Balkinization: What's Wrong With the Khadr Decision

Comments:

Now I know that those who hold opposing views will bring up Quirin (as did the CMCR) for the proposition that “unlawful combatants . . . are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” 317 U.S. 1, 31. But Quirin does not involve “mere” acts of unprivileged belligerency. It involves acts of belligerency that were unlawful not because the accused were unprivileged – in fact they were members of the opposing armed forces in an international armed conflict. You can’t get more privileged than that.

This is incorrect. In order to be privileged or lawful as a member of an opposing armed force under the Geneva Conventions, you need to be in uniform.

The very next sentence after the one cited above is this: “The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.” (Citations omitted) 317 U.S. 1, 31. The propriety of criminal charges in Quirin, unlike in Khadr, is based on the nature of the act, not on the status of the accused.

This is an attempt to create a distinction where none exists.

The nature of the act (waging war in civilian clothing) determined the unlawful status of the enemy belligerent and constituted the war crime for which he was prosecuted.

If the Quirin enemy belligerents waged war in German uniforms, they would have enjoyed the POW privilege and would not have committed a war crime.

This incredibly strained (non)distinction is meant to argue that Khadr's waging war in civilian clothing was not itself a crime for which he may be prosecuted by military commission. This has never been the law of war and is contrary to Quirin.

# posted by

Bart DePalma : 8:18 AM

This case has some unfortunately confusing language, and Khadr is one defendant where the question of combatant privilege is both jurisdictional and part of the merits of the charge. To understand this decision, it would be better to consider its effect on one of the upcoming cases.

Khalid Sheikh Mohammed can be tried for the deaths of the crew and passengers of four airplanes that were hijacked under his command. If he were a civilian, then these charges would be brought in civilian court. If he were a privileged combatant, then the MCA requires that he be charged before a full Court Martial. Only if he is an unprivileged combatant does the MCA assign jurisdiction to a military commission. KSM's charge reflects a crime independent of the status of the defendant, and privilege or combatant status only determines the court of competent jurisdiction, but this decision would apply in his case as well.

This was an appeal from a decision that the question of privilege had to be determined by some other tribunal before a military commission could consider the charge. The key finding is:

We find that this facial compliance by the Government with all the pre-referral criteria contained in the Rules for Military Commissions, combined with an unambiguous allegation in the pleadings that Mr. Khadr is “a person subject to trial by military commission as an alien unlawful enemy combatant,” entitled the military commission to initially and properly exercise prima facie personal jurisdiction over the accused until such time as that jurisdiction was challenged by a motion to dismiss for lack thereof, or proof of jurisdiction was lacking on the merits.

Clearly there are issues with at least the language if not the substance of the interaction between combatant privilege and the charges in the Khadr case, but these questions were not addressed in this decision. For that matter, this decision did not find that Khadr was an "unlawful enemy combatant" but only decided that the commission could determine privilege itself.

The problems with the wording of the charges against Khadr have yet to be addressed and will presumably be raised before the commission.

# posted by

HowardGilbert : 8:34 AM

It is pretty clear that unprivileged killing and destruction of property were war crimes under the common law or custom or the laws of war. What would be an interesting argument is whether statute had preempted the old common law at time of the alleged offenses and did not include some or all of the war crimes alleged against these unlawful enemy combatants.

For example, given that the Supremes have held that the UCMJ controlled the war crimes trials of these detainees, are the criminal charges therefore limited to those prosecutable under the UCMJ?

# posted by

Bart DePalma : 9:08 AM

In order to be privileged or lawful as a member of an opposing armed force under the Geneva Conventions, you need to be in uniform.

One hears this all the time, but is it true?

I'm no GC expert, but the text of GC III, Part I, Art. 4, mentions "a fixed sign recognizable at a distance" only as one of the four requirements for "other militias and other volunteer corps." That language is distinct from the other 5 categories, including:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

How does that not include the Taliban?

The ICRC commentary addresses each State's duty to see that uniforms are worn, but I don't see where the State's failure to do so cancels out the rights of the detainees.

Anyone more versed in these things, and able to link to your authorities, care to explain?

# posted by

Anderson : 9:23 AM

"Nowhere in the Geneva Conventions is there mention of the illegality, let alone criminality, of unprivileged belligerency.
This does not mean that unprivileged belligerents can never be prosecuted for acts which render their belligerency unprivileged. It does mean that such prosecutions must be grounded in applicable substantive domestic criminal law, since they are not grounded on any substantive international criminal law."

Actually, the terms "combatant" and "belligerent" do not appear in the Geneva Conventions either. GC III defines POW and GC IV defines "protected persons". It happens that the criteria in GC III Article 4 which provide part of the requirements for being a POW duplicate the traditional definition of a combatant/belligerent. However, it is logically incorrect to assert that because someone is not covered by GC III that he is necessarily "illegal" or a "civilian". The Conventions say what they cover and are silent about those they do not cover.

The GC does not define genocide, piracy, or any other crime defined by other international law. Just because a violation of international law is not mentioned in GC III doesn't mean that it can only be prosecuted under domestic law. Quirin, for example, was decided seven years before the Geneva and cites as a precedent the military trial of John Andre in 1780. Just as no single statue represents the entirely of domestic law, so no single treaty defines all of international law.

# posted by

HowardGilbert : 12:00 PM

Just as no single statue represents the entirely of domestic law

I beg to differ.

# posted by

Anderson : 12:10 PM

"Bart" DePalma:

In order to be privileged or lawful as a member of an opposing armed force under the Geneva Conventions, you need to be in uniform.

Incorrect. First, Gabor Rona states that the proper criterion is "privileged" (as in "covered by the GC3), not "lawful". As Gabor Rona also pointed out, and "Bart" ignores, the Quirin defendants were "member[s] of an opposing armed force". This is sufficient:

GC3, Article 4:

Article 4

"A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

"1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces."

"Bart" will quibble that there's some implicit requirement that "members of the armed forces" must be in uniform (did "Bart" sleep with his boots on?). Must this true at all times and under all circumstances? Obviously not. The GC go on to use "uniforms" as one distinguishing criterion for disentangling status in cases less obvious on their face, such as the case of irregular militias, resistance fighters, and volunteer troops. "Bart" in the past has made the assumption that regular "members of the armed forces" will wear uniforms, and in fact, for the most part the German army did (at least part of the day). The Quirin defendants did so: "The four were there landed from the submarine in the hours of darkness, on or about June 13, 1942, carrying with them a supply of explosives, fuses and incendiary and timing devices. While landing they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing they buried their uniforms and the other articles mentioned and proceeded in civilian dress to New York City."

Agreed, they took off their uniforms after landing, and this may have been an illegal act under the "laws of war" or domestic law in the U.S., but that doesn't make them instantaneously "non-privileged". They were privileged as members of the German armed forces, and would have been subject to trial (had the GC been in effect) under its terms for any violations of "the law of the Detaining Power or [] international law, in force at the time the said act was committed".

The issue in Ex parte Quirin was not whether they were members of the German armed forces (and thus whether the not-yet-written CG3 applied to them, but rather whether the military commission established by FRD was legally constituted to try them for their crimes (and also, irrelevant here, whether the U.S. Constitution guaranteed them a right to Article III trial by jury, something that the GC3 is silent about). I'd note that CG3 doesn't prevent the trial of POWs for violations of the "law of war":

Article 99

"No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed."

Article 93 countenances the lack of "uniforms" under the GC:

Article 93

"Escape or attempt to escape, even if it is a repeated offence, shall not be deemed an aggravating circumstance if the prisoner of war is subjected to trial by judicial proceedings in respect of an offence committed during his escape or attempt to escape.

"In conformity with the principle stated in Article 83, offences committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, the wearing of civilian clothing, shall occasion disciplinary punishment only."

Under "Bart"'s vision, wouldn't any such POWs not be entitled to CG3 protection because they were "wearing ... civilian clothing" (at the time)?

# posted by

Arne Langsetmo : 1:22 PM

"Bart" DePalma:

The propriety of criminal charges in Quirin, unlike in Khadr, is based on the nature of the act, not on the status of the accused.

This is an attempt to create a distinction where none exists.

Congress, in passing the MCA, made the distinction. Congress seems to have created an illegal "status" of "unlawful enemy combatant", necessary for the MC to have jurisdiction. There was no such status in the Quirin case. Rather, Quirin turned (in part) on whether the specific crimes ("an offense against the law of war which the Constitution does not require to be tried by jury") could be tried by military tribunals established by the president, under the Articles of War in effect at that time.

Cheers,

# posted by

Arne Langsetmo : 1:33 PM

"Bart" DePalma:

It is pretty clear that unprivileged killing and destruction of property were war crimes under the common law or custom or the laws of war.

It would be been clearer if you said that "[i]t is pretty clear that [] killing and destruction of property against the common law and/or laws of war were [] crimes under the common law or custom or the laws of war."

I'd note that it's an undispitable fact that POWs (i.e. provileged detainees) may be tried for "killing and destruction of property" if such acts violate "the law of the Detaining Power or [] international law, in force at the time the said act was committed".

Hope that clear things up.

Cheers,

# posted by

Arne Langsetmo : 1:42 PM

Howard:

Actually, the terms "combatant" and "belligerent" do not appear in the Geneva Conventions either.

Google (and <CTL-F>) is your friend:

GC3:

Article 5

"The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, ..."

GC4:

Article 15

"Any Party to the conflict may, either directly or through a neutral State or some humanitarian organization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralized zones intended to shelter from the effects of war the following persons, without distinction:

"(a) Wounded and sick combatants or non-combatants; ...

Cheers,

# posted by

Arne Langsetmo : 1:50 PM

Anderson said...

BD: In order to be privileged or lawful as a member of an opposing armed force under the Geneva Conventions, you need to be in uniform.

One hears this all the time, but is it true?

The Geneva Conventions come with commentaries which address the assumption that members of armed forces must be in uniform or otherwise wear designations identifying them as combatants:

PARAGRAPH A. -- PERSONS WHO HAVE FALLEN INTO THE POWER OF THE ENEMY

1. ' Sub-paragraph (1) -- Members of the armed forces '

...The drafters of the 1949 Convention, like those of the Hague Convention, considered that it was unnecessary to specify the sign which members of armed forces should have for purposes of recognition. It is the duty of each State to take steps so that members of its armed forces can be immediately recognized as such and to see to it that they are easily distinguishable from members of the enemy armed forces or from civilians. The Convention does not provide for any reciprocal notification of uniforms or insignia, but merely assumes that such items will be well known and that there can be no room for doubt. If need be, any person to whom the provisions of Article 4 are applicable can prove his status by presenting the identity card provided for in Article 17 .

# posted by

Bart DePalma : 3:10 PM

Howard said...

"Nowhere in the Geneva Conventions is there mention of the illegality, let alone criminality, of unprivileged belligerency. This does not mean that unprivileged belligerents can never be prosecuted for acts which render their belligerency unprivileged. It does mean that such prosecutions must be grounded in applicable substantive domestic criminal law, since they are not grounded on any substantive international criminal law."

The law of war is primarily military common law or custom. Occasionally, you will get presidential orders on the subject like the one issued by Lincoln during the Civil War or by Congress in the MCA. I am unaware of application of civilian criminal law to a captured lawful or unlawful combatant.

# posted by

Bart DePalma : 3:14 PM

Before 1949, international law divided an army into combatants (front line troops) and non-combatants (clerks, cooks, truck drivers).

Today the term "combatant" is used to designate all soldiers, including both those that before 1949 would have been "non-combatants".

There has been an attempt to divide people into "combatants" and "civilians" based on the incorrect assertion that these are the categories defined by GC III and GC IV. The actual language of Geneva, however, shows that GC III covers POWs and GC IV covers all other enemy nationals as "protected persons". Despite its title, the text of GC IV does not claim that everyone it covers is a "civilian" and it only covers enemy nationals. Thus if Khadr is not a POW under GC III, he is not covered under GC IV because he is a Canadian and not an Afghan citizen.

Similarly, the pre-1949 term for today's combatant is "belligerent", but it seems to have been used both to define those who are legally authorized to engage in combat (privileged combatant/belligerent) and in a separate use those who engage in combat even thought they are not privileged to do so ("unlawful combatants").

In the particular use of the term you quote, the adjective form, a "belligerent act" is something that is legally defined as equivalent to combat without actually involving any lethal force. The Quirin decision, for example, notes that when a spy crosses lines out of uniform, even if he carries no weapons, he commits a "belligerent act". This form is equivalent to macro version of the laws of war where blockading a port is a "belligerent act" even if you don't fire a shot.

Don't ask what the point is, because I am not trying to make one. Discussions on the detainee cases can bog down in the too casual use of words that have no clear meaning or where the meaning of the word varies over time or depends on context. But again, GC III and IV do not meaningfully tell you who is or is not a combatant, legal or illegal, nor do they make meaningful distinctions based on any use of any of these words or concepts.

The more I try to make sense of the terms in the current cases, the more I am drawn to the conclusion that "combatant" in the phrase "lawful combatant" means a privileged combatant (typically a uniformed soldier) who is allowed under international law to engage in combat even if he has not fought, while "combatant" in "unlawful combatant" means something else: someone who engages in combat even though he is not privileged to (typically a civilian who shoots at one of our soldiers). The uniform (or equivalent) defines the first while the fighting defines the second.

This may be catastrophic to the government position later on in these commissions, because a lawful combatant has a status just because of what he is. He doesn't have to have done any particular thing. However, an unlawful combatant may go through training camps, be fully armed, intend to fight, and be dangerous as hell. However, if you refuse to grant him the status of lawful combatant then you have to prove that he actually fired a shot. It is not good enough to prove that he was part of a unit, wanted to fight, or will fight in the future if released. Proving unlawful combatant status may require more evidence than they have in most cases (except for Khadr, who killed someone in front of a dozen witnesses).

# posted by

HowardGilbert : 3:18 PM

"Bart" DePalma, in the same old kick:

The Geneva Conventions come with commentaries which address the assumption that members of armed forces must be in uniform or otherwise wear designations identifying them as combatants:

PARAGRAPH A. -- PERSONS WHO HAVE FALLEN INTO THE POWER OF THE ENEMY

1. ' Sub-paragraph (1) -- Members of the armed forces '

...The drafters of the 1949 Convention, like those of the Hague Convention, considered that it was unnecessary to specify the sign which members of armed forces should have for purposes of recognition. It is the duty of each State to take steps so that members of its armed forces can be immediately recognized as such and to see to it that they are easily distinguishable from members of the enemy armed forces or from civilians. The Convention does not provide for any reciprocal notification of uniforms or insignia, but merely assumes that such items will be well known and that there can be no room for doubt. If need be, any person to whom the provisions of Article 4 are applicable can prove his status by presenting the identity card provided for in Article 17."

So the dispositive fact of whether they're in the "armed forces" is whether they have this ID card. Thanks.

Cheers,

# posted by

Arne Langsetmo : 4:00 PM

Howard:

In the particular use of the term you quote, the adjective form, a "belligerent act" is something that is legally defined as equivalent to combat without actually involving any lethal force.

Where?

Cheers,

# posted by

Arne Langsetmo : 4:04 PM

arne:

The standard is uniforms or other visible designation. The armed forces ID card is a stop gap, thus the term "need be."

For example, the enemy attacks one of our camps and some of our soldiers are off duty in civilian clothing when the attack occurs. Technically, they would be fighting back unlawfully in civilian clothing, but they could prove that they were soldiers by their ID and dog tags.

Another example are military who work in civilian clothing in foreign countries at the request of the local government because they do not want uniformed foreign soldiers walking their streets. If the enemy attacks that country and captures the soldiers, they can identify themselves with IDs or dog tags.

In any case, no one is alleging that al Qaeda is a regular force with ID cards. Rather, al Qaeda conducts operations in civilian clothing so they cannot be readily identified as combatants and so that civilians will die in any cross fire. This has long been recognized as a war crime.

# posted by

Bart DePalma : 4:09 PM

Howard:

The more I try to make sense of the terms in the current cases, the more I am drawn to the conclusion that "combatant" in the phrase "lawful combatant" means a privileged combatant (typically a uniformed soldier) who is allowed under international law to engage in combat even if he has not fought, while "combatant" in "unlawful combatant" means something else: someone who engages in combat even though he is not privileged to (typically a civilian who shoots at one of our soldiers)....

IOW, a "privileged combatant" is simply a soldier or other entity described in GC3 Article 4. Can we just shorten it to "CG3 'POW'" or "privileged detainee"?

And a "combatant" is one who engages in "combat".

... The uniform (or equivalent) defines the first while the fighting defines the second.

Yes. Note that under such a nomenclature, there are "combatants" who are not "privileged" (i.e., soldiers or similar persons), and "combatants" who are not soldiers (as well as the other two logical combinations). There are two GCs.

How does that help us?

Cheers,

# posted by

Arne Langsetmo : 4:15 PM

Arne Langsetmo said...

And a "combatant" is one who engages in "combat".

...and those who support combat operations.

Only about 20% of our 1 million plus person army actually engages in combat. The rest provide support of one kind or another. All would be considered "combatants" under the GC even if all they did was push paper or cook meals.

# posted by

Bart DePalma : 4:25 PM

"If need be, any person to whom the provisions of Article 4 are applicable can prove his status by presenting the identity card provided for in Article 17."

[Arne]: So the dispositive fact of whether they're in the "armed forces" is whether they have this ID card. Thanks.

["Bart"]: The standard is uniforms or other visible designation. The armed forces ID card is a stop gap, thus the term "need be."

Thus, if they're wearing uniforms. they're "armed forces" (unless they stole or forged the uniforms). But if they're not, they're still "armed forces" if -- as "need be" -- they show they ID card. What would be the point of showing an ID card if "need be" if the simple presence of a uniform was dispositive? Thanks.

The whole point is that if they're part of a regular "armed forces", they're covered under Article 4. You can take your boots off now (but hopefully downwind from here).

Cheers,

# posted by

Arne Langsetmo : 4:25 PM

I don't quite get how an "assumption" in the commentaries is able to trump the plain language of the treaty. It might explain poor draftsmanship, but it doesn't alter the meaning of what the treaty says.

Obviously, the notion that every country in the world is going to dress its soldiers in fatigues, is a bit much to swallow.

# posted by

Anderson : 4:36 PM

"Bart" DePalma:

[Arne]: And a "combatant" is one who engages in "combat".

...and those who support combat operations.

No. Under Howard's cladistics, "combatant" in that sense of the word would simply be redundant of "privileged" person (or "POW") under GC3, Article 4 [see GC3, Article 4(A)1, 4, and 5]. But Howard wants to use it for a different purpose. Difficult to serve two masters.

Cheers,

# posted by

Arne Langsetmo : 4:43 PM

Arne asks about "without actually involving any lethal force.
Where?"

In Quirin:

"entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States... By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment."

"Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations. The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when with that purpose they entered-or, having so entered, they remained upon-our territory in time of war without uniform or other appropriate means of identification."

The whole text of Quirin shows that when a spy or saboteur steps on US soil, even without weapons, it is an act of belligerency equivalent to an armed invasion. The declaration of a blockade, and in some cases an embargo, was regarded as a belligerent act in the past.

# posted by

HowardGilbert : 5:15 PM

Arne:

We can agree to any better language here, but we cannot change the fact that others in every part of this debate are using the same words to mean different things. Some argue that "combatant" requires privilege and therefore "unlawful combatants" do not exist (civilians who engage in combat in violation of the laws of war are then simply "civilians"). Although this is a widely held view in Europe, it cannot be supported in US law given the quotes from Quirin cited above.

However, while all GC III POW's are privileged combatants, there may be an additional group of what might be called "common law privileged combatants" not covered by GC III but still entitled to privilege and common law POW status. During the Korean War, the North Koreans and Communist Chinese volunteers did not represent a "state actor" or government recognized by us or the UN, and they had not radified the GC. They were not GC III POW's. But they looked enough like a regular army of regular soldiers that they should have been and were treated the same as ordinary POWs with combatant privilege. I argue (but nobody seems to agree) that we should accord al Qaeda the same status.

# posted by

HowardGilbert : 5:29 PM

Howard,

In Korea, since we had ratified GCIII, we were bound to it by Article 2:
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.

Also, you are right as to treatment: GCIII, Article 5:

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Basically, prisoners, even in a "war" with a non-state actor, are required to be treated under the provisions of the GC, until they are determined not to be covered by it. I believe the exceptions are regarding outside communications (i.e., letters home) in the case of suspected saboteurs. However, it does not stop requirements for human treatment or competent legal counsel.

The MCA may cover creation of a competent tribunal, but that doesn't excuse not treating them according to GC until then.

# posted by

Fraud Guy : 5:51 PM

Howard, quoting Ex parte Quirin:

"entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States... By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment."

"Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations. The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when with that purpose they entered-or, having so entered, they remained upon-our territory in time of war without uniform or other appropriate means of identification."

Then there is a crime (against the laws of war) of "unlawful belligerency" which includes (presumably amongst other specific acts) "passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or [] discarding that means of identification after entry".

In fact, this is what they were charged with: "Specification 1 of the First charge is sufficient to charge all the petitioners with the offense of unlawful belligerency, trial of which is within the jurisdiction of the Commission, and the admitted facts affirmatively show that the charge is not merely colorable or without foundation."

It would seem that being a "belligerent" is another element of the crime, and not a status, much as is "intent" for a charge of murder.

I guess you could say that a person who murders someone has the 'status' as a "murderer", but that hardly tells one how such a person is to be treated vis-a-vis the law.

Confusing a specific crime alleged with a 'status' that determines how a(nother) crime is to be prosecuted and tried is -- in my opinion -- not a good thing.

It is clear that being a "POW" protected by GC3 (or being a policeman [or even serviceman; see UCMJ courts martial versus civilian trials for crimes such as premeditated murder] under some circumstances) may influence the proceedings as well as the existence of a crime. But the 'status' of "belligerent" is not a crime. The act of "unlawful belligerency" is.

But you didn't answer my question:

[Howard]: a "belligerent act" is something that is legally defined as equivalent to combat without actually involving any lethal force.

[Arne]: Where?

I didn't see it.

It's kind of like giving some people the status of "killers" and then saying that such 'status', along with the fact they did so unlawfully, makes them "unlawful killers" (i.e. murderers). It doesn't help clarify much of anything.

Cheers,

# posted by

Arne Langsetmo : 5:51 PM

Fraud Guy - Although I agree with you that the US would be better off simply accepting that al Qaeda prisoners should be treated according to the Geneva Convention until there is a compelling reason not to, I believe that the section you quote says that the US is required to treat other Geneva signatories according to the convention even in a war in which one odd participant does not follow Geneva. There is no requirement to grant Geneva status to a third party that rejects it, even if you and I think it is good policy.

Arne: "Then there is a crime (against the laws of war) of "unlawful belligerency" which includes (presumably amongst other specific acts) passing our boundaries for such purposes without uniform".

No, there is an offense against the laws of war which is tirable in a Court Martial or military tribunal and typically is a capital offense. It is not clear that spying is a crime. First, there are several hundred grade schools around the country named for Nathan Hale, and I don't think we name grade schools after convicted and executed criminals. More importantly, spying has the "ally ally in come free" rule that doesn't work for real crimes. According to the Hague Regulations, if a spy completes his mission and returns to his army, then later on if you catch him then no matter how much evidence you have that he was a spy behind your lines out of uniform, you can't charge him with anything.

Much as I hate to suggest that something that gets people hung is simply arbitrary, the rules on belligerency with regard to spies and maybe other unlawful combatants appear to be more like violations of the rules in a sport, like being offside in socker. If the ref doesn't call it at the time, then no matter how much evidence you have from the TV tapes you can't call the foul retroactively weeks later.

Most of the Khadr charges appear to be an improper attempt to retroactively charge someone with "unlawful combatant" status months after the foul. There is explictly a charge of "spying" that should not last 10 minutes in front of a real military judge.

However, while being an unlawful combatant is a required element of each charge (to eliminate the defense of privilege), it is not by itself a crime. Rather, killing a US Soldier while you are an unlawful combatant is simple "murder", like killing a cop. The "violation of the laws of war" strips a possible defense, but it is not a "war crime" like genocide or even an ordinary crime, although most circumstances that render you an unlawful combatant also involve some type of attempted murder.

There is a simple social contract. A soldier can never, ever simply open fire and kill civilians. That is murder. But to make that work, the laws of war can never, ever tolerate someone pretending to be a civilian opening fire on soldiers after their back is turned. If you don't agree with the latter then you can't enforce the former, and there is no such thing as a law of war. There can be no excuse like "I was just defending my country" or "I was fighting invaders". When someone appearing to be a civilian engages in combat, no matter what the apparent justification, it is per se illegal and if he kills someone he has to pay for his crime. That has to be absolute or else you just have to let soldiers kill any civilians that appear to be suspicious.

Having said that, Khadr was never mistaken for a civilian, nor was any fire withheld because of it. He survived an airstrike, and nobody knew he was there before he threw the grenade. There is a reasonable case to be made for privileged combat, although if he wins on that basis he implicitly accepts his continued detention as a POW until the end of the conflict.

# posted by

HowardGilbert : 8:45 PM

Howard:

Arne: "Then there is a crime (against the laws of war) of "unlawful belligerency" which includes (presumably amongst other specific acts) passing our boundaries for such purposes without uniform".

No, there is an offense against the laws of war which is tirable in a Court Martial or military tribunal and typically is a capital offense....

"crime". "offense". "You say 'potahto', I say 'potato'...."

... It is not clear that spying is a crime. First, there are several hundred grade schools around the country named for Nathan Hale, and I don't think we name grade schools after convicted and executed criminals....

Nonsense. Under British law, Hale was guilty. He's a hero not for being a spy, but for being an insurgen... -- ummm, sorry, "patriot" (note that I don't mean to disparage Hale =- I admire him -- but let's be frank about the legal milieu under which he was tried and hanged).

... More importantly, spying has the "ally ally in come free" rule that doesn't work for real crimes.

Huh? Are you talking about "diplomatic immunity". If you're talking about escaping to some jurisdiction beyond the reach of the prosecution, that's true of all crimes....

... According to the Hague Regulations, if a spy completes his mission and returns to his army, then later on if you catch him then no matter how much evidence you have that he was a spy behind your lines out of uniform, you can't charge him with anything.

I didn't know that. Do you have a cite for this? Regardless, the fact they have such a exception ("rule") is proof in itself that spying is a crime.

Much as I hate to suggest that something that gets people hung is simply arbitrary, the rules on belligerency with regard to spies and maybe other unlawful combatants appear to be more like violations of the rules in a sport, like being offside in socker. If the ref doesn't call it at the time, then no matter how much evidence you have from the TV tapes you can't call the foul retroactively weeks later.

Kind of like the SOL on crimes. That hardly makes those charged before the SOL any less criminal.

Most of the Khadr charges appear to be an improper attempt to retroactively charge someone with "unlawful combatant" status months after the foul....

The objection here is the creation of a "crime" after the fact. The crux of the objection is that it's not fair to charge someone with something that they had no way to know was going to be "criminal". We can argue as to whether Kradh should have been fairly 'on notice' that what he was doing was wrong, and whether the ex post facto declaration of certain groups as being "illegal" (i.e., "terrorist") was a creation of a new de jure crime (through the ipse dixit labellng of certain organisations as "terrorist"), or just an explication of what should have been obvious, and that the crime of assisting terrorists was always in place. But that's what the courts will decide, so not much point in hashing it out here.

However, while being an unlawful combatant is a required element of each charge (to eliminate the defense of privilege), it is not by itself a crime.

There is no blanket "privilege" against criminal charges, even for POWs. See, e.g. GC3, Article 99 et seq.. The act of belligerency per se (e.g., firing on enemy soldiers) is not illegal; our own soldiers do it, and are not tried for such.

I agree with you that being an "unlawful combatant" is not a crime, though, for other reasons.

There is a simple social contract. A soldier can never, ever simply open fire and kill civilians. That is murder.

True. But that is true of our own soldiers under our own law as well, and under the laws of war. Which goes to my point.

the laws of war can never, ever tolerate someone pretending to be a civilian opening fire on soldiers after their back is turned. If you don't agree with the latter then you can't enforce the former, and there is no such thing as a law of war. There can be no excuse like "I was just defending my country" or "I was fighting invaders". When someone appearing to be a civilian engages in combat, no matter what the apparent justification, it is per se illegal and if he kills someone he has to pay for his crime. That has to be absolute or else you just have to let soldiers kill any civilians that appear to be suspicious.

This is true from a pragmatic point, and it is why we have such as the Geneva Conventions. We pretend that there are "laws of war" and that war can be a civilised undertaking. That's, in my mind, a dangerous delusion, and part of the reason we are where we are.

And that's my final word on this thread.

Cheers,

# posted by

Arne Langsetmo : 12:19 PM

Arne: Do you have a cite for this?

http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm#art31

Art. 31.
A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.

This is not a complete amnesty. If the spy kills somebody while in civilian clothes behind enemy lines he can still be charged with the murder, but not the spying.

Khadr is charged with murder and a bunch of other things that would be covered by combatant immunity if he had privilege. Explicitly he is charged with spying in direct conflict with Hague Art 31 quoted above. Now you could argue that absent a recognition of privilege, al Qaeda is not an army and therefore by rejoining al Qaeda he did not "rejoin the army to which he belongs", but then the problem is that only an army creates spies, and if they are civilians then they can't be spies in the military sense of the term (not the civilian meaning of spying like the CIA does).

Murder is not, in any rational world, an ex post facto charge. There was subsequent legislation to create a new court of competent jurisdiction. I believe the format of the charging document may be defective in this regard and that may be the next way this case gets booted (the charge references a paragraph assigning jurisdiction to the crime to the court instead of charging him with the original underlying criminal count). Remember, since the crime occurred overseas in a war zone and is being tried in a military court, this may not be a domestic criminal statue but rather a crime under international common law.

Which brings us back to Hale. The Laws of War are international. In any war between nations, no single nation can claim its domestic law controls the conflict. Even if you claim it was British Law, British military law became our common military law after we won the revolution. Objectively, Captain Hale took off his uniform and in civilian clothes, pretending to be a civilian unemployed school teacher, passed through British lines of defense by booking passage on a commercial ferry across Long Island Sound from rebel Connecticut to loyalist Long Island.

In Quirin the Supreme Court noted that this is all common law, and it has not changed in the last 225 years (although they cited our case against Major John Andre instead of the British case against Hale). It is still the same law, the same offense, and the same charge. The Quirin defendants in 42, the 19 hijackers on 9/11, and Padilla in May, 2002 all committed the same offense against the laws of war by crossing lines out of uniform that Hale committed in 1776 and Andre in 1780. Al Qaeda even uses a modern version of the Hale method: they dress in civilian clothes, pretend to be students (instead of a teacher), and instead of a ferry across the sound they book passage on a commercial jet across the Atlantic.

This doesn't mean that there is no difference between good guys and bad guys. It does mean that international law doesn't take sides, and the rules for good guys and bad guys are the same.

That is why you have to be careful about claiming that "unlawful combatants" are criminals, because our first great hero committed the same offense. I would rather call it an "offense" that, although capital, is not criminal. It is an honorable offense and produces an honorable death.

# posted by

HowardGilbert : 1:45 PM

There is a simple social contract. A soldier can never, ever simply open fire and kill civilians. That is murder.

Dropping incendiary bombs on them from a great height, on the other hand, is okay.

# posted by

Anderson : 1:45 PM

"A soldier can never, ever simply open fire and kill civilians. That is murder."

Actually, this is not entirely true. It is lawful intentionally to attack civilians if they are engaged in military activity, e.g. working in a munitions plant.

# posted by

Bill : 1:57 AM

"Dropping incendiary bombs on them from a great height, on the other hand, is okay."

I assume you're thinking of the bombing of Dresden or Tokyo by the Allies in WWII. To my knowledge, these bombings were in fact war crimes. They were not prosecuted because they were committed by the victors and, rightly or wrongly, were viewed by the general public as having been necessary to bring the war to an end.

# posted by

Bill : 2:00 AM

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# posted by

Unknown : 5:10 PM