National Review editor Rich Lowry labeled a January 10 item by Media Matters for America “confused” for noting that Lowry and other conservatives had falsely suggested that the Geneva Conventions apply only to prisoners of war (POWs). The item noted that these conservatives ignored other protections -- especially the Fourth Geneva Convention (GCIV) and so-called “common Article 3” -- that may apply to so-called “unlawful enemy combatants” held at Guantánamo Bay, Cuba, and elsewhere. Discussing GCIV in a January 14 post on National Review Online's weblog, The Corner, Lowry insisted: “Geneva IV is about protections for civilians. Its title is 'Geneva Convention Relative to the Protection of Civilian Persons in Time of War.' Nothing in its text or negotiating history suggests it is meant to apply to unlawful combatants.” But Lowry cited no international legal statutes to justify this alleged distinction between civilians and “enemy combatants” -- probably because “unlawful enemy combatant” is largely undefined in international law.

Indeed, the term is nowhere to be found in the Geneva Conventions, but not because the treaty's authors intended to exclude certain prisoners from protection. According to the International Committee for the Red Cross's (ICRC) Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, 1958), under international law, all detainees are either POWs, civilians, or medical personnel -- regardless of whether a particular leader chooses to apply a particular term to them:

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, a civilian covered by the Fourth Convention, [or] a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can fall outside the law.

Lowry said of the Media Matters item: “It argues that, even if Al Qaeda members aren't entitled to protections as POWs under Geneva III, they are protected under Geneva IV.” But the item never claimed to settle the question of how and whether Geneva Conventions apply to so-called “enemy combatants”; rather, it noted simply that it was misleading to suggest, as Lowry and others did, that once it is determined that detainees held at Guantánamo Bay are not POWs, the Geneva Conventions are irrelevant. The January 10 item referred back to a December 3 item (a fuller discussion of the applicability of the Geneva Conventions to Al Qaeda detainees) that cited a 2003 legal analysis by the ICRC --the organization that pioneered the concept of international humanitarian law and monitored compliance with the Geneva Conventions for more than 140 years -- titled “The legal situation of 'unlawful/unprivileged combatants.'” ICRC's analysis concluded that “unlawful combatants” are certainly entitled to “the right to 'humane treatment' as defined in Articles 27 and 37 [of GCIV], and thus the prohibition of torture and ill-treatment; as well as the fair trial rights contained in Articles 71-76 [of GCIV]” (p. 66). It also concluded that they may be entitled to additional protections under Part III, Sections 1, 2, and 4 (p. 63).