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Look, I hate the ideas of the likes of Yoo and Feith as much as anyone. I'm not here to put forward all their legal opinions as correct. I'm simply saying that, legally, either the GCs apply to a situation or they don't. Claiming that they apply when they don't is simply incorrect and sloppy thinking.
I put forward the argument that the GCs themselves don't directly to apply to our conflict with al-Qaida (although they do apply to us in our armed conflicts with other countries). Just because the GCs do not apply DOES NOT mean that there isn't some OTHER law, international or otherwise, that DOES apply! I'm saying that you are simply pointing to the wrong law!
The only possible way that I see that the GCs apply to our conflict with al-Qaida is when we are in armed conflict with another High Contracting Party (CA2). Since we are not, then pointing to the GCs as governing law today is simply incorrect.
Even if we still were in conflict with another HPC (like we were recently in 2002 and 2003 in Iraq and Afghanistan), GCIV explicitly says if captives are not nationals of the opposing HPC, then GCIV protection doesn't apply.
The only possible coverage the GCs could provide would be CA3 and would depend completely on the interpretation of the clause "not of an international character." If CA3 was meant to be binding at all times and under every circumstance of armed conflict, then why was this dependent clause added? Why doesn't CA3 instead simply say:
"In the case of armed conflict occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following:"
and why doesn't CA3 precede CA2 to reinforce that it takes precedence and governs ALL situations of armed conflict for HPCs?
