Feisty Mouse said:
lol - just like we decided that the Geneva Convention no longer suits our purposes?
The Geneva Convention specifically recognizes that many of the principles it lays out are not binding in certain particular cases. (This is one of the critical ways in which the Geneva Convention differs from the ICC charter.) There are three main exceptions which apply to most but not all of the provisions of the convention: they broadly don't apply to nations who are not signatory; specific ones don't apply to nations who are themselves violating them even if they are signatory, and some specific ones regarding treatment of enemy soldiers don't apply to enemy combatants who do not formally wear uniforms or formal insignia or other clear and distinct indication of membership in the military.
The reason for the exceptions is to prevent free riding. If a signatory was bound by the rules of the convention even when fighting against an opponent who didn't follow them, the signatory would be at a distinct disadvantage, and this would give nations an incentive to not join the convention. But if the protections laid out in the convention only apply to nations who are themselves members of the convention and who also follow the convention, then there's a strong incentive for nations to join it and obey it.
The primary goal of the Geneva Convention was to try to reduce the horror and excessive destruction of war, and that goal could best be achieved by trying to induce as many nations as possible to join the convention and to obey its restrictions. The exceptions were deliberately included in the treaty so as to maximize the number of nations joining it and obeying it.
(One of the many deep flaws of the ICC charter is that it recognizes no similar exception for its long list of war crimes and crimes against humanity. If one side uses nerve gas and then the other responds in kind, under the Geneva Convention only the first has committed a war crime, but under the ICC treaty both have.)
The convention doesn't forbid signatories from obeying its provisions when dealing with those who violate it, but rather makes clear that not obeying the convention in such cases is not a violation of the convention. The degree and kind of obedience to the convention in such cases is left up to the signatory. As a practical matter, the US does tend to follow many of the provisions of the treaty anyway even in such cases, because it's in our best interest to do so. But there can be specific instances, highly unusual circumstances, where we are permitted to ignore the convention and may decide that we would gain more by doing so. This happens to be one of them.
Generally speaking, we follow its provisions when we face enemies who follow it, even if they're not formally signatories to the treaty, but we don't do so when the actual cost to us would be extreme.
The provision regarding lack of uniforms is one of the more important exceptions. The basic idea of requiring formal insignia for combatants is to make it so that the soldiers of each side can differentiate enemy combatants from enemy non-combatants. If the soldiers of one side cannot easily determine whether someone on the other side is soldier or civilian, then there's a much greater likelihood that civilians will be killed. One of the things that those who composed the treaty wanted to try to do was to reduce the slaughter of civilians in war.
Therefore, if an enemy combatant is captured and is not wearing any recognizable insignia or uniform, he is not entitled to any protection at all under the Geneva Convention. He can be executed on the spot without trial, for instance. He is considered to be committing a war crime by fighting without any such insignia, but if he's executed then those who order the execution and those who carry it out are not committing a war crime.
That provision regarding combatants without insignia applies to three major cases: to insurgents (such as to guerrilla action in occupied areas), to soldiers trying to hide among civilians during formal combat, and to spies. The argument for not rewarding each of these cases is the same and is valid; if you grant them protection anyway, you will encourage more of all three with tragic consequences.
