Talk:Unlawful combatant/Archive 3

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This is an archive of past discussions. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page.

1 Archive
2 Page 2
3 US Specific Section
4 Enemy combatant
5 Merging Illegal enemy combatant into the section United States
6 Changes to first section
7 Status of Comintern
- 7.1 References

Page 2

US Specific Section

Before the recent US court cases, the US supreme court had not visited this since before GCIII, it would seem to me that the most recent US supreme court cases rulings should be mentioned in passing along, with the original case and they all should all be moved down to near the end of the article into a US specific section.Philip Baird Shearer 14:39, 22 Oct 2004 (UTC)

The peculiar legal status of Guantanamo Bay is a factor in the use of Guantanamo as a detention center. Because sovereignty of Guantanamo Bay ultimately resides with Cuba, the U.S. government has argued (and one circuit court has agreed) that people detained at Guantanamo are legally outside of the U.S. and do not have the Constitutional rights that they would have if they were held on U.S. territory (see Cuban American Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995)). However, in 2004, the Supreme Court rejected this argument in the case Rasul v. Bush with the majority decision and ruled that prisoners in Guantanamo have access to American courts, citing the fact that the U.S. has exclusive control over Guantanamo Bay.

This was taken from the GB page it holds the information with the stuff already on the page to update the US S.Court view of an unlawful combatant with consideration of the 1949 GC treaty obligations. Any one want to write a US specific section and place it just before the Criticism section? Philip Baird Shearer 04:54, 10 Nov 2004 (UTC)

Enemy combatant

The phrase repeatedly used by the Bush regime is "enemy combatant." I am confused as to why "unlawful combatant" has replaced it in this article. --Daniel C. Boyer 20:02, 30 Nov 2004 (UTC)

Yes, I think they're different. I've fixed the redirect with a stub at Enemy combatant. To me, an "unlawful combatant" would be a civilian who attacks military (rather than military vs. military). So in that case, civilians in Iraq would be "Unlawful Combatants" during the Iraq war and at the time Saddam Hussein was President. They would be Iraqi citizens fighting the invading US/UK army. Vietnamese citizens fighting the US army during the Vietnam war would also be "unlawful combatants" in that sense.

Currently, rebels in Fallujah are murderers, terrorists, seditious conspirators etc. according to whatever Iraqi law they are breaking. In that case it is civilian vs. civilian, as the US has succeeded in "regime change" and are now not fighting Iraq, nor occupying Iraq, but helping the Iraqi government (such as it is).

"Enemy combatants" as defined by the US, are not civilian vs. military, but civilian vs. civilian (incl. government). Of course, civilian vs. civilian (should) fall under the normal rule of law, but the US government seems to have an arbitrary method of determining who is an "Enemy combatant"--as far as I know, it is simply an executive order with no judicial oversight. I think that is the distinction, and I think it's a very important distinction.--Ben 10:50, 3 Jan 2005 (UTC)

Surely an enemy combatant is a combatant fighting for the other side in an armed conflict? So in the Falklands War enemy combatants were for the British members of the Argentinian armed forces. Unlawful combatants are not civilians. It includes people who have breached the laws of war: fighting under a flag of truce, or mercenaries, or a member of a militia fighting out of uniform, (unless the parties have signed Protocol I), or a person fighting without a command structure etc. Philip Baird Shearer 13:55, 9 Mar 2005 (UTC)

Merging Illegal enemy combatant into the section United States

See: Talk:Unlawful combatant/Archive Illegal enemy combatant

Merge done Philip Baird Shearer 13:10, 17 Mar 2005 (UTC)

I strongly disagree with the merge. You've done this because of a POV interpretation of the words "unlawful combatant" and it is inaccurate. "Unlawful combatant" is not a concept which you can throw things into. It is a legal definition. Trying to define it as a concept will get you into all sorts of trouble, and, unless you're a member of the Supreme Court, I don't see how you can think you can even begin to do so. It was fine the way it was, with no possibility for POV and inaccuracy. Now there's going to be more fights over the usage because you would like to impose your POV reading of "unlawful combatant" on other people. Leave it as a legal definition and there will be no problems. Try to combine them, and I guarantee you people will start fighting about it (as evidenced by my disagreement here, and other's questioning above and in the archive). --Ben 23:08, 17 Mar 2005 (UTC)

You state that "It [unlawful combatant] is a legal definition". Please show me an international treaty which uses the term. Philip Baird Shearer 23:21, 17 Mar 2005 (UTC)

Rewrite the introduction of it is incorrect then. "Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without meeting the requirements for a lawful belligerent according to the laws of war as specified in the Third Geneva Convention."--Ben 01:28, 18 Mar 2005 (UTC)

This article might give you an idea of why putting these two together is a bad idea until the legality is sorted out [1]. In case you don't check it out, in it, the writer, a law professor at Columbia, writes regarding the question of what an unlawful combatant is, that "the short answer is that a prisoner of war is entitled to the protections set forth in the 1949 Geneva Convention. In contrast, an unlawful combatant is a fighter who does not play by the accepted rules of war, and therefore does not qualify for the Convention's protections."

The first paragraph is correct and it agrees with what the chap is saying. It is GCIII Article 4 which defines this. (and the next sections in Wikipedia article go into great detail about this).

In his article he is using a brief description, which does not explore all the possibilities. For example:

Did it? To begin, the Taliban has, or at least formerly had, a tighter command structure than al Qaeda, suggesting it might satisfy the first criterion of "being commanded by a person responsible for his subordinates." However, Taliban members did not appear to satisfy the second and third criteria, for they did not wear uniforms that bore a "fixed distinctive sign recognizable at a distance," nor did they invariably "carry arms openly."

By this argument the British army would have a problem: it has not used "fixed distinctive sign recognizable at a distance;" for more than a century (See khaki). Often many of its senior officers have not born arms. So by his description members of the British army do not qualify as POWs. This is silly because they are covered by GCIII.4.a "Members of the armed forces of a Party to the conflict" not GCIII.4.b "Members of other militias". He is defining Taliban forces as coming under GCIII.4.b but they may be designated under another definition in GCIII (not for us to judge but for"a competent tribunal" (GCIII Article 5 as mentioned in the Wikipedia article)).

However over all I would say that the reference which you have given and this Wikipedia article are in broad agreement. If you disagree lets get down to specific paragraphs. (You have still not provided an example of an international treaty which defines the term "unlawful combatant"). -- Philip Baird Shearer 11:51, 18 Mar 2005 (UTC)

They must be kept separate. The two of us are not going to find a resolution. When separate the argument will be separate. Your preference that they be together is causing conflict. My preference that they be separate reduces conflict, and you are free to edit that page as much as you wish. The only possible conflict would be "let's move the page". Now, you have introduce a myriad of conflicts such as the definition of "combatant," the definition of "unlawful," the relation between International law and domestic law, the legitimacy of the ""war" on terrorism" and the nature and perspectives of those involved, differences between legal and conceptual definition, article style and flow, arguments over POV regarding implied comparisons and perspectives of concepts, etc. etc. Your PREFERENCE CAUSES conflict. It does NOT help anything. SEPARATE ARTICLES REDUCES CONFLICT.

Furthermore, whenever you say "Show me an international treaty which..." makes me want to punch the screen. If you are too stupid to understand what the words "unlawful" mean, you are too stupid to edit this article. It is a legal definition the same way as "illegal driving" would be a legal definition--it would mean driving in a manner opposed to the written law. A little more complicated, is that "combatant" would combatting in a manner opposed to the written law. To combat one must have a conflict, and as such that conflict must ALSO be defined by law otherwise participants in ANY conflict in which combat occurs (like say, an illegal street fight) could be considered "unlawful combatants". Either you are trying to start a fight with me (probably) or you need to brush up on your parsing of simple phrases.

I can't write like someone in the Supreme Court, but if your whole argument is based on me not being able to argue my side because you keep missing my points and not be able to weave around all your red herrings and bullshit (like all that crap about the British, that crap about how the lawyer is "right," the point about the opening paragraph going straight over your head somehow, meaning you must have had to duck otherwise it should have hit you square in the face) then maybe you should consider the possibility that your argument to put them together is completely ridiculous, which is my position.--Ben 23:33, 19 Mar 2005 (UTC)

"Combatant" and "armed conflict" do not have to be defined because they are used in GCIII. The difference between international law as defined by US treaty obligations under GCIII and GCIV and US domestic law are being resolved in the US courts at the moment. I think that the definition given in the first paragraph of the article is a close to a definition of the term "unlawful combatant" as one can get, by defining it as combatant who is not a lawful combatant as defined by GCIII. If you think that the term has a legal meaning separate from just being a negation of lawful combatant under GCIII, then please explain to me, who has made this legal judgement and how is it reflected, not in US domestic law, but in international law and specifically in treaty obligations.

AAAAAAAAAAAAAAAAAAAAAAAAGH!!!! Of course it is correct! But where does US domestic law regarding what they call "enemy combatants" fall into this definition? Nowhere! The article is about the Geneva Conventions! You're trying to make it about "unlawful combatants" in general, while still relying on the Geneva Convention definition--which the US version obviously does not rely on. Furthermore, if it is still being resolved in the courts, what are you doing trying to shoe-horn them together?!--Ben 01:42, 20 Mar 2005 (UTC)

Which parts of the USA section do you object to? Which parts are factually incorrect and which parts do you think have unbalanced POV? I knocked most of it together from other related Wikipedia articles and reading some of the external articles mentioned at the bottom of the page, it is far from perfect, particularly as no one else has copy-edited it yet and I am sure that it can be improved upon with little effort. Philip Baird Shearer 00:56, 20 Mar 2005 (UTC)

Their inclusion here is factually incorrect / POV.--Ben 01:42, 20 Mar 2005 (UTC)

Ok maybe you are right. Let me think about this. The main problem I have with combining them is that "(illegal) enemy combatant" has no precedent as law (in the United States code, and separate from the Geneva Conventions, and as far as I know--since the US does not have rules of war which apply to all parties), and I feel putting it with this article the American "unlawful combatant" gains legitimacy that is unwarranted. If they were separate the executive order to detain citizens (including American citizens like Padilla--even though it specifically says only non-US citizens, but somehow they spirited him away anyway) would have to stand on its own, legally speaking. But when they are together, it is quite easy to mistake the soundness as well as the legal definition as comparable. As far as I know, the US does not have its own "rules of war" nor is it officially in a state of war, but in a state of military operation or something? "Unlawful" suggests a law is being broken, when that is not necessarily the case to be detained as an "unlawful combatant" according to US law (or executive order or something), and "combatant" suggests a "war" with "sides" which quite frankly is completely defined by the US government and does not necessarily have a basis in reality. What's the difference between an unlawful combatant and a terrorist? Is it simply that Bush has declared "war" on terrorism? Why not just declare "war" on murder? Then anyone who is suspected of murdering someone, or even suspected of planning to murder someone can be detained without trial as an "unlawful combatant". This is why I have problems with putting them together. Writing as if the labels are synonymous confuses the issue and gives legitimacy through implication. If, as it seems, "unlawful combatant" is the concept, then it must be made EXTREMELY clear by re-writing the introduction and NOT about the Geneva Convention definition. It must be made clear that the article is about the concept of arresting people considered combatants in a defined conflict, who are not engaging in the conflict according to a set of laws. Thus, in the United States Domestic Law section, it must be made clear that THERE IS NO SET OF LAWS governing engaging in conflict, and furthermore, that the conflict itself is NOT DEFINED. Therefore, calling people "unlawful combatants" is completely ridiculous, but if that's what someone wants to call them, and it appears that some people do, I guess that's how it has to be.--Ben 05:12, 20 Mar 2005 (UTC)

The United States judicial system recognizes the international meaning of phrases like (lawful) "combatant" and "armed conflict", see the quote in the article from ex parte Quirin (1942). That these phrases are recognized as the same as GCIII was confirmed in Johnson v. Eisentrager (1950).

If one looks at international trials like the Nuremberg Trials, there is feed back with US domestic law. In cases like that of the Otto Skorzeny War crimes trial (http://www.ess.uwe.ac.uk/WCC/skorzeny.htm), there are a number of legal arguments on the wearing of enemy uniforms during World War II. One of these is the American Soldiers' Handbook, which was quoted by Defense Counsel, and says: "The use of the enemy flag, insignia and uniform is permitted under some circumstances. They are not to be used during actual fighting, and if used in order to approach the enemy without drawing fire, should be thrown away or removed as soon as fighting begins". So not only is US domestic law influenced by US international treaty obligations (and international customs of war), US domestic law interpretatons of these obligations have been fed back into international the case law.

This article starts by giving the International definition of what an unlawful combatant is not (and that is a lawful combatant). Having done that it then looks at specific countries. To date of those civilized countries who might worry about keeping to its international obligations, to my knowledge, only the US has invoked the concept in recent years. (If there are others, they will be added). The British for example did something similar in the 1970s by using Internment in Northern Ireland, and are currently doing something similar to the US with some alleged Islamic extremists. But in both cases the British did not invoke the international laws of war through defining the detainees as combatants in a war and using a military code of justice to get around inconvenient constitutional bumps in the road. From the perspective of the government of a country, this is an advantage of not having a written constitution!

Until 9/11 there was no serious 'de facto' divergence between US domestic law and international law, but there was a divergence in 'de jure' because the US has signed and ratified several international treaties since Quirin,eg the Geneva Conventions in 1949 and since JvE, for example the Torture treaty, 1987. These cases have to be brought to the attention of the US Supreme Court to do this. This is what is happening.

The US executive branch of government could use the term "detainees" to describe the detainees, but for its own reasons it chooses to call them "illegal enemy combatants" -- An explanation of why the administration choose to do this would make an interesting additional paragraph. As this article makes clear this is only a phrase used by the executive, and it then goes into detail about the current US judicial rulings on whether this is a "legal term" which applies to some of all of the detainees. The BBC article http://news.bbc.co.uk/2/hi/americas/3867067.stm is interesting because it reports:

The Pentagon is responding to the Supreme Court ruling and is trying to pre-empt any criticism from a US court. It is setting up three-officer review panels to determine whether a prisoner is a combatant. This is supposed to happen under Article 5 of the Third Geneva Convention which states that if there is doubt as to whether someone was a combatant, a "competent tribunal" should determine his status.

Also now that the Supreme court has ruled that civil courts can oversee the process I think that Hamden v. Rumsfeld (summary), on November 8, 2004, is significant in bringing the process into line with the international laws of war. As the Wikipedia article makes clear this process it not yet finished.

This wikipedia article does make clear, (as do the U.S. domestic courts), that if there is any dispute about whether a detainee is an (illegal) combatant, then they must face "a competent tribunal" under GCIII Article 5. This could be added to the introduction but as it is mentioned several times in the article, I think it would add unnecessary clutter to the introduction. If you disagree with me then perhapse this sentence from the section Prisoners of war could be added to the introduction:

If there is any doubt about whether an alleged combatant is a "lawful combatant" then they must be held as a Prisoner of War until their status has been determined by "a competent tribunal" (GCIII Art. 5).

The section on the USA makes it as clear that the term "IEC" is used by the administration and is not a legal one. It also goes into detail about the ongoing legal challenges to the detainment of US citizens and aliens under the military order. I am not sure how that could be made any clearer but if you think it is opaque perhpase you can re-write it to clarify it Philip Baird Shearer 11:28, 20 Mar 2005 (UTC)

Changes to first section

From:

Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without meeting the requirements for a lawful belligerent according to the laws of war as specified in the Third Geneva Convention.

To:

Simply, a person called an unlawful combatant (also illegal combatant or unprivileged combatant) is someone who engages in combat and, in doing so, violates the law.

Before it specified that international law was being broken specifically the definition in GCIII. Which law does it refer to now?

From:

Countries that identify such unlawful combatants may not necessarily accord them the rights of prisoners of war described in the Third Geneva Convention, though they may retain rights under the Fourth Geneva Convention in that they must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".

To:

The context in which the combat takes place is usually a war and the laws violated are related to the manner of that combat; for example, laws of war. One who engages within the laws relating to the combat are called lawful combatants.

It is not "usually a war" in which combat takes place. It is very difficult to fight a war since the UN charter came into force. Armed forces are usually engaged in "armed conflict" which may or may not be a declared war.

It is not possible to divide international law and domestic law into two section. Domestic law has to be subservient to international law. When two parties are engaged in armed conflict, enemy combatants are not expected to obey the domestic laws of their opponent. They are expected to conform to the laws of war. --Philip Baird Shearer 11:06, 22 Mar 2005 (UTC)

I have put back the original paragraphs and have added this one to address the issues rasised in the previous talk section.

The United States administration uses the term illegal enemy combatant to describe people detained by the United States under some Presidential military orders. However as the United States' courts have not yet ruled that any of the detainees have faced a "competent [military] tribunal", this phrase is not a legal description of the detainees status.

--Philip Baird Shearer 18:12, 23 Mar 2005 (UTC)

Status of Comintern

Question: Can anyone define the status of Comintern non-governmental combatants in the Spanish Civil War of 1936? (prior to the 1949 Convention which is what this article covers). Thank you Nobs01 01:40, 7 Jun 2005 (UTC)

Is this of any help:Geneva Convention 1929? --Philip Baird Shearer 01:00, 8 Jun 2005 (UTC)

Thank you. I don't see Comintern listed as a member of the League of Nations. So evidently "volunteers" of the Spanish Civil War (International Brigades, Abraham Lincoln Brigade etc) were non-governmental, non-state sponsored terrorist groups and illegal combatants without belligerent rights according to this document and the decision of Non-intervention committees of 21 February 1937 regarding their status. League of Nations Non-intervention Committee ban on "volunteers" 21 February 1937 Nobs01 01:46, 8 Jun 2005 (UTC)

In a war a combatant does not have to be citizen of the country fighting the war. Providing they were not mercenaries (which they were not because they were not fighting primarily for money) they should have been treated as other soldiers on capture. What makes you think thery were terrorists and illegal combatants? See Geneva Convention 1929 Annexed Regulations (my bolding):

ART. 1.The laws, -rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

To be commanded by a person responsible for his subordinates;
To have a fixed distinctive emblem recognizable at a distance;
To carry arms openly; and
To conduct their operations in accordance with the laws and customs of war.
In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

Also See ART. 3. The armed forces of the belligerent parties may consist of combatants and noncombatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war. That would seem to cover the International Brigades. Philip Baird Shearer 20:13, 8 Jun 2005 (UTC)

The question surrounders nuetrality and intervention; a "volunteer" from a neutral country could return to his "neutral" country which then put that country's status into question, i.e. it was harboring belligerents. Hence these "volunteers" could draw an entire nation into a conflict against that nations will. So the League Non-intervention Committee finally banned "volunteers", and many League members stripped them of citizenship so they became stateless. Nobs01 16:29, 9 Jun 2005 (UTC)

You have not explaind your assertion "were non-governmental, non-state sponsored terrorist groups and illegal combatants without belligerent rights". Where does this assertion come from? When a volunteer returned to a neutral country they are no longer a belligerents. Therefor the status of the neutral country was not brought into question. Which countries striped volunteers of citizneship? Britain and Ireland did not do so (infact I do not think that they can!), The USA was not a member and I do not think the USSR was, Was Germany and Italy? So which countries did strip volunteers of citizneship? Philip Baird Shearer 10:12, 9 Jun 2005 (UTC)

League of Nations Non-intervention Committee ban on "volunteers" 21 February 1937from the Columbia Historical Review has well researched information on the questions you just asked (USSR was a member of Non-intervention Committee). This article is about Dutch Comintern "volunteers" who returned to neutral Netherlands for R & R (Rest & Relaxation) then rejoined the fight. Also, France, which shares contiguous border with Spain, was the seat of Comintern efforts to recruit and coordinate volunteers. Portugal, likewise with common border, had the problem of volunteers seeking refuge and staging engagements across border (somewhat analagous to the Viet Cong using Cambodia in the 60's & 70's, or Palestinian terrorists crossing over into Isreal; the case of the Afghan Taliban is somewhat different, cause they can be seen as actively aiding unlawful combatants from thier supposed "neutral" territory). Britain, France and others stripped "volunteers" of citizenship, as the article cites and sources. There are interesting points to be considered here, International Brigades were infact incorporated into the Spanish Republican Army, yet the League sought to disallow the use of foreign volunteers. Franco's forces likewise got volunteers from Germany & Italy, and Franco's regime was not a League member, yet they were the ones requesting some protection for belligerent rights before they would agree to cooperating with League enforcement of the ban. Nobs01 16:29, 9 Jun 2005 (UTC)

References

Some relevent excerpts from aforementioned text:

It was not until December 1936 that Britain became concerned about the increasing number of foreign volunteers in Spain and began to lead the effort to stem the tide of foreign involvement. By this point, the volunteers had already begun to stream into Spain. On the side of the insurgent forces, the foreigners came predominantly, but not exclusively, from Germany, Italy, and North Africa; on the side of the Republic, nationals from many European countries were joined by nationals from other parts of the world, such as the United States. The first volunteers for the Republic joined the various Popular Front militias, each of which were usually controlled by a certain political faction. Until the reorganization and coordination of these militias into a central army in the fall of 1936, the general picture of the Republic forces was one of chaos and political fragmentation. The independent volunteers who had flocked to these militias and to Franco's forces were the least of the Non-intervention Committee's problems concerning the presence of foreign nationals in Spain. In mid-October, Largo Caballero, Premier and Minister of War for the Republic, agreed to incorporate Comintern-sponsored International Brigades into the newly reorganized army.

Since the Comintern had already established a recruiting center in Paris, the first volunteers arrived at the International Brigades' base in Albacete ...

Britain continued to lead the campaign against foreign interference in Spain amidst criticism from the British press that the government had failed to take any measures to prevent British nationals from volunteering in (37→) Spain. On January 11,1937, the government issued a statement proclaiming that, under the Foreign Enlistment Act of 1870, "any British subject volunteering for military, navy or air service on either side, or any person within the United Kingdom inducing others to volunteer" is liable "on conviction to imprisonment up to two years or to a fine, or to both fine and imprisonment."12At the same time, France agreed to a similar measure for its own nationals. At midnight, February 21, 1937, the Committee-wide ban on foreign volunteers went into effect, a ban which had been agreed to by even the previously-resistant nation of Portugal.13The first action taken by the Dutch to control the problem of foreign volunteers actually occurred one week before the Committee accepted the ban. On February 14, 1937, the New York Times reported that In order to prevent recruiting for the Spanish warring factions, the government of the Netherlands instructed provincial Governors to refuse passports...

...the first public mention of the Dutch policy revoking the citizenship of those who volunteered in Spain: "the Netherlands Minister in Paris has been asked to warn the recruits that they will lose their nationality on entering the government army."16What is interesting about the wording of this announcement is the reference to the "government army." From this brief mention, it appears that those nationals who chose to fight on the side of the Insurgents would not be subject to the same threat and punishment as were those who fought in the International Brigades. This quote may also signify that no Dutch nationals did, in fact, volunteer on the side of the Insurgents or that the government did not know of anyone who went to fight for Franco.The Netherlands government also permitted about 75 refugees on the side of the Insurgents to enter the country, an act which may have also endangered the official policy of neutrality.

In the summer of 1937, the British began to urge the withdrawal of all foreign volunteers "so that the Spaniards should arrive in the end at a Spanish solution of their differences."20From its conception, the plan was blocked by Franco and his forces, who insisted that they be formally granted belligerent rights before they would agree to the withdrawal plan. The British response to this argument was to insist that the issue of belligerent rights was to be resolved after the withdrawal of the foreign volunteers of both sides; only then would limited rights be granted to both sides.

See also:

LAWS OF LAND WARFARE:THE PRIVILEGED GUERILLA AND THE DEPRIVED SOLDIER,

I could not find one mention of Spain in this reference Philip Baird Shearer 18:54, 9 Jun 2005 (UTC)

Google search non-intervention committee volunteer belligerent rights brings up many good sources. Nobs01 17:46, 9 Jun 2005 (UTC)

I could not find a sentence in your Referencea which states that:

The British (or the French) "stripped volunteers of citizenship".
That the international volenteers were "non-governmental, non-state sponsored terrorist groups and illegal combatants without belligerent rights".

There is an additional point to be made here. When there is a civil war, the laws of war are not as clear cut as they are in an international conflicts. Often they revolve around a balance of power. The English Civil War is a classic example. At the start of the war the Royalists were going to HDQ Major Robert Lilburne as a traitor, but because the Parliamenterians held prominant Royalists he was exchanged. This was the pattern for the First English Civil War, POWs were recognised as such and treated under the customs of war of the day. But by the Second English Civil War, Parliament's New Model Army was much more powerful than the Royalit's armies and Parliament chose to execute many Royalists prisoners who fought in that war (including King Charles himself), or to sell them as indentured labour (slaves). -- Philip Baird Shearer 18:54, 9 Jun 2005 (UTC)

I have (if you haven't noticed) modified my initial premise; Comintern "volunteers" did in fact achieve some governmental & state sponsored status when some were incorporated into the Spanish Republican Army. This however, did not alter their "foreign national" status or that of being foreign "volunteers", to whom the ban was applied. Or for that matter being prosecuted by the country of origin for violating foreign enlistment laws (which, presumably, was the only deterent enforcement mechanism available). Penalties varied country to country, and losing one's country of origin citizenship was one such penalty, like in the case of the Netherlands. To return to my basic premise: Unlawful combatant is a term that was coined by Bush Presidential Councel Alberto Gonzalez about 3 years ago, to deal with a problem that has plagued international relations for generations. Indeed, the more one looks at this problem, the more it seems what we call "unlawful combatant" may be a chief cause for the failure of the League of Nations. Roosevelt insisted that Stalin disband the Comintern in 1943 as a prerequiste to the founding of the United Nations organization, the view being that rogue elements needed to be controlled if there is to be any dream of cooperation between nations (oddly enough, this view is supported by the German Foreign Office which places blame for the German invasion of the Soviet Union on Comintern activities (document dated June 22, 1941) [2]. So it seems the whole issue has more to do with cooperation between nations moreso than human rights or terrorists being forced to wear womens' panties. Nobs01 19:46, 9 Jun 2005 (UTC)

"Unlawful combatant is a term that was coined by Bush Presidential Council Alberto Gonzalez about 3 years ago" No it was not Read the Red Cross Article[3] which says that it has been in use for about 100 years. In the US it has been used since at least 1943 and the ex parte Quirin case. Both are mentioned in the article. Second an unlawful combatant is someone who breaks the laws of war. It does include Mercenaries, but it does not include people who fight for an army for other motives. If it did a large minority of the British Army would be unlawful combatants because they can be (and are) of any nationality so long as they take an oath of allegiance to the crown. The British Armed Forces are not really that at all, they are Armed Forces of the Crown or Her Majesty's Armed Forces, so one does not have to come from any particular nation to join Betty's Army. I think you are confusing "sovereignty" with "Nation State", the two often go together, but in the case of constitutional arrangements which go back a hundreds of years this is not always so Philip Baird Shearer 09:47, 10 Jun 2005 (UTC)

Excellent source and good comments. It may take me awhile to digest it all but here's a preliminary response: when you say, "an unlawful combatant is someone who breaks the laws of war.", this statement is ambiguous because it implies a "lawful combatant" who breaks the laws of war is striped of his lawful status and thrown into the same category of those without priveldge, whereas the article seems to state they are subject to prosecution under International Humanitarian Law. The "unlawful combatants", who enter the battlefield without privelege seem to be subject to a different process.

This is precisly the situation. For example see what happened to soldiers on both sides who broke the rules of war in World War II and were tried by an American Military Tribunal and an American court-martial under the laws of war: Malmédy Massacre Trial and the Biscari Massacre.

On pg. 5 it says “Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State,” are not protected “while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are”, seems to try and address the problems the League Non-intervention Committee encountered in 1937 regarding Comintern volunteers, i.e., "not protected" (though those words "not protected" evidently do not appear in the language of the originating text).

I think you have mis-undestood the passage. Please read the Wikipedia page carfully. There is proces which has to go throught with unlawful combatants under international law. All combatants must be treated as POWs and if there is a question about there status they must face a competent tribuneral. Only after they have been found to be unlawful combatants by the competent tribuneral do they loose the protection under GCIII. Just like all civilians there status under GCIV depends upon other things on their nationality.

The sovereignty issue you raise is extrememly interesting and one frankly I wasn't considering yesterday. Interesting question, is Comintern membership or al-Qeade membership somehow analagous to an oath to the Crown. This is where the issue of "state sponsorship" comes up. Probably not, being that the Comintern & al-Qeade are not contracting parties to international agreements.

No it is not analogous to an oath to the Crown because the Queen is a recognised sovereign of a sovereign land. But if someone fights in a war in a duly constituted army (recognised chain of command reporting to civilian government, etc) against "High Contracting Parties", although the Army may fight for a non-signatory to GCIII , the party will remain bound until such time as the non-signatory no longer acts under the strictures of the convention. So in the case of an al-Qeade member fighting for the Taliban when it was the de-facto government of Afghanistan, on capture, there is no question but they should have been treated as POWs until their status had been determined by a competent tribunal. This is not just what International pressure groups like Amnesty International have been saying but the American courts as well See the Wikipedia Article Unlawful Combatants for details. As for those captured away from a battle field, at American airports etc, personally I think that Bush was badly advised. War always sells newspapers and gets votes in the short term, but terrorists are better dealt with by domestic criminal law than trying to say they are combatants and then trying make criminal of them by proving they have broken the laws of war. Two very high hurdles to jump and it gives a propaganda victory to al-Qeade by making it seem more dangerous than it is and in a backhanded way to claim a sort of legitimacy. Philip Baird Shearer 18:45, 10 Jun 2005 (UTC)

Lastly, as the document states, "Whereas the terms “combatant”, “prisoner of war” and “civilian” are generally used and defined in the treaties of international humanitarian law, the terms “unlawful combatant”, “unprivileged combatant/belligerent” do not appear in them. They have, however, been frequently used at least since the beginning of the last century in legal literature, military manuals and case law."; by coined the phrase, I am referring to Alberto Gonzalez being the first to attempt to write into both U.S. legislation (not just Judicial findings) and International Law, the term Unlawful combatant, which did not exist prior to 2003. In this sense, he can be regarded as authoring the term (though clearly he drew it from these sources), or coining to use shorthand and a lame excuse to cover my ass. Thanx. Nobs01 15:37, 10 Jun 2005 (UTC)

"al-Qeade member fighting for the Taliban when it was the de-facto government of Afghanistan, on capture, there is no question but they should have been treated as POWs until their status had been determined by a competent tribunal."

What are the relevent passages regarding insignia, uniform, holding of arms vs concealed, etc., POW status does not necessarily apply immediately, until after a tribunal determines status, as I understand it.Nobs01 19:01, 10 Jun 2005 (UTC)

If they were fighting for the Taliban then they should have been held as POWs with all the protections that GCIII entitles them to until a "Competent Tribunal" (GCIII Article 5) decides that they are not lawful combatants. The wording is a treaty obligation and is quite clear:

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.

My interpretation of this is not an unusual one, see the USA section in the unlawful combatant article for details of the U.S. "On November 8, 2004, ...in Hamden v. Rumsfeld that no competent tribunal had found that Hamdan was not a prisoner of war under the Geneva Conventions" --Philip Baird Shearer 09:15, 11 Jun 2005 (UTC)

Yah but that presupposes all sorts of assumptions, No. 1 being that they were fighting for the Taliban as you phrase it. Just because a belligerent is in a War zone, engaged in belligerent acts (without considering the question of whether those acts are in compliance with customs of war), does not presuppose they were fighting on behalf of, or for the survival and continued sovereign existence of the Taliban. Nobs01 17:51, 11 Jun 2005 (UTC)

What you say is all true, BUT under international law it is up to a "competent tribunal" to decide the issues of whether a combatant is lawful or unlawful and while it is being decided the prisoner must be treated as a POW. U.S. domestic law, as defined by the Supreme Court, broadly supports this position. Philip Baird Shearer 21:04, 11 Jun 2005 (UTC)

Even that is a great leap forward, cause one has to deal with the rules of engagement for a non-signatory party or a belligerent whose status is yet to be determined. All the POW stuff comes after he's captured, assuming he lives long enough to get captured. The real problems are determined in the field, it's not always a matter of let him blow himself up as a suicide bomber (killing you too), then we'll capture him & determine his status before a tribunal. Nobs01 21:49, 11 Jun 2005 (UTC)

The rules of engagement in an armed conflict, must be within the laws of war or the soldiers if captured could themselves be judged to be unlawful combatants when placed in front of a competent tribunal if they have acted on rules of engagement which are judged to be in violation of the law of war. At the moment there are a number British soldiers under investigation for murder[4]. As to your worries about suicide bombers be so very glad that the insurgents in Iraq have yet to get on to the proxy bomb[5]. With suicide bombers you put one poor soldier to man the forward check post and so usually only one person (other than the bomber) gets killed. To circumvent this the IRA used to pick people who worked in the bases to drive their own cars or vans packed with explosives into the base, while their loved ones, often including children, are held at gun point somewhere else to enforce compliance. To check every vehicle coming into a base for a bomb, because anyone is a potential proxy bomber, and to do it in such a way that only one soldier is put at risk is not practical. Philip Baird Shearer 18:25, 13 Jun 2005 (UTC)

Right; what do rules of engagement have to say about identifying and making a judgement about a belligerents status at a distance, regarding insignia, hostile intent, etc., under the condition that there is enough time to make such, and the belligerent survives to be captured, then it appears that a judgement made by a soldier in the field will stick until such a time as a competent tribunal can make a determination. And further, the tribunals determination will often be based upon material derived from interrogation. Ultimately, it may be the interrogation process, i.e. the belligerents own words, that determine the status of the belligerent who survives the field and and makes it that far through the process. Nobs01 19:11, 13 Jun 2005 (UTC)

First of all lets agree that we are looking at international conflict. The British rules of engagement are very specific about this, Britian has signed the additional GC Protocol I with certain reservation[6]. If a combatant is captured[7] then they must be held as POWs until such time as a competent tribunal finds them to be an unlawful combatant. Under GCIII they may be interrogated but please see Wikisource:Third Geneva Convention Article 17 "Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. ... No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.". Article 20 "The evacuation of prisoners of war shall always be effected humanely and in conditions similar to those for the forces of the Detaining Power in their changes of station." Also see articles 6 (et al),13,14 etc. Philip Baird Shearer 22:23, 13 Jun 2005 (UTC)

The point I am making is, a lowly private in the field can observe a belligerent, make a judgement based on rules of engagement, that he is dealing with an "unlawful combatant"; then lets further assume that same private captures this belligerent alive. When the private turns the belligerent over to someone else, he reports his determination as "unlawful combatant". It appears, this determination has the force of Law, then is passed up the chain of command, until such a time as a competent tribunal is constitutied. The tribunal, is not like order takers at a McDonalds drive-thru window waiting to process on order. Under international law, I don't beleive a time frame or holding period is set. The tribunal has no facts of law to work with until the adjudged (by a lowly private) "unlawful combatant" cooperates in some measure with interrogation. If he is not in the service of a cosignatory, none of the name, rank serial number definitions apply. (Of course, he must be treated humanely, etc). Only when the belligerent begins to cooperate in some measure, can the tribunal hearing process begin. In sum, what it appears to me to be (I may be wrong), and even contrary to Mosaic Law, (i.e. by being uncorroborate), an "unlawful combatants'" preliminary status, as he enters the military judicial system, can be determined by the testimony of one lowly private, and the entire system adheres to it, until such a time as a competenet tribunal is sitting. Am I misreading this?Nobs01 00:44, 14 Jun 2005 (UTC)

GCIII make it quite clear that any combatant has to be treated as a POW until a competent tribunal decides otherwise, a private is not a competent tribunal. You are right no time frame is set, but before POW goes in front of a competent tribunal they must be treated as a POW under GCIII. Also note GCIII Article 12 specifically rules out your chain of command ideas "Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them."

The enemy combatant does not have to cooperate, under GCIII Article 17 "Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information." A competent tribunal may choose to call the friendly private to testify to what he saw etc but under GCIII (and natural justice) a combatant can not he made to testify against themselves. Philip Baird Shearer 01:24, 14 Jun 2005 (UTC)

What I am referring to is the initial determination of status can be made by a lowly private; if based on his observations, in his judgement a captured prisoner is an unlawful combatant, that judgement will not be overruled once the prisoner is released from his custody and transferred to someone elses. It is almost up to the belligerent to prove he is not an unlawful combatant through the interrogation process until such a time as a tribunal can be constituted. Nobs01 02:08, 14 Jun 2005 (UTC)

Please read GCIII. Look at such things as Article 17 and others, there is a concept of balance in it. One can not arbitrarily decide to punish a POW, one has to use a process similar to that which one's own soldiers would have to go through to decide guilt or innocence. In most "civilised nations" (See Nuremberg principles for what that means,) if a friendly soldier is accused of breaking the laws of war or a serious breach of the military code, they are entitled to a "competent tribunal" (court martial). For example British and American soldiers accused of maltreating prisoners were/are entitled to, and got, a court martial. They were not punished on the say so of one other private before that evidence had been tested at a court martial. It is the same for a POW, before they can be found guilty of a war crime they must face a competent tribunal which decides that there is a case to answer then (in many cases) they come Article 5 of GCIV "in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention". Philip Baird Shearer 20:26, 14 Jun 2005 (UTC)

All very true. But a captured belligerent deemed "unlawful" who survives the battledfield is subject to process. If, in that process, it is determined he is fighting on behalf of Allah, or some notion of Islamic brotherhood, against the forces of Dar al Harb, and as such has manifested hostile intent, contrary to the customs of war and laws of war, Allah, not being signatory to the conventions, does not entitle him to POW status. These issues of international law are far from being resolved, however I am happy the current U.S. administration has begun a serious examination of the problem.Nobs01 20:47, 14 Jun 2005 (UTC)

I don't not know if Afganistan is a signatory of GCIII but if they are not, the Nuremberg Principles "customary clause"[8] probably applies by now, but even it it does not, then see Article 2 last paragraph:"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. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof." Then one goes to GCIII Article 5. As I have said before this is not just any POV it is the POV of the American Supreme Court rulings in this area, see the USA section of the article:

On July 7, 2004, In response to the Supreme Court ruling, the Pentagon announced that cases would be reviewed by military tribunals, in compliance with Article 5 of the Third Geneva Convention[9]

--Philip Baird Shearer 11:08, 15 Jun 2005 (UTC)

Prior to 9/11 and for a short while thereafter, one was able to locate via internet a host of Islamic rulings or fatwas regarding the rules of war, what we would term rules of engagement, status of POW's, treatment of POWs and noncombatants etc. Many of these sites have been shut down or are now inaccessible, leaving suspect the validity of the sites remaining. One thing is clear, many of the belligerents we are now discussing were enemies of the Geneva Convention itself. The Geneva Convention being just a subsidiary organization of the forces of Dar al Harb which have invaded Islam and imposed Western hegemony through a system of nation statess, recognized by another universal creation of the forces of Dar al Harb, the United Nations. The territories of Islam that have been divided up into so-called "nation states" by the West then have corrupt sovereigns governing them, complicit with the West in furthering the war against Islam. These Islamic secular rulers themselves are enemies of God (Allah). I recall an Islamic ruling from one of the chief Imam's in London regarding participation in democratic parliamentary elections. The ruling essentially stated that any "man-made law" violated the First Pillar of Islam (There is One God, but Allah, and Mohammad is his Prophet), meaning that Allah is the sole Lawgiver, as spoken through the mouth of his Prophet Mohammad, (i.e. the Koran). That any attempted to supplant Allah as the sole lawgiver with manmade law is blasphemous, presupposing that democratic parliaments can replace the Divine Law of the Koran. Hence, participation in democratic elections is blasphemous, denying Allahs rightful place and purpose, and substituting the idol of manmade law. Under this interpretaion of International Law, there is no making a Peace Treaty with the enemies of God. And an Islamic ruler who does so is no more than an Infidal (this incidentally, is why Sadat was assinated, not because of the Peace Treaty with Isreal, but after accepting the Nobel Peace Prize, he truelly revealed himself as being in bed with the forces of Dar al Harb and a traitor to Islam. Because under Islamic Law, i.e. the Koran, which is the primary source document of Islamic International Law, there is no making peace with Infidels. The Realm of Peace (Dar al Salam) is perpetually at war with the Realm of Conflict (Dar al Harb). The warriors of God are perpetually at war with the enemies of God, at least til they convert or pay the dhimmi tax.) O.K., now comes the arguement used 100 years ago, "these fundementalists are all crazy, and what the West needs to do is find secular leaders, (who cares if they are corrupt), to sign and enforce these International Agreements so there can be "Peace" in the world, trade, commerce, intercourse between nations, etc." Sure, lets try it again, and ignore the real issues. Lets bind ourselves to a bunch of bullcrap, pretend the real problems don't exist, and in a hundred years time, let another generation deal with these problems. (end of Part I) Nobs01 16:16, 15 Jun 2005 (UTC)