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August 05, 2007

Law Lesson: Unlawful Combatants [Gabriel Malor]

One of the things I’ve noticed over the last three or four years of national debate about the War on Terror is that it is oddly common for people to ignore international law—even when it supports their arguments. This has been a pet peeve of mine for a while, simply because I do not like to see anyone leave a good argument lying on the table.

With the hope that you never leave an argument alone simply because it’s about a sticky subject, here are some simple, straightforward, and useful facts about international law that may help you out the next time you’re talking about current events.

Warning: This one got lengthy. My apologies. Also, see the update at the bottom.

Current Event That Prompts Discussion: The Bush Administration attempts to put a combatant-detainee to military commission. It makes a big splash in the news and on blogs. That day you’re at the coffeepot (your old friends at the watercooler having decided to shun you because of your irritating command of international law on the topics of “illegal wars” and “indefinite detentions”) when one of your co-workers decides to take the opportunity to exclaim on the matter.


Leftist Commentary #1: If you actually look at the Geneva Conventions it never mentions “illegal” or “unlawful” combatants.

Your Answer: And? (I usually blink at them a few times to emphasise that I’m certain that they haven’t made a point.) You’re right, the terms "unlawful combatant" and "illegal combatant" do not appear. That’s because the Geneva Conventions describe classes of people who get special protection, not those who don’t get protected. Look, each convention protects a different group: the first and second conventions protect wounded or sick servicemen, the third protects prisoners of war, and the fourth protects civilians. Each convention contains a description of just who falls into its protection.

Some of the combatant-detainees do not fall under any defined class. They’re obviously not wounded or sick servicemen so GenCons (I) and (II) are out. Some clever folks have tried to pigeonhole combatant-detainees into GenCon (IV) which protects civilians, but Article 5 of that convention says that a person “suspected of or engaged in active hostilities” has no right to claim protections.

So that brings us right back to where we really thought we’d be all along: The Geneva Convention (III) relative to the Treatment of Prisoners of War. Each combatant-detainee should be adjudged (Geek Points if you actually use the word “adjudged”) according to whether they meet any of the convention’s definitions of POW (there are six!). Those that do are referred to as “protected persons” or “lawful combatants” because they’ve managed to participate in the internationally approved methods of warfare. They get protected, lucky them.

Those combatant-detainees that don’t meet any of the convention’s definitions of POW are simply out of luck because they engaged in warfare in a manner that exceeded or avoided the rules of international armed conflict. They are called “unlawful combatants” and the protections that POWs get don’t apply to them. (Note, however, that other, lesser, protections apply to everyone at all times. We can talk about that later. We’ll also have to talk another time about why there is such a thing as rules of warfare at all; the short answer is that the rules exist and should be upheld because they ultimately protect civilians from the atrocity of violent conflict.)

Leftist Commentary #2: (Probably both weary and wary now, your coffeepot interrogator may continue.) But I’ve heard that the POW definitions include things like militias and people who rise up to defend their country from invaders. We invaded their country, fer cryin’ out loud, and you’re saying that they weren’t even allowed to defend themselves.

Your Answer: No. I’m saying that they were only allowed to defend themselves in accordance with the laws and customs of war (those pesky rules again, God love ‘em). Here, look at this. (You’ll want to pull out your cheat-sheet for this, because unless you’re really into this stuff there’s no reason for you to memorize the six categories of POWs.) The GenCon (III) protects only these groups:

(1) Members of the armed forces;
(2) Members of militias, other volunteer corps, and organized resistance movements...provided that such fulfill the following (cumulative) conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Persons who accompany armed forces without being members (e.g. journalists, non-military medics, etc.)
(5) Members of the merchant marine and crews of civil aircrafts.
(6) Inhabitants of a non-occupied territory who on approach of the enemy spontaneously take up arms to resist. (Levee en masse.)

You mentioned militias and levee en masse (that’s just the fancy term for a spontaneous uprising; use it, you’ll sound smarter than I know you are). Well, militia members have to meet those listed criteria. The Taliban, Al Qaida, and Iraqi insurgent groups do not. And levee en masse is limited to “non-occupied territories” and “spontaneous” uprisings, not uprisings that go on for four years.

Simply put, these fellows aren’t POWs. The only group of prisoners that we’ve encountered in the War on Terror which are certainly POWs are captured Iraqi Republican Guard members and they’ve long since been released or turned over to the Iraqi government in the case of potential criminal behavior.

(Now, smile kindly, tell them to stop believing everything they read on dKos, and demand that they stop hogging the non-fat creamer.)

Update on my posts: Thanks for your comments. Those that commented in the “Illegal Wars” post may want to check back there for my reply if they haven’t already done so. I’m always happy to dig into these issues; for those that want to get into more specifics about them, I’ll try and keep an eye on the comments and respond as able.

If Ace decides to continue the Open Blog Weekend idea, I’ll be back with posts on other international law topics including just war theory, preemptive war, and the Supreme Court cases Hamdi and Hamdan. I’ve also got a response in the works to the rather forceful commenter in my Air Travel post and would like to broach some domestic law issues including so-called “anchor babies,” habeas corpus, and the interface between warfare and the criminal justice system. Unfortunately, I have some obligations that will keep me from doing anything more than checking in occasionally for the duration of the day.

My thanks go out to the moron-commenters here and, of course, to the Moron-in-Chief for letting me post on his blog.

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posted by xgenghisx at 04:58 PM

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