The rules of war

The Spanish attorney general will recommend against investigating torture allegations directed at senior Bush administration officials. Spanish judge Baltazar Gazon had proposed just such an investigation; the attorney general said, "if one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out." (Thanks to CNS News.)

The Spanish attorney general framed his argument in terms of 'prisoners of war,' implying that Al Qaeda fighters were just like regular soldiers. To see why this makes no sense, here's a parallel argument by FPRI's Mackubin Owens, regarding pirates. (Thanks to Jeff.)

Owens notes since Roman times pirates have been considered as outlaws - people to whom the regular laws did not apply. "The Romans distinguished between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi - pirates, robbers, brigands, and outlaws - 'the common enemies of mankind.' The former, bellum, became the standard for interstate conflict, and it is here that the Geneva Conventions and other legal protections were meant to apply. They do not apply to the latter, guerra - indeed, punishment for latrunculi traditionally has been summary execution, although the extreme punishment was not always exacted. The point is that until recently, no international code has extended legal protection to pirates."

President Bush received a tremendous amount of abuse for insisting that fighters captured in Afghanistan and elsewhere were not 'enemy combatants'; that they should be treated more like outlaws, or pirates. European governments are, however, indirectly confirming his assessment by refusing to take custody of Guantanamo internees. It's not just a question of how dangerous these individuals are. Saying that terrorists or pirates are 'legitimate' then raises a whole series of difficulties as to how they should be treated.

As Owens points out: "... European navies have been advised to avoid capturing Somali pirates since under the European Human Rights Act, any pirate taken into custody would be entitled to claim refugee status in a European state, with attendant legal rights and protections." And, indeed, the British navy last year warned that it would not arrest pirates, simply because it didn't want to have to deal with their subsequent claims.

European governments may be squeamish about U.S. detainees, but they have arrested and prosecuted terrorists. With the notable exception of the French, though, they're unlikely to take on the pirates. That will require U.S. leadership.