Here are the problems - combined with some answers: The law by JMM as it should be.

1. Revisit GC III and seriously look at the interplay between Art. 2 (common to all GCs), Art. 3 (also common to all GCs), and Art. 4 (PW/POW status) for detainees, whether in a "battlefield" situation such as Astan or in a "non-battlefield" situation. On these provisions, hinges the status of detainees. See here (posts ## 13-20) and here (post # 33) for some discussion re: AQ and Taliban in Astan.

2. Once the rules to determine status are set - these will be the same whether one is in the Law of War (military) or the Rule of Law (domestic), we have to set the rules for separating the wolves (in sheep's clothing), the goats and the sheep. Note that rarely will we be dealing with a genuine GC III, Art. 4 detainee (a PW/POW) - in the case of such as AQ and Taliban, Art. 2 will flow to Art. 3. When we get there, we find that armed combatants have the right to be tried by a competent tribunal before execution, for example. Other provisons of GC III and IV also require a similar trial if the detainee claims PW/POW status or civilian status.

3. What is a competent tribunal is basically a least common denominator test based on the standards of civilized nations. Let us assume arguendo that the UN members are civilized nations; and then determine the procedure that is common to all of them - tossing out those aspects of due process that are NOT shared by all. We will then have a minimum standard.

4. Then, we should examine the alternatives, which could range from: (a) an immediate hearing before a board of competent persons (the old-fashioned field officers board comes to mind) with no appeal; to (b) a full blown adversarial, judicial process (such as the UCMJ or the Euro criminal system).

5. Collect and preserve all the evidence concerning each detainee in one dossier with a back-up copy in a different place. Sounds simple, but it has been a problem. At least one of the "War Crimes" cases I've reported will probably be tubed because the initial evidence (definitely collected by the military, probably admissible, and quite possibly enough to convict) has been lost in the process.

6. Revisit the application of formal extradition to persons who flunk GC III, Art. 2 and fall into Art. 3. If they have limited rights under Art. 3, no logic exists to grant them greater rights just because they have to be rendered from one country to another. However, even here, a preliminary hearing seems required (under GCs) to establish "probable cause" of their status. Again, we can go to a least common denominator test based on the standards of civilized nations.

7. Admissibility of evidence is also not going to be a problem since our (US) exclusionary, privilege and hearsay rules are not common to all civilized nations - in fact, we are in the definite minority there. The general rule for admissibility of evidence is the "totality of circumstances" - evidence is presumed admissible with objections going more to the weight that will be given it. The other side of the coin is that all evidence (inculpatory and exculpatory) must be disclosed - our (US) Brady doctrine, which is fundamental due process because it prevents innocent persons from being convicted.

8. All these bets are off if US citizens are concerned - both JJ. Roberts and Scalia have made that clear enough in several cases.

PS: - if all else fails, simply shoot the buzzards as propounded by Gary Berntsen in his new book, which is reviewed here.

Having taken the bit in teeth, you all can now bite me in the ass or other parts of the equine anatomy.