From what I understand, the Geneva Conventions don't make any mention of "illegal combatants." So we don't know whether they apply or not. Actually, the term "illegal combatant" was coined by the Bush Administration in order to justify their system of detentions. Otherwise, anybody they detained would have to be either a criminal (in which case they are tried under the normal court procedures) or an enemy combatant (in which case the Geneva Convention does apply).
You also quoted only a small part of the applicable section of the Geneva Convention. The definition of a prisoner of war reads as follows:
Quote:
Article 4- Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
- Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
- Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
- that of being commanded by a person responsible for his subordinates;
- that of having a fixed distinctive sign recognizable at a distance;
- that of carrying arms openly;
- that of conducting their operations in accordance with the laws and customs of war.
- Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
- Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
- Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
- Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
- The following shall likewise be treated as prisoners of war under the present Convention:
- Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
- The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.
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As you can see, any number of those items can arguably apply to the illegal combatants in question. I'm looking specifically at 1.3 and 2.1 but I'm not actually a lawyer so I don't know what an attorney might argue.
Also, I've read portions of the Supreme Court decision (not all of it because that thing is HUGE), and there are a couple important distinctions I think you've missed. The court did not exactly say that Geneva Conventions must apply to detained terrorists. What it said was that the treatment and prosecuting of detainees in keeping with the President's war powers must follow the Uniform Code of Military Justice since that is what Congress passed. The Geneva Conventions are written into the UCMJ, so when the Executive detains people, it must follow the established procedures (including open court martials and certain rules of evidence and so on). You are correct that the decision of whether and how to apply the standards of the Geneva Convention to illegal combatants is up to the Congress (at the behest of the Executive). However, the Supreme Court's point is that Congress did not make any decision one way or another regarding the Bush Administration's detainment policies. President Bush decided on his own to veer away from the Geneva Conventions and thus the UCMJ, but the Court ruled that just because Congress took no action on the issue doesn't mean that the President can decide it for himself.
So basically, the Supreme Court ruled that President Bush needed to get permission from Congress in order to treat prisoners in ways that were not in accordance with the UCMJ. As far as this decision is concerned, an act of Congress will cure the problem. Of course, then that will probably bring another lawsuit before the court, but we shouldn't speculate about that here.
So in reality, the Court's decision doesn't have anything to do with enacting a treaty between the U.S. and Al Qaeda. Rather, it is a question of balance of powers and who gets to set our policy. I would also note, by the way, that certain parts of the Geneva Accords are considered to be binding treaties between the U.S. and the rest of humanity. The logic is that the U.S. promised most of the other countries of the world that it would treat prisoners in a certain way and in return other countries promised each other and the U.S. that they would treat all of
their prisoners in a certain way. Whether Al Qaeda itself was a party to the treaty or not is only relevant to portions of the Accords which specifically say that they apply only to signing parties.
P.S. I miss these discussions.