Balkinization  

Wednesday, April 25, 2007

Plea to U.S. Government: when neck-deep in quicksand, stop digging!

Guest Blogger

Gabor Rona
International Legal Director
Human Rights First

Yesterday, the Department of Defense released criminal charges against Guantanamo’s youngest prisoner to be charged, 20-year-old Omar Khadr. The charges provide a clear window into the mess created by the Military Commissions Act of 2006 (MCA). That law fails to distinguish properly among legal frameworks applicable to trials of persons captured in 1) international armed conflict, where international humanitarian law, or the law of armed conflict, applies; 2) non-international armed conflict, where a limited provision of the laws of armed conflict – Common Article 3 of the Geneva Conventions - and international human rights law and domestic criminal law apply; and 3) no armed conflict, where domestic criminal law and international human rights law apply. That failure is most apparent in the MCA’s overly-expansive definition of an “unlawful enemy combatant,” who can be subject to its jurisdiction; it encompasses people who are neither enemies nor combatants and have no business being tried by a military court.

The MCA’s jurisdictional defect is compounded by the procedures it prescribes for military commissions, which do not meet either U.S. constitutional due process standards or fair trial requirements that the U.S. is obligated to respect under international law. The flaws don’t end there. The MCA also purports to restrict federal court review of the military commissions and, worse, to strip detainees of their habeas right to challenge detention. The law was passed shortly before last fall’s elections by a Congress that barely stopped to debate its content or harmful consequences because it was under the thrall of the administration’s claimed urgent need to try the 14 so-called “high value detainees” who had just been transferred from secret CIA detention to Guantanamo. None of the 14 has since been charged.

Khadr’s attorneys have asked the Supreme Court to review the constitutionality of the MCA’s habeas-stripping provision as well as his right to challenge the jurisdiction of the military commissions themselves. The Court will consider the appeal on Friday and has an opportunity to stop the MCA’s corruption of legal frameworks.

Omar Khadr was born in Ottawa, Canada, and was fifteen when he was captured by the U.S. and brought to Guantanamo. It is alleged that he lived with his parents in Osama Bin Laden’s compound in Afghanistan and received weapons training since early childhood. In July of 2002, the compound his family was in was attacked by U.S Special Forces. Khadr is said to have leapt from hiding and thrown a grenade, which killed Sgt. Christopher Speer. Omar was shot three times and left nearly blind in one eye.

More than five years of imprisonment later, he now faces charges under the MCA. The charges against Khadr http://www.defenselink.mil/news/Apr2007/KhadrReferral.pdf
do not allege acts of terrorism, but rather, that he received military training and engaged in hostile acts against American forces that are not unlawful in wartime. The charges exemplify the MCA’s perversion of the laws of armed conflict as well as of the principles of criminal responsibility.

Here’s why the charges are inappropriate:

1. Murder: The charge is killing a U.S. soldier. Under the law of war, the victim is a military objective in armed conflict, so his homicide cannot be considered a “violation of the law of war,” as charges allege. Clearly, the prosecution thinks that proof that the killing was in “violation of the law of war,” as required by the MCA, is satisfied by the alleged fact that Khadr is, in the government’s words, an “alien unlawful enemy combatant.” This term does not exist in the law of armed conflict and cannot be the hook for criminal responsibility for any act that occurred prior to the passage of the law under which Khadr is charged. The law – the MCA – was passed in 2006 and Khadr’s actions are alleged to have occurred in July of 2002. The charge runs afoul of the principle of legality, or more specifically, the prohibition against ex post facto prosecution.

What the government misstates and misconstrues here is the consequence of the fact, if proven, that Khadr is an “unprivileged belligerent.” This term, which does exist in the law of armed conflict, merely describes someone who does not qualify for prisoner of war status when captured in international armed conflict. Unprivileged belligerency is not a violation of the law of war for Omar Khadr any more than it would be for you to fight against an invading army to protect your home and family. If the government wanted to charge Khadr with murder, it could do so under U.S. criminal law; it chose not to.

2. Attempted murder: This charge, too, alleges that the target was “U.S. or coalition forces,” which are legitimate objectives under the law of war. Like the murder charge, this one also runs afoul of the prohibition against ex post facto prosecution.

3. Conspiracy: Also not a violation of the law of war prior to the MCA’s passage and therefore also violates the prohibition against ex post facto prosecution.

4. Providing material support for terrorism:
a) Another crime that is not recognized under the law of war prior to MCA passage (does this sound familiar?) and therefore,violates the prohibition against ex post facto prosecution.

b) In addition, there are two “specifications” (counts) of this charge. The first alleges material support to an organization “known by the accused to be an organization that engages in terrorism.” “Terrorism” is defined as “kill(ing) or inflict(ing) great bodily harm on one or more protected persons, or intentionally engag(ing) in an act that evinces a wanton disregard for human life . . . .” But the specific acts of “material support” that Khadr is accused of are either all acts that, under the law of war, are legitimate targeting of military objectives, or are allegations of mere training without mention of intended targets. Thus, to satisfy the element that the accused knew that the organization engages in terrorism, the prosecution will have to prove something more than what is alleged in the specification.

c) The second specification is even more problematic for the government than the first. It alleges that the Khadr “knew or intended that the material support or resources” he provided (to wit: himself) were to be used “in preparation for or carrying out an act of terrorism.” But the acts that are alleged to constitute the “material support” are the same as above (all targeting military objectives, or mere training without mention of intended targets). If the government concedes that the context is armed conflict (as it does and as it must to establish MCA jurisdiction), then this targeting or training cannot be said to be against “protected persons” (the targets were neither civilians nor others hors de combat). Whether the government intends to proceed on this, or on the other leg of the “terrorism” definition (“intentionally engag(ing) in an act that evinces a wanton disregard for human life”), it once more runs up against the principle of legality/ex post facto prohibition, because any such training or targeting of military objectives was not a violation before the MCA made it so.

5. Spying: Spies, like civilians who participate in hostilities without a privilege to do so, do not receive prisoner or was status upon capture in international armed conflict. However, like unprivileged belligerency, spying was not a violation of the law of war before the MCA. Therefore, this charge also violates of the ex post facto prohibition.

The solution to this mess is to return to the tried and true procedures and substantive crimes available for use in U.S. federal courts or, in the appropriate case when the law of war properly applies, courts martial. The procedures in those courts comport with international standards of due process required by both the laws of armed conflict and human rights law. They lend a credibility that the military commissions, with their admissibility of hearsay evidence and of statements obtained through coercion, cannot achieve. In addition, the expansive list of crimes that can be charged in federal court, as compared to the more limited number and type of crimes that are actual war crimes rightfully chargeable in military commission proceedings, will make for true accountability for those who commit terrorist crimes.

UPDATE: 1. A recurring theme expressed by critics of my post is resistance to the fact that unprivileged belligerency is not a crime under the law of armed conflict and was not a crime at the time of Khadr's alleged acts under the law now being applied to Khadr because that law, the MCA, did not exist at the time of his acts. Perhaps these critics are so thoroughly saturated with the administrations's conceit of terminology - "unlawful combatant" - that they find it difficult to absorb the fact that it takes more than an executive declaration to make something a crime in the U.S. Yes, Congress can define criminal violations of the law of war (within limits, I suppose - could they make it a crime for enemy combatants or enemy civilians to not cover their mouth when they cough?). And Congress presumably can do so in ways that are inconsistent with pre-existing international law, including treaty obligations, so long as they don't treat on jus cogens norms. But Congress cannot apply new criminal laws retroactively. The prohibition against ex post facto prosecution is one of the bedrocks of domestic criminal and international human rights law. The fact that Khadr would not be entitled to PoW status is simply not dispositive of the question of his criminality for hostile acts he may have committed before passage of the MCA.

2. The fact that the victim, a U.S. soldier, is a combatant, means that he is a military objective (no sic) in situations of armed conflict. The flip side of combat immunity (the combatant's right to kill without regard to criminal laws) is the risk of being targeted. The fact that the person doing the targeting does not, likewise, enjoy combat immunity does not, alone, make him a criminal.

3. Civilians can, indeed, be detained in international armed conflict without having engaged in hostilities. See the 4th Geneva Convention.

4. If the government has admissible evidence that Khadr provided material support for terrorism at a time that that act was criminal in U.S. law, or that he initiated violence against an American citizen, then he could be charged with any number of domestic criminal offenses in federal court. However, if the evidence for "material support" consists of his being in and training with an Al Qaeda camp as a minor because that's where he lived with his parents since childhood, would it not reflect poorly on the U.S. to bring such a charge? And if the evidence for charges relating to his hostile acts indicates that he was acting in self-defense, then his conduct is as justifiable as would be an assault on a police officer who commits an unprovoked attack on a person.

5. As for spying: no, it is not a violation of the laws of war to surreptitiously collect information about the enemy. Yes, spies can be captured and tried for violations of applicable domestic law, but they are not war criminals and "spying" cannot be tried under the MCA for conduct that occurred, and that was not illegal, before the law's passage.

6. Levee en masse does not depend on the illegality of the attack for its legitimacy. The laws of war abhor making jus in bello rules (conduct in war) vary on the basis of jus ad bellum factors (the legitimacy of use force).

Comments:

You have explained what's wrong with the charges the government has brought and the court it has brought them in. What charges should the government have brought instead?
 

This post seems to mischaractize the issues.

The government is defining "violating the laws of war" when an individual engages in combat in a manner that is outside of the protected class of POWs. The government's point is that the laws of war provide that when someone engages in lawful combat, the individual cannot be punished for their belligerency. When someone falls out of this category, they can be tried for their hostile actions.

How is that wrong?

5. Spying -- It is a violation of the laws of war in that the perp doesn't fall under POW protections. Spies, when captured, can be tried and hanged/shot, etc. The fact that international law recognizes spying as something that individuals do, doesn't mean it is a part of the laws of war. By spying, the individual is engaging in behavior that isn't protected--that is the violation of the laws of war.

Now, the individual is protected under general catchall provisions, but just like in criminal law when the law recognizes and acknowledges criminal behavior, that hardly means the criminal law is saying that this behavior is somehow NOT violating the laws. This basic mischaracterization seems implicit throughout your argument. If your argument were to be accepted, it would actually go to show that any belligerent behavior NOT explicitly or implicitly acknowledged by international law, would by its nature, be a violation. This obviously isn't correct.
 

Oops, sorry about the typos. I accidentally posted before checking it.
 

So Someone,

By your formulation, it's a "violation of the laws of war" for me to protect my home against foreign soldiers if I'm not wearing a uniform? That's a new one from a "conservative" or "libertarian".
 

Omar Khadr was present during combat between US forces and a compound of armed members of al Qaeda. The enemy forces shot first and killed two Afghan translators who were trying to talk to them. They were not innocent civilians who were defending themselves from an attack, but rather they initiated the combat.

Khadr threw a grenade that killed a US soldier. When he did this, he was either an enemy soldier or a civilian bystander.

If he was a soldier, then his action was combat, and he is entitled to combatant immunity. He is innocent of all charges made against him in the commission, all of which assert that he was an unprivileged belligerent not entitled to combatant immunity. However, once you make this claim then you admit that his detention as a prisoner of war is valid. He committed no crime, but will be held in Guantanamo until the end of the conflict.

If he was a civilian, then he had no right to join the combat. His decision to kill the soldier is no different from someone who kills a policeman after a gunfight breaks out during the execution of a search warrant.

The original post is confused about the law. "Under the law of war, the victim is a military objective (sic) in armed conflict, so his homicide cannot be..." The legality of the act depends on the status of Khadr, not on the fact that his target is a soldier. Unless he himself is a soldier, privileged to engage in combat and entitled to combatant immunity, then the fact that the US soldier would have been a legitimate target to someone else does not protect Khadr from a charge of murder.

Under international law, the US is allowed to hold enemy soldiers in military custody until the end of the conflict. It cannot hold civilian bystanders unless they have engaged in combat and become unprivileged belligerents. However, if Khadr was a civilian, then he is a murderer. The military commission forces both sides to determine which of the two conditions hold. If he is a soldier, then he should be held in military custody as a prisoner of war. If he is a murderer, then he should be held in military custody as a criminal. Just a plain criminal, not a "war criminal".
 

RandomSequence -
I believe the levee en masse theory would only apply if the United States had illegally invaded Afghanistan, permitting the Afghans to react in self-defense.
 

Ms. Rona:

It is hard to keep track of all the spurious legal theories here, but I will try to sum up the worst.

1) The Constitution grants Congress the power to set rules for captures during a war. Congress set those rules through the MCA. The Constitution through this statute takes precedence over any prior domestic or international law. Congress has no duty to recognize and enforce foreign laws which Human Rights First (HRF) would prefer.

2) Khadr fits the MCA's affirmative definition of an unlawful combatant and does not fall within the Geneva Convention's definition of a lawful combatant due POW protections or a civilian non-combatant.

3) Historically, combatants who fought in civilian clothing and outside the law of war were executed on those grounds alone. However, Congress by enacting the MCA saw fit to compel the military to prove at a military commission that Khadr is guilty of a enumerated war crime.

4) Putting aside the fact that Khadr does not enjoy any rights under our Constitution, the MCA's increasing of Khadr's rights does not run afoul of the principle of ex post facto.

5) As an unlawful combatant, Khadr is not privileged to take up arms and fight a war nevertheless to kill Sergeant Speer during wartime.

6) Spies are also unlawful combatants and were historically executed.
 

lxjenkins,

I wasn't arguing the theoretical aspects under current international law. "Someone" portrays itself as a principled libertarian. Under libertarian theory, whether or not your country is legally invaded, you yourself have an affirmative right to defend yourself, your loved ones and your property.

You'd never see a principled libertarian saying that it would be right for the state to prosecute an individual for acting in defense of his homestead, whether the aggressors where police, military, or a random gang, as long as he had a reasonable belief that he was being attacked without due cause (such as being a dangerous criminal with a warrant for his arrest.) To say that it is a war crime to engage in defensive combat without being in a recognized army would make a significant number of Americans in the revolutionary war into war criminals (Britain was executing a perfectly legal war there - how can one invade oneself?)
 

Randomsequence,

Anyone who fights in a manner that doesn't meant the criteria for a POW doesn't fall under POW protection. Its a simple as that. If you don't like it, take it up with the text of the 3rd Geneva Convention, not with me.

Second, I've never claimed I'm a libertarian. (please feel free to search all my posts) So, get your facts straight.
 

Randomsequence,

I don't think that the fact that someone doesn't adhere to a particular law of war (for example, meet the POW requirements), means they are a war criminal. I'm not sure as to the technical definition of war criminal. But, it is usually reserved for those who commit mass murders, etc. It is in that context that I understand the term--though I could be wrong.
 

"Bart" DePalma:

Ms. Rona:

It is hard to keep track of all the spurious legal theories here, but I will try to sum up the worst.


Someone who thinks that summary judgement is only appropriate after discovery and, more egregiously, who thinks that Brown II "held that courts may legislate forced bussing of students to achieve desegregation" ought to think twice before denigrating the "spurious legal theories" of others....

1) The Constitution grants Congress the power to set rules for captures during a war. Congress set those rules through the MCA. The Constitution through this statute takes precedence over any prior domestic or international law.

We're not at war. "Seedy" Gonzales said so.

That aside from whether the MCA can criminalise actions ex post facto or infringe on other Constitutional strictures.

That aside from whether Congress can abrogate a treaty through implication without doing so explicitly. Think about it for a second: If Congress (and more generally the U.S. gummint) is not bound by treaty obligations, and can simply disregard any provision it doesn't agree with, then there's really no point to having treaties (as opposed to "sense of the Senate du jour" resolutions) to begin with....

Congress has no duty to recognize and enforce foreign laws which Human Rights First (HRF) would prefer.

Did you have a point here, "Bart"? I mean outside of "We're the Yoo Ess of Eff'in Aye, and we'll doo what we damn well please?"

2) Khadr fits the MCA's affirmative definition of an unlawful combatant ...

Yeah, and "Bart" would fit the definition of a "northbound horse's south-facing side" if I defined it myself so as to encompass "Bart"'s visage, ex post facto.

... and does not fall within the Geneva Convention's definition of a lawful combatant due POW protections ...

The Geneva COnv4entions don't use the terms "illegal", "unlawful" or "lawful" in combination with the word "combatant" anywhere. This has been pointed out to "Bart" a zillion times now. He's ignored it every time.

... or a civilian non-combatant.

The Fourth Geneva Convention relates to "to the Protection of Civilian Persons in Time of War". It doesn't relate "to the Protection of Civilian Non-Combatants in Time of War".

There is no Fifth Geneva Convention Relative to the Treatment of Illegal Enemy Combatants in Timt of War".

This has also been pointed out to "Bart" a zillion times. He's ignored this as well.

3) Historically, combatants who fought in civilian clothing and outside the law of war were executed on those grounds alone.

"Bart"'s favourite cite for this is here, which I rebut here (for the first time, later repeated), pointing out that a couple of Imperial Japanese and Nazi incidents in WWII, with the solitary exception of one incident in the Ardennes which can hardly be held up as a court-approved model for such behaviour, is hardly a high legal bar to set for ourselves.

... However, Congress by enacting the MCA saw fit to compel the military to prove at a military commission that Khadr is guilty of a enumerated war crime.

With the possible admission of coerced testimony, inability to see the evidence against him, and "all the [other] judicial guarantees which are recognized as indispensable by civilized peoples." </SNARK>

4) Putting aside the fact that Khadr does not enjoy any rights under our Constitution ...

Because, you see, he's not a "person" ... he's one of those brown-skinned alien thingies (that are trying to defeat our great Western culture by outbreeding us):

"Ben Wattenberg first raised alarms about this trend in 1987 in his book the Birth Dearth and was ridiculed by the overpopulation crowd and the feminists.

"A year or two ago, the problem became so obvious that the Economist headlined an article about how Europe is literally dying off.

"Last year, Mark Steyn wrote America Alone, which examined the implications of Europeans dying off and being replaced by a wave of Islamic immigration which is reproducing at a far higher rate. As usual, Steyn was over the top on a number of points, but his base argument that demography is destiny is indisputable.

"European civilization and its transplants in America and elsewhere is arguably the most successful culture since ancient Greece turned back the Persians. However, there is now a very real and legitimate question whether that civilization will die off from lack of members over the next two generations and be replaced."

(from here)

... the MCA's increasing of Khadr's rights does not run afoul of the principle of ex post facto.

Only a dishonest dissembler like "Bart" can claim with a straight face that the "MCA[] increas[ed] Khadr's rights". "Bart" knows full well that the MCA was a response to the Rasul and Hamdan detainee cases and meant to make sure they didn't get the rights that these cases said they had.

5) As an unlawful combatant, Khadr is not privileged to take up arms and fight a war nevertheless to kill Sergeant Speer during wartime.

Seeing as the reason he is an "unlawful combatant" is that the Dubya maladministration pronounced him that after the fact, hard to see why he's being punished for being less of a psychic than Wolfowitz, Perle, and Adelman, who predicted flowers, cakewalks, and WMDs galore....

But to put it in language that "Bart" might understand: A civilian is not permitted to shoot a suspected criminal on the street. But if a policeman were to break and enter his home, without a warrant, he'd be excused for defendng himself with deadly force. Similarly, even the Geneva Conventions recognise something like this:

Third Convention, Article 4:
"6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."

6) Spies are also unlawful combatants and were historically executed.

After trial. Fair trial. But irrelevant here, no, "Bart"? Khadr is in the U.S. only because we brought him here.

Cheers,
 

Someone,

Here is what you said, The government is defining "violating the laws of war" when an individual engages in combat in a manner that is outside of the protected class of POWs.

That is what I'm ridiculing as an unconservative position, if by conservative you mean adhering to traditional American values, the American revolution and the American Constitution. If that's what you're defending, you can neither be a conservative nor an allied libertarian.

A man defending his home from invaders is not in the class of protected POWs. He's a civilian or a partisan as a citizen-soldier, but not a POW eligible person under Geneva until he puts on that uniform.
 

Randomsequence,

First, your argument just doesn't make sense. It isn't clear what you are really talking about.

Second, I'll take a stab at rebutting what I think you were trying to argue. There was no Geneva Convention around the time of our founding. While, yes, there were generally laws of war. They would have recognized the Colonial forces as protected forces generally. The Colonialists did fight in formations, with chains of command (albeit in a haphazard manner at times), they did mostly carry their arms openly, and did otherwise primarily obey the current laws of war. Under the 3rd Geneva Convention, they likely would be considered POWs and under the rules of war of their time. So, you argument just isn't relevant or particuraly sensible.

Thirdly, just because a person doesn't fall under the POW protections, it doesn't mean they still don't have other protections. While, yes, they may be in violation of the "laws of war" (as in how one is expected to fight to receive POW protection), they still get other basic protections.
 

Someone,

Maybe you haven't read your own statement. What you are defending, once again, is that:
The government is defining "violating the laws of war" when an individual engages in combat in a manner that is outside of the protected class of POWs.

That is what I'm claiming is unconservative, that an individual does not have an inalienable right to defend his home and his property, beyond treaty obligations, beyond international law, beyond governmental law.

What you are saying there, is that it is a violations of the laws of war to engage, under any circumstances, in any kind of combat that would not lead to POW status, and that the government should enforce this interpretation of what fundamental human rights are.

A conservative would say that there are inalienable human rights, including the right to self-defense. That despite the current legal climate, some rights are so essential that no government may legitimately transgress them, and the right of self-defense is one.

It's pretty damn clear. I fail to see how you can so drastically misunderstand your own statements. From your comments, that's clearly the case - you don't realize that you are defending a categorical statement that offends the maxim that a man's home is his castle.

And you do know that the laws of war include, and supersede civilian law, right? They define when a military force may legitimately use force, and what responses may be taken by both military forces and civilians. They don't just apply to soldier-on-soldier interactions, but are the basic law for any military confrontation outside of the sovereign state.

Once again, you really a law student? For real?
 

RandomSequence said...

"Someone" portrays itself as a principled libertarian. Under libertarian theory, whether or not your country is legally invaded, you yourself have an affirmative right to defend yourself, your loved ones and your property.

Khadr was in a terrorist training camp and ambushed Sgt, Speer. Khadr and most of al Qaeda were foreign invaders of Afghanistan and were not defending their "homestead."

A libertarian or classical liberal has no trouble distinguishing between a citizen and an alien unlawful alien enemy combatant.

To say that it is a war crime to engage in defensive combat without being in a recognized army would make a significant number of Americans in the revolutionary war into war criminals (Britain was executing a perfectly legal war there - how can one invade oneself?)

The Geneva Conventions and US law recognizes irregular forces which identify themselves as combatants as lawful combatants. Khadr and al Qaeda are not the equivalent of the Continental Army.
 

"whether or not your country is legally invaded, you yourself have an affirmative right to defend yourself, your loved ones and your property." And when the US invades Canada, Khadr would certainly have a moral right to defend his homeland. Meanwhile, he has about as much association with Afghanistan as the US troops he was fighting. As for what HRF identifies as "the compound his family was in", the only problem is that his family wasn't in it. His mother was in Canada, his father was killed and brother injured in Pakistan. This al Qaeda safehouse had nothing to do with his family.

So we have a foreigner with no family or property in Afghanistan in an armed compound occupied by al Qaeda fighters who open fire and kill two people in cold blood. When US forces respond to that attack, Khadr wasn't "defending" anything, let alone family, home, and Canada.
 

Someone,

Thirdly, just because a person doesn't fall under the POW protections, it doesn't mean they still don't have other protections. While, yes, they may be in violation of the "laws of war" (as in how one is expected to fight to receive POW protection), they still get other basic protections.

I think this is exactly the point a lot of critics of the Administration have been making for a long time. Irregular fighters, though not entitled to POW status, are not per se war criminals, and are entitled to Article III protection .

Well, Abu Ghraib certainly did not meet Article III standards. Whether GTMO meets Article III standards is, to put it mildly, problematic. And cold cell, long time standing, stress positions and water boarding do not meet Article III either.

If this Administration would set up an open procedure to establish that the irregular fighters it captures (a) really are fighters and not people in the wrong place at the wrong time and (b) that it treats them in accordance with Article III, there would be a lot less opposition to its actions.
 

Howard+Bart,

You did see the rest of the argument between me and Someone? Read the whole thread. It did not directly impinge on the facts of this case, but the general principle elucidated by Someone that 'The government is defining "violating the laws of war" when an individual engages in combat in a manner that is outside of the protected class of POWs.'

Damn knee-jerk right-wingers. They've got about the same reading comprehension talent as spinster red academics who've long passed the retirement age and can only remember their ideology, but their dementia has erased the reasons why they started believing that in the first place. It's all about picking sides, ain't it?
 

"Bart" DePalma:

The Geneva Conventions and US law recognizes irregular forces which identify themselves as combatants as lawful combatants. Khadr and al Qaeda are not the equivalent of the Continental Army.

Wrong colour skin....

When U.S. troops get shot in Afghanistan, it's a war crime to "Bart"....
Cheers,
 

Ok, I agree that 'The government is defining "violating the laws of war" when an individual engages in combat in a manner that is outside of the protected class of POWs.' is really bad phrasing.

The charge is Murder. The part about "in violation of the laws of war" is not a statement of a crime but rather a statement dismissing a possible affirmative defense (combatant immunity).

One can be in one's own house "defending" your family and commit murder by killing a policeman who enters to execute a valid search warrant. When the US forces engaged the al Qaeda force after two people had been killed in cold blood, this was at best combat between two armed forces. The US Forces were permitted under the laws of war to participate in that conflict. They had the legal right to fight just as a policeman with a warrant has the right to enter. If Khadr was a civilian bystander, and not a member of the al Qaeda force, then he has no right to participate in the combat. At the same time, US forces would try to avoid injuring him.

Khadr killed a US soldier. If he killed in combat, there is no crime. There are a bunch of ways, however, to kill someone in a way that violates the laws of war: killing under a flag of truce, or after giving Parole, or when pretending to be a civilan, or when wearing a US uniform. All these violations remove combatant immunity and render the killing a Murder. They also cause the offender to become an unprivileged belligerent who has committed an act of unlawful belligerency, and deprive him of POW status. But the crime prevents you from being a POW, the fact that you are not a POW doesn't create the crime.

If the US is invaded, then we certainly would hope that people would rally around and join whatever forces form up for its defense. Such forces should adopt some uniform or military insignia. Because the problem is that if you are going to enforce the international laws against armed forces killing or injuring innocent civilians, then you have to be sure that the civilians are really innocent non-combatants and not some poorly identified militia.

That is the key to the arrangement. Armed forces will try not to injure civilians, and in exchange civilians will not engage in combat. If you want to be patriotic, or defend your home or loved ones, then either get yourself a uniform or else grit your teeth, sit on your hands, and keep out of the fight. If you try to fight without clearly identifying yourself as a combatant then you violate the laws of war, and the invading army which is trying very hard not to injure civilians has every right to punish you for it.
 

The original post is absolutely correct, IMO. It's not that Khadr can't be tried for murder per se, it's just that he can't be tried for murder as a violation of the law of armed conflict, since it did not constitute a violation of the law of armed conflict until passage of the MCA. In that sense, the MCA constitutes an ex post facto law.

Khadr is not entitled to protection as a POW under Geneva III, but is nevertheless protected as a civilian under Geneva IV. ('Civilian' is a residual category in this sense. It refers to ALL individuals NOT covered by one of the first three GCs.) His protection is modified while taking an active part in hostilities, so he becomes a military objective who may be killed or captured by US forces. However, once he ceases taking an active part in hostilities, for whatever reason, he is once again afforded the full protections of Geneva IV.

Though the GCs never phrase it in those words, 'unlawful combatantcy' is simply the notion that civilians may not legally take up arms in an armed conflict, except under limited circumstances, like a levee en masse. Government misreads the GCs and perverts the term to allow gaps between the Conventions, leaving, conveniently, their detainees unprotected. In reality, no such gap exists. As stated, GCIV is residual-- 'civilians' are all those not covered by the first three GCs. (See Article 4 of GC IV icrc.org/ihl)

He can still be tried for murder under federal law, but GC IV contains requirements for 'humane treatment' and 'fair and regular trial', neither of which seem satisfied under the MCA.
 

Howard:

There are a bunch of ways, however, to kill someone in a way that violates the laws of war: killing under a flag of truce, or after giving Parole, or when pretending to be a civilan, or when wearing a US uniform. All these violations remove combatant immunity and render the killing a Murder. They also cause the offender to become an unprivileged belligerent who has committed an act of unlawful belligerency, and deprive him of POW status. But the crime prevents you from being a POW, the fact that you are not a POW doesn't create the crime.

Not quote right. Violating the laws of war is not an automatic disqualification of POW status. POWs can be tried for violations of the laws of war (e.g., for killing civilians), and do not lose their POW status by dint of this (even if they may lose their life; see, e.g., Third Geneva Convention, Chapter III, in particular Article 99 et seq.).

Cheers,
 

Howard:

That is the key to the arrangement. Armed forces will try not to injure civilians, and in exchange civilians will not engage in combat. If you want to be patriotic, or defend your home or loved ones, then either get yourself a uniform or else grit your teeth, sit on your hands, and keep out of the fight.

Tell that to the partisans in WWII....

Cheers,
 

Random,

Ugh, If you can't understand the differences, I don't know what else to do. Your argument just makes no sense, because it conflates different issues. But, I'll try one more time.

Yes, there is the general presumption that one can defend their property. If under attack by an invading power, one can raise arms to defend oneself. But, generally this would involve a quick signup for the army, or joining a militia, or whatever.

The Bush interpretation of "violating the laws of war" is a seperate issue. The relevant law they are talking about is what constitutes proper behavior by a POW and/or to receive POW protections. But, even under this interpretation of "violating the laws of war" an individual fighting outside of this, still falls under some other basic protections.

So, when an individual took up arms against the invader, they have every MORAL right to fight. If they want their moral right protected by law, they fight in the LEGALLY recognized manner.

Furthermore, please stop trying to raise up strawman conservative positions. It's just annoying and doesn't take your arguments anywhere.

Personal Note: Your little personal attacks are rather hilarious. I'd suggest not stopping there though. Why let "someone" like myself infect the law student population. Maybe a nice little human BBQ is in order. In other words, at least try more colorful personal attacks.
 

Maybe this is something that Gabor Rona or someone else can answer.

It seems to me that this claim that "international law prohibits ex post facto trial/punishment" is not factually or theoretically correct.

Well, maybe that is true in how it views domestic law, but I don't see how that is true in the international law context itself. International law largely develops through treaties and customary international law--the customary norms among nations. Well, what about when individuals are tried in war tribunals (and other similar situations)? Especially, when these individuals haven't accepted this law. For all intents, it is applying a law after the fact to them. Now, some may argue that these laws applied in the first place--that they apply to all. But, the international law explanation isn't a good one. It only survives as a naked assertion of power--not a rule of law application.

Also, any advancement of international law through tribunal or trial is necessarily the imposition of ex post facto law. Much of the international human rights law and other international law developed, not specifically through treaty, but through the imposition of certain principles (not treaty specified) in a tribunal context--which is necessarily an imposition of ex post facto law.
 

Much of the international human rights law and other international law developed, not specifically through treaty, but through the imposition of certain principles (not treaty specified) in a tribunal context--which is necessarily an imposition of ex post facto law.

I'm very far from an expert on international law, but I suspect this occurs through the common legal fiction that the court merely states what the law has always been. This includes the determination that such law applies to the defendant.
 

Mark,

I think your point works better when the issue is the indeterminancy of the language of a statute. I don't see it as applying as well to the international law context and the issues that I raised.
 

I think your point works better when the issue is the indeterminancy of the language of a statute. I don't see it as applying as well to the international law context and the issues that I raised.

You could be right. I think the idea may be that there exists a "law of nations" in the form of natural right (Grotius) which applies. If you make that assumption, you could treat it like a statute.
 

Someone,

If you can't even accept your foot-in-mouth syndrome, you truly are fargone. Read Howard's response up-thread as a reasonable way to keep the argument going. It's only a strawman if you didn't mean what you said (which is a perfectly reasonable response - we all make mistakes).

The truth of the matter, very simply put if you read the Geneva Conventions, is that the "laws of war" apply to soldiers and civilians of either belligerent - no matter what they do. They do not violate the wars of law by engaging in combat outside of the "protected class of POWs", as a general statment. Some acts under that category would be violations of the laws of war - some would not. Both are prosecuted by the normal civilian or military processes (depending on whether they are soldiers or civilians). There are specific articles for partisans, and being a partisan is not an automatic "violation of the laws of war".

A soldier is not an automatic war-criminal if he happens to not be wearing pants when his command post comes under attack and he responds.

The laws of war are substantive, and not primarily process oriented. Just read the Geneva conventions in their entirety - they're pretty clear on the matter.

On the other hand, there are certain classes of people who are outside the law of war. They are neither eligible for it's protections, nor can be found guilty of such crimes (you have to accept both). In particular, that includes citizens of neutral third countries not in the military. In those cases, it is assumed that the normal process of international relations will occur - if one country is abused, war will be invoked, otherwise diplomacy and/or the civilian criminal system will handle the situation (or fail to, as the case maybe).

So, my guess is that at bottom, the Khadr case is a problem between the US and Canada, and our mutual treaties. He may be a murderer, or he may be a civilian defending his home from invaders - whether or not the attacks were legitimate. Remember, this is a special ops case - there's no reason to believe without further evidence that Khadr knew who was attacking the compound. There's a difference between a civilian at home, fighting back at unknown attackers, a soldier doing the same, a soldier ambushing enemy attackers who arrive at his home, and a civilian ambushing enemy attackers who arrive at his home. Only the latter even begins to enter the realm of "war crime" or even a non-war crime. Some of those cases, though, can reasonably lead to internment in a camp for the duration of the war. And in all cases, the UN covenant on human rights is in effect.
 

Randomsequence,

First, I'm glad you have abandoned your poorly reasoned attack on the alleged contradictions.

Second, I'm glad for your last post, because it seems much of the disagreement is semantics. The Bush administration is saying that the laws of war say belligerents should fight in certain ways. If those laws are violated, you lose the typical protections that are afforded to combatants (POW status, etc). This doesn't mean they aren't other laws (part of the Geneva Conventions, etc.) that apply. The point is that this person violating the laws pertaining to a categorization of lawful combatant.

It just depends on how narrowly or broadly the term is defined, but substantively I think the result is the same. An related, but seperate question, is then what rigths are guaranteed to those individuals who engage in combat but don't qualify for lawful combatant status.
 

To add,

The Bush administration is defining "laws of war" as the "laws of lawful belligerency." Obviously, there are other laws that are applicable to the sphere of war/conflict, but that do not deal with lawful belligerency.
 

Well Someone,

But words matter. If he's being accused of a "violation of the wars of law", that is legally a completely different question than if he is simply being accused of murder.

He is not being accused of the latter, because it would be extremely difficult to prove. If a bunch of guys in camo attack your "compound" (ranch, home, etc), and you grab a gun shooting back, whose gonna convict?

On the other hand, if you put it into terms of the "laws of war", suddenly you have a basis to avoid civilian jurisdiction (a requirement of the human rights convention). You start to play with amorphous ideas of "illegal enemy combatants".

It's very simple. Symmetry. If you were to imagine the reverse situation where some compound out in Texas was attacked by a foreign military, what style of justice would you be demanding? Would you accept military tribunals with questionable rules of evidence? Or would you be on some blog in Germany decrying the miscarriage of justice by the occupiers?

Do you really want to give the enemy more propaganda victories?
 

RandomSequence,

Thanks for your post! See, we can actually have meaningful discussion once the personal attacks and hysteria are put aside.

I agree that words do matter. The difficulty is that isn't entirely as clear as some make it out to be.

For example, you (I think) and the main poster claim that the alleged terrorist had not violated the "laws of war." Well, you yourself (I think) mentioned in another post that someone could violate the laws of war. Well, the problem with this is that every possible status and action is supposedly covered by the laws that regulate international action and belligerency. So, using the main poster's definition, nothing is outside the laws of war--because some law always relates to their status. This obviously doesn't get us anywhere. Everyone has a legally recognized status, but okay...so what? The point is there is a range of legally recognized statuses. My point (and what I believe is the administration's) is just the mere use of these different statuses.

That's why I think the focus on "lawful belligerency" is helpful.

Side Note: As SCOTUS made clear in Hamdan, there are no legal blackholes. Now, granted the executive had argued there was a legal blackhole, but this argument is now denied to them and so is immaterial and obviously not what the administration is arguing.
 

Someone,

And don't you see, the hysteria and personal attacks stop as soon as you show that you're actually discussing the matter at hand, rather than regurgitating talking points ala Bart, or acting as a propagandist?

But you're still missing the main point about the MCA. That applies to POWs. If Khadr were a POW, then he did nothing wrong - he was a soldier, and we just need to decide who he was a soldier of, so we can decide when he can be released.

If he's not a POW, then he's a civilian, and should be tried in civilian court for any crimes he may have committed. But continuing this nonsense of "illegal combatant" simply tries to play both sides simultaneously.

And for nothing. Khadr was fifteen years old - what kind of spy could he be? what kind of dangerous terrorist could he be? He wasn't ready to come over and take an airplane out. At worst he was a partisan who may have been willing to commit some terrorist act at some point in the future. It's the over-reaction that is more dangerous, literally, than doing nothing at all - you know that this boys picture is all over the middle east about the cruel Americans who imprison teenagers for defending their families.

Ya think there might be better ways to deal with this?
 

Random,

Your post obfuscates the issues so much as to pose a false dichotomy.

You are asserting that a person who takes up arms is either a civilian or a POW. This misconstrues the whole issue. While, someone who takes up arms may not fall under POW status, their "civilian" status is hardly the same as a normal civilian who just commits a crime like stealing. Basically, you can say that a person is just a POW or civilian, but this overlooks the facts that the civilian class has several subgroups, depending on their actions, where captured, and the context of the hostilities.

Here is a useful, but short primer
http://www.icrc.org/web/eng/siteeng0.nsf/html/5YNLEV

btw, nice try in excusing your earlier behavior, but if you look at my comments they have hardly changed. The only thing that has changed is your sudden attempt at decency. (Now, that I've called you on it, let's see if it falls by the wayside... :)
 

I think someone is missing part of the Red Cross explanation:

"However, much of the ongoing violence taking place in other parts of the world that is usually described as "terrorist" is perpetrated by loosely organized groups (networks), or individuals that, at best, share a common ideology. On the basis of currently available factual evidence it is doubtful whether these groups and networks can be characterised as a "party" to a conflict within the meaning of IHL.

Even if IHL does not apply to such acts they are still subject to law. Irrespective of the motives of their perpetrators, terrorist acts committed outside of armed conflict should be addressed by means of domestic or international law enforcement, but not by application of the laws of war."

I would take this to mean that, terrorism per se, except when in conditions that would be covered under IHL, would be considered a criminal act, subject to criminal penalties. Under this construction, captured terrorists who are not party to an IHL covered conflict would be subject to the domestic criminal law of either the state where the act was committed or of the state that is prosecuting them.

This seems to take the limbo of Gitmo completely out of MCA or IHL. Whatever the position of an individual, their status should have been determined soon after capture, and they should have been treated as a civilian/criminal or a POW from that point on.
 

Well, Someone

Thank-you for directing me to the ICRCs "false dichotomy":
Civilians detained for security reasons must be accorded the protections provided for in the Fourth Geneva Convention. Combatants who do not fulfil the requisite criteria for POW status (who, for example, do not carry arms openly) or civilians who have taken a direct part in hostilities in an international armed conflict (so-called "unprivileged" or "unlawful" belligerents) are protected by the Fourth Geneva Convention provided they are enemy nationals.

Contrary to POWs such persons may, however, be tried under the domestic law of the detaining state for taking up arms, as well as for any criminal acts they may have committed. They may be imprisoned until any sentence imposed has been served.

Persons detained in relation to a non-international armed conflict waged as part of the fight against terrorism – as is the case with Afghanistan since June 2002 - are protected by Article 3 common to the Geneva Conventions and the relevant rules of customary international humanitarian law. The rules of international human rights and domestic law also apply to them. If tried for any crimes they may have committed they are entitled to the fair trial guarantees of international humanitarian and human rights law.


So, yes, there only exists two (2) categories of persons under the control of the occupying government: POW and civilians. Civilians may be found to be illegal belligerents, and then may be prosecuted for that under normal law; POWs may be found to be war criminals, and prosecuted for that via a court martial; but there are no other categories at the same logical level as civilian and POW. The situation for citizens of neutral third parties is a bit more ambiguous; but note that the language refers to nationals and not citizens, with the former being a wider categorization.

And Someone, you don't note the lessening of your "hardline" voice in these comments? An increased ability for give and take? If that was simply a mistake, we can return to our regularly scheduled program.
 

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