> It seems that the best description for the situation is
> "no controlling legal authority."
>
> mbs
>
Not so, Max.
Justin, I think, correctly pointed out earlier that customary international law controls. This very question has been, in fact, one of the most developed areas of customary international law. In World War Two the question was posed with the invasion of the Soviet Union by Nazi Germany, since the USSR had never subscribed to the 1929 Geneva Convention. The USSR on July 1, 1941 issued a decree to its troops concerning the treatment of German POWs which followed the principles of universally binding international law and largely also the 1929 Geneva Convention. This characterization of the Soviet decree is not mine, but a paraphrase of a famous memorandum drafted by Count Helmuth von Moltke of the legal department of the Abwehr (Counter-intelligence) of the OKW (high command), sent on September 15 1941 to the OKW head, Field Marshal Wilhelm Keitel, by Admiral Canaris, the head of the Abwehr.
The problem that was upsetting von Moltke was the the OKW regulations did not extend to Soviet POWs the protections of customary international law. The measures taken by the Nazis were in fact in gross violation of the standards contained in the Geneva Convention and even provided for the execution of captured prisoners by military tribunals (the famous "Commissar Order"). Keitel wrote on the margin of the memorandum "These reservations apply to the soldierly concepts of chivalrous war! Here we are dealing with destroying an ideology. Therefore, I approve the measures and authorize them." The Nuremberg tribunal took these marginalia into account in considering the sentence to be given Keitel. He was hanged.
The main source on this is Alfred Streim. _Die Behaildlutig sowjetischer Kriegsgefangener im "Fall Barbarossa": Eine Dokumentation._ Heidelberg and Karlsruhe: C. F. Miffler Juristischer Verlag, 1981.
Ther standards contained in the Geneva Convention constitute in 2002 customary international law, and govern the treatment of prisoners taken in war. If von Rumsfeld and his Generals fail to extend the protections of the Geneva Convention to these prisoners they are in violation of customary international law, just as Keitel was. As an experienced defense counsel I would advise them not to write on the margins of the memoranda submitted by any officers with the decency and courage of von Moltke, if there are any.
john mage