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
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
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
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. …