Terrorists and the Geneva Convention

White House counsel Alberto R. Gonzales writes in USA Today about the legal status of terrorists.

Although Afghanistan is a party to the convention, the president determined that the Taliban fighters were not entitled to POW status under the convention. It provides that combatants must, among other things, distinguish themselves from civilians, which the Taliban clearly did not. While determining that al-Qaeda and the Taliban were not entitled to treatment as POWs, the president, nevertheless, reaffirmed that our armed forces were to treat al-Qaeda and Taliban detainees at Guantanamo Bay, Cuba, humanely and, to the extent appropriate and consistent with military necessity, in keeping with the principles of the Third Geneva Convention.

Terrorists, and the Baathist insurgents in Iraq, clearly are not following the Geneva conventions and as such are not entitled to POW status. That does not necessarily mean we should not treat them humanely, but it does mean we can do pretty much what we want without violating international law (our armed forces still must follow US laws). In WWII it was common to summarily execute any combatants who were not following the Geneva Convention. I am not suggesting that this is what we should do, but to a certain extent, if you make promises of special treatment based upon following certain rules, and the other side chooses not to follow those rules giving them special treatment anyway is counterproductive and encourages enemies not to follow those rules.