Detaining enemy combatants -- what guidelines?

[Malice]

If the U.S. feels that the Geneva Conventions do not properly apply to those detained as “enemy combatants,” what are the legal and humanitarian norms, guidelines or rules that govern their detention?

Are there any “official” rules governing the U.S. government’s conduct – aside from the those rules the U.S. sets for itself – and if so, who sets them?

Alternatively, are there “unofficial” rules, perhaps by agencies such as the International Red Cross, that are widely respected internationally and may be likely to be used to guide our conduct regarding such detainees?

In either case, I’m specifically wondering: What are those rules? What conduct on our part, if any, do they require?

[ratatoskK]

There’s a related article in today’s NY Times entitled In Terror Cases, Administration Sets Own Rules . An excerpt:

… no one outside the administration knows just how the determination is made whether to handle a terror suspect as an enemy combatant or as a common criminal, to hold him indefinitely without charges in a military facility or to charge him in court.

[clairobscur]

@Malice

Are there any “official” rules governing the U.S. government’s conduct – aside from the those rules the U.S. sets for itself – and if so, who sets them?

Aside from the rules the US sets, there are none. From an external point of view, these people, not being criminals benefiting from the rights enumerated for instance by the article 9 to 11 of the UDHR, nor prisoners of wars benefiting from the protection of the Geneva Convention are plainly arbitrarily detained. They aren’t different from your average dictatorship’s political prisonners.

[clairobscur]

@Malice

In either case, I’m specifically wondering: What are those rules? What conduct on our part, if any, do they require?

If they aren’t prisonners of war, basically, the rights they’re being denied : presumption of innocence, access to an independant court of law, disclosure of the charges brought against them, a lawyer, public trial, etc…

[Diogenes_the_Cynic]

It’s just a bullshit contrivance to avoid having to either follow the Geneva Convention for treatment of POWs or to have to follow due process in a criminal court. There is no process to determine who is or is not an “illegal enemy combatant,” and no way for a detainee to prove he is NOT one. There are no official rules as to how they should be treated becaues it’s a completely phony category in the first place. The US is just making stuff up as it goes along.

[Gfactor]

Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, [or] a civilian covered by the Fourth Convention . . . . There is no intermediate status; nobody in enemy hands can be outside the law.

Commentary to the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War quoted in http://news.findlaw.com/hdocs/docs/padilla/padrums803exlow.pdf (pdf).

So either the Third Convention or the Fourth Convention applies.

The US’s position that it can invent “special categories” that fall between the cracks is unsupportable.