisoner of War status ensures that the prisoners are not tortured and that they
receive the basic necessities. However, the Bush Administration has restricted how indi-
viduals captured by US forces can acquire Prisoner of War status. This paper shall demon-
strate that this reinterpretation is shortsighted, dangerous, and jeopardizes the safety of
United States military personnel by providing future enemies with precedent for denying
US military personnel Prisoner of War status and protections. By restricting Prisoner of
War status beyond conventionally accepted parameters, the United States risks having its
own servicemen and women exposed to increased danger if apprehended by the enemy
since captured US military personnel may fail to qualify as Prisoners of War under the US's
own new interpretation. For example, if US soldiers were out of uniform or concealing
weaponry, they could theoretically find themselves labeled unlawful enemy combatants
for failing to meet combatant definitional criteria, subjecting them to their enemy without
POW status.
The international treaties that are supposed to legally define POW status and other
guidelines for war include the Geneva Conventions of 1949 and their Additional Protocols
of 1977.4 While it may seem surprising that an activity as destructive and disruptive as war
is governed by law, this concept is almost universally accepted. War has been subject to cer-
tain norms, legal and otherwise for much of human history. Societies around the world have
seen war as a necessary or even normal state of affairs, while simultaneously recognizing the
*JEFF W. LEBLANC, JD (University of La Verne, 2007), is currently a clerk in the San Bernardino
County (California) District Attorney's Office.
' HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT (1977).
2 Third Geneva Convention Relative to the Treatment of Prisoners of War, 12 Aug. 1949, 6
U.S.T. 3316, 75 U.N.T.S. i35.
3 Telephone Interview with Major Sean Watts, Professor, International and Operational Law
Department, The Judge Advocate General's Legal Center and School, in Charlottesville, Virginia (19
Mar. 2007).
4 See generally First Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, 12 Aug. 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Second Geneva
Convention for the Amelioration of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea, 12 Aug. 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Third Geneva Convention Relative to the Treat-
ment of Prisoners of War, 12 Aug. 1949, 6 U.S.T. 3316, 75 U.N.T.S. i35; Fourth Geneva Conven-
tion Relative to the Protection of Civilian Persons in Time of War, 12 Aug. 1949, 6 U.S.T. 3516, 75
U.N.T.S. 287.

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