The Geneva Convention is an agreement within which are guidelines by which a country whose people are captured during warfare may address to the captors the matter of how such captives ought to be treated.
Now --- "by convention" --- the country which is the plaintiff, so to speak, may request of others within the agreement, The Geneva Convention, to intervene though the fellow signators may not be participating belligerents; but such intervention is to proceed only on the point of the treatment of the captives.
However, setting that aside for the moment, because I am going to research it and get back to you all on the topic ... it is important here to note that the behavior of the captives has very much to do with their status; those who conducted warfare may be distinguished from those who conducted warfare in addition to criminal activity, or absent warfare they conducted criminal activity --- either way, criminal activity FOR WHICH THERE IS EVIDENCE; even IF they are prisoners of war, they may be tried in the courts of the captors and then punished; in addition to which, if repatriated, such captives' authorities of record may also try them for the crimes when particularly heinous.
There is a major difference between what they might be made out to be, in contrast, again, to what they actually did.
Scenario: country A warring against two military powers, B-1 and B-2, which are themselves in contest for achieving government power or foreign territory, may or may not choose to treat captives from B-1 and / or B-2 as prisoners of war. A settled geo-political nation-state is not a requirement. Furthermore, the Geneva Convention guidelines are not a requirement.
That convention bears in the event of two of its signators becoming belligerents, in which dispute, again, one of the two can [supposedly] rely upon other signators to bring pressure upon the other belligerent to treat "the party of the first part's" people under the agreed guidelines. But non-signators do not have the weight in appeal to the body of signators, which is the "luxury" of the signators, and the non-signators' people who are taken captive are more at the mercy of the captors.
But nowhere in this situation is a prohibition upon the captor under which the captor is prevented from treating the captives as prisoners of war.
The overall guide from out of history, is whether or not there is, or is not, warfare --- that's the key word.
Captives taken during warfare may be treated by the captors as prisoners of war; but, absent an agreement on treatment, the captives' authorities of record have not much of a case to demand how the captives ought to be treated. (However, THAT hardly prevented the Red Chinese and North Koreans from making all kinds of demands with regard to the Korean War.)
I'm not talking about whether or not I like the ideas nor what we ought to do or not do; rather, there is plenty of historical precedent for regarding captives taken during warfare to be prisoners of war, especially when absent an agreement on treatment.
Furthermore, it is a matter of precedent that regarding combatants at war against the U.S., permits the U.S. to NOT immediately submit captives to the justice system of the U.S., and more pointedly, let us say should a known combatant be spotted by our warriors, that combatant can be shot dead on sight respecting the general rules of warfare. Whereas a pirate known as a "terrorist" or "brigand," actually has some protection under the law when spotted, and an effort must be made to affect an arrest, respecting due process.
Treat them as combatants and they can be shot on sight, but treat them as "terrorists," and discover that we haven't a sufficient body of law --- OTHER THAN CRIMINAL JUSTICE --- to deal with them (and "efficiently," if that is your desire).
To wit: presently, if they are not prisoners of war, we are in a whole lot of trouble, because then the fact of their captivity follows that they have actually been arrested, and they MUST be permitted legal counsel, etc. (you know what THAT means).The Constitution does not authorize the U.S. government to hold a person in legal state-less-ness.
That, meant for our protection from excess and / or arbitrary and / or tyrannical government, is why President Lincoln "suspended" the Writ of Habeas Corpus --- so that he would not be troubled, immediately, by this particular problem. he thought he needed to hold people without lawyers banging down the doors.
Well, many Freepers have been real unhappy about that particular suspension of our Constution under President Lincoln; and he has taken quite a beating here.
Well, I propose to be consistent with our adhering to the Constitution, in spite of how uncomfortable it may be in these circumstances.
Because there is in fact warfare, unsettled, between those who would hurt us and us; if we treat them in the field as people who have for the most part committed crimes, then we have to accord them due process under our criminal justice system(s); but if we treat them as combatants, until they surrender, they are fair game in the crosshairs; and even when they surrender, though they be prisoners of war, we have plenty of precedent for still prosecuting those against whom we have evidence of their having committed criminal activity.
You can find on the Internet, quite a lot of history about various German and Japanese P.O.W.'s whom we introduced to rope because of their criminal, usually on a large scale, slaughter of people who were not combatants.
Sincerely,
First_Salute