One of the most striking developments of the post-cold war era has been the shift in our understanding of war itself. This most ancient of human behaviors has literally taken on a new definition. The 1985 edition of Webster's Ninth New Collegiate Dictionary described war as "a state of usu. open and declared armed hostile conflict between states or nations."
How shopworn that formulation seems today. Warfare in the 21st century is increasingly the domain of non-state actors - of tribes, cells, clans, and networks. As the nature of war undergoes significant change, so, too, must the laws of war.
Of course, the very notion that warfare - an activity that necessarily entails premeditated homicide and the intentional destruction of property - could be channeled or civilized by statute has always been a bit problematic. Yet there is a long and distinguished history of such legislation, and it has made a difference.
These laws, which include the Geneva Conventions, the Hague Regulations, and other treaties, have been developed and refined over the centuries to reflect changes in warfare and humanitarian standards. Six hundred years ago, few would have objected to King Henry V's order, immortalized by William Shakespeare, that "every soldier kill his prisoners." But today, that directive would be justifiably disobeyed and universally condemned, because slaughtering prisoners is a recognized war crime.
The last major revision to the laws of war took place in Geneva in 1949, more than a half-century ago. Today, the world needs new rules of war that reflect a world in which "combatants" may wear jeans and sweatshirts instead of uniforms with distinctive insignia. The United States, as the world's superpower and greatest military force, should lead the charge to revise the laws of war to address today's threats.
The Geneva protocols offer little guidance for the definition or treatment of terrorists. Beginning with the Military Commissions order in 2001, the Bush administration has attempted to fill the gaps in international law by developing rules for the treatment, detention, and prosecution of "enemy combatants" belonging to Al Qaeda and the Taliban. The purpose was to distinguish these combatants from traditional soldiers, and deny them prisoner-of-war (POW) status.
The Geneva Conventions grant POW status to those who abide by the laws of war, operate pursuant to a chain of command, wear distinctive insignia, and carry arms openly. By contrast, terrorists gain their lethal advantage precisely by blending into the populace, concealing their weapons, and blurring their chain of command - if such a chain even exists in the first place.
POW status is important for those captured on the battlefield, because it confers many benefits and protections - including guarantees of humane treatment, medical care, physical exercise, advances of pay, and freedom to practice one's religion. …