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doesn't that indicate that the GCs are not conditioned as you say? --PDA
The relevant sentence says: "They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."
which is 100% equivalent to:
"If said Power accepts and applies the provisions of the present Convention, then the Powers who are party thereto shall be bound by the Convention in relation to said Power."
which is clearly a conditional statement. If the condition does not hold, then the statement is false and so Powers party to the Convention would not be bound by it in relation to such a power.
Setting aside the fact that al-Qa'ida is not a "Power," --PDA
Your comment is another potentially valid objection to the GCs applying to al-Qaida at all. The GCs were meant to apply to warring nation states and so may not apply to our conflict with al-Qaida at all. It would of course still govern our actions in countries such as Iraq and Afghanistan, which are high contracting party to the GCs.
Finally, I found another legal objection to the GCs governing how we treat members of al-Qaida. Let's say that the GCs do govern our conflict with al-Qaida. Then according to almost every ruling, captured members would have to fall under one of the 4 GCs. I think it is clear that they do not qualify for POW status and therefore the first 3 GCs do not apply, so they are only left with the 4th.
However, the 4th has an explicit clause where it says it doesn't apply in article 4:
"Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are."
AFAIK, we have normal diplomatic relations with most of the countries (maybe save Iran), including Iraq and Afghanistan, from where these people are coming. So, again, I think a rather strong argument can be made that we are not legally bound by the GCs wrt our treatment of these people once they are determined not to be POWs by a competent court.
