SSRN-The Status of Terrorists by John Yoo, James Ho

Okay, I have now read Professor Yoo's article that argues that Al Quaeda and Taliban members are "illegal combatants":

SSRN-The Status of Terrorists by John Yoo, James Ho

I hope the arguments that Professor Yoo and his co-author put forward in this article are not the same ones that Professor Yoo relied upon in his memos. I am not convinced.

Stripped of the pseudo-scholarship of copious footnotes and profession jargons, Professor Yoo's arguments amounts to:

Neither the Taliban nor Al Quaeda members satisfy what Professor Yoo called the "four customary conditions" to be considered legal combatants. Professor Yoo offers some analysis with respect to Al Quaeda members, but basically concluded with no supporting facts that Taliban members too were not legal combatants. But that's only a minor point.

Then Professor Yoo made an illogical leap to argue that, as illegal combatants, they do not have the right to invoke protection under the Geneva Conventions. I am no legal expert on the Geneva Convention, but I will accept the following representations by Professor Yoo as true:

1. The Convention calls for all combatants to protect and to avoid harming civilians.

2. Legal combatants are given immunity from prosecution for conduct consistent with the laws of war.

3. Specific protection is spelled out to protect prisoners of war.

Professor Yoo made the argument that Al Queada members (and for the sake of this analysis, I would also assume as true of the Taliban members) who often disguise as civilians and inflict harm on civilians are not legal combatants and thus are not entitled to ALL protection under the Geneva convention, and in particular they are not entitled to protection afforded prisoners of war.

This position is illogical. The Geneva Convention, as described by Professor Yoo, is provided to first and foremost protect civilians. To protect civilians, an incentive is given to combatants to clearly identify themselves as non-civilians in the form of an immunity from prosecution for their conduct in warfare, provided that the conduct is within what is tolerated as "lawful acts". From that premise, I would agree that the illegal combatants cannot avail themselves immunity from prosecution.

The prisoners of war provision, however, goes to different values. It stands to reason that the prisoners of war provision arises out of a recognition that combatants humans too and should be treated humanely. The Geneva Convention thus sets forth a minimum set of protection that is provided even to those who voluntarily participate in inflicting the horrors of war. It is not a privilege to reward participation in hostilities, but a limit on the punishment that can be imposed on a human person for participation in hostilities. Thus, nobody would seriously argue that a civilian engaged in peaceful protest againt an occupying force should be given less protection than a prisoner of war because he is not a "legal combatant." As the prisoner of war provision is based on human right concerns, I can see no rational justification why a legal technicality that declares a combatant illegal takes him out of the protection of basic human rights.

Thus errs Professor Yoo.