The recently Leaked DOJ memo justifying the Obama administrations policy on targeted killing of US citizens in the war on terror cites commentaries on the Geneva Conventions to justify killing Americans without due process:
…The Supreme Court has held that the military may constitutionally use force against a U.S. citizen who is a part of enemy forces. … Like the imposition of military detention, the use of lethal force against such enemy forces is an “important incident of war.” … International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug. 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II) § 4789 (1987) (“Those who belong to armed forces or armed groups may be attacked at any time.“); … Accordingly, the Department does not believe that U.S. citizenship would immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force abroad authorized by the AUMF or in national self-defense.
It is nice to pick and choose your citations. If you go to the actual text of section 4789 of the cited document you can get the full context:
…4789 Those who belong to armed forces or armed groups may be attacked at any time. If a civilian participates directly in hostilities, it is clear that he will not enjoy any protection against attacks for as long as his participation lasts. Thereafter, as he no longer presents any danger for the adversary, he may not be attacked; moreover, in case of doubt regarding the status of an individual, he is presumed to be a civilian. Anyone suspected of having taken part in hostilities and deprived of his liberty for this reason will have the benefit of the provisions laid down in Articles 4 (Fundamental guarantees), 5 (Persons whose liberty has been restricted), and 6 (Penal prosecutions).
I have added emphasis to a different part of the section as it struck me upon reading. Anyone who has been paying attention to the reporting surrounding the drone strike campaign that the Obama administration has conducted will recall the controversy over the low numbers of civilian casualties that were initially reported to be associated with the strikes. It eventually was revealed that the low civilian casualties were the result of a policy whereby any man of “fighting age” found to have been killed as part of a strike was presumed to have been an enemy combatant.
The New York Times, covering the drone strikes discovered that the administration
“in effect counts all military-age males in a strike zone as combatants … unless there is explicit intelligence posthumously proving them innocent.”
By this logic if they carpet bombed a boys high school they could celebrate killing a nest of terrorists.
It goes without saying that this is directly in conflict with the Geneva Convention commentary cited above
So when it comes to justifying the killing of US citizens without due process – the government uses one line from a Geneva Convention reference – and yet ignores the full context of that reference when conducting the actual drone strike program.
The Geneva convention commentaries are not binding legal documents, however if the administration is going to use them to justify unconstitutional powers it may want to read through the whole context to make sure it doesn’t undermine it’s other claims.