Talk:Unlawful combatant

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[edit] Article needs to account for Common Article 3

This was the section in Talk:Unlawful combatant/Archive 5#Article needs to account for Common Article 3 which had been edited in the last week. Discussion over whether to rewrite the lead to delete repetition and include mention of common Article 3 of the Geneva conventions in the lead. To date no consensus that Article 3 should be mentioned. Two out of the three editors in the conversation agree that it could be simplified, the third editor has not expressed an opinion on this. --Philip Baird Shearer (talk) 10:01, 7 February 2008 (UTC)

---

What was the rationale for leaving out Common Article 3? It's the only part of the GCs that applies to current events. I'd think it should be included no matter what.

Some of the rest needs to be moved into the appropriate locations within the body of the article, or at least clarified. For example, the statement "There is no intermediate status" doesn't apply to Art.3. Nor do competent tribunals.

I still think the first paragraph of Unlawful combatant#International law and practice would make a better lead than what we have now. Perhaps even the first two.

I'm not sure why you removed the entire conversation, but it's fine with me. That clearly wasn't getting anywhere.

-- Randy2063 (talk) 17:12, 7 February 2008 (UTC)

For the record, I do not support the inclusion of Common Article 3 in the lead. Rama (talk) 18:12, 7 February 2008 (UTC)

I did not remove the thread, I archived it using the move procedure along with the rest of the talk page. Move is better when there has been passionate disagreement on the talk page as it is easy to see that the archive is a true copy of what has been said. I decided not to copy the current thread back to this section because it was long and there is no point using up a large chunk of 32K with text already in an archive. So I decided to put a link at the top of this section with a summary. As I stated earlier in the thread (now archived) I do not support the inclusion of Common Article 3 in the lead, as it includes a complication that is better discussed in the and the US specific section and/or the Persons who are not prisoners of war in an internal conflict section because it specifically covers "not of an international character". I am though open to a culling of repeated points in the introduction. --Philip Baird Shearer (talk) 19:11, 7 February 2008 (UTC)

The wording at the start of Article 3 is "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties" Which the ICRC commentary says "It applies to non-international conflicts only, and will be the only Article applicable to them until such time as a special agreement between the Parties has brought into force between them all or part of the other provisions of the Convention." How is it Randy2063 that you think that it covers the US war on terror? Surly it is better covered by the concept of brigandage (but then of course the war on terror would not be a war on terror but a policing action like that of the navies of the world against piracy which is a well established concept under international law. --Philip Baird Shearer (talk)

It wasn't my personal belief that Art.3 applies. I didn't think the GCs applied at all. There were legal experts who thought it didn't. But the SCOTUS thought that it did, and so we're stuck with it. Brigands don't have the same aspirations, and they don't normally have nerve gas projects under development. The scale of this threat extends well beyond shipping lanes and distant lands.

I can understand not wanting to introduce complications into the lead. If you'll notice, my suggestion for using the section on International law and practice didn't include Art.3.

The trouble is, if you don't want Art.3, then Art.4 doesn't belong in the lead either. By your own reasoning, Art.4 of no relevance to current events whatsoever. And to cite Art.4 while saying "there is no intermediate status", the readers will come away thinking all detainees are entitled to a competent tribunal -- which is clearly not true.

You can't say current events don't matter. That's the reason why most people reading this article are here. The only image this article has is of GTMO (although Camp X-Ray was a temporary facility, and so it's not technically a "current event"). Readers are being misled if they walk away thinking that Art.4 is all there is.

-- Randy2063 (talk) 20:24, 7 February 2008 (UTC)

The Wikipedia article brigandage only touches on this subject do a Google search on [brigandage international law], for example see footnote 37 on this page that comes up in the first 10 returned by the search (or Google [brigandage Hague]). The trouble is that war is a political headline grabber, but if the US government was to spend more time on a concept such as brigandage, they could in the long term get better results. But then again having squandered much of the goodwill they had after 9/11 maybe now it is too late. Then again it is usually relatively easy to get states to agree to treaties banning criminal behaviour that threatens all states interests. Anyway this is way beyond this article and I do not think you have yet put forward an argument for including Article 3 in the introduction. --Philip Baird Shearer (talk) 20:55, 7 February 2008 (UTC)

Article 4 does belong in the introduction because it is the standard definition of what is a legal combatant in an international conflict, as is Article 5 as it describes what to do if there is any dispute over the status of a POW. --Philip Baird Shearer (talk) 20:59, 7 February 2008 (UTC)

I'm not of the opinion that the full extent of the world's post-9/11 goodwill was ever genuine. Or that the U.S. could have done anything reasonable that would have retained its appearance. If you have plenty of time, here are two links that look at that (a and b).

I'll do that google search. I'm not sure how that would matter very much, as pirates aren't due very many rights either.

The link you gave me finds this text: "also cases which recognized the liability for the acts of brigands abroad on the basis that there was a duty on the home state to suppress brigandage." (I can't see it on the page, but the search function also leads me there, and gives me that quote in a separate window.)

That means countries are responsible for pirates and combatants launching from their soil. It's why the Swiss had to fight any warplane (Allied or Axis) that trafficked through its airspace during WWII. And it's why Cambodia was responsible for Viet Cong sanctuaries. But I don't know how you intended it here, or if I even got the right page.

We still need to remove Art.4 (and Art.5) if we don't have Art.3. International conflicts aren't all there is. Again, you're only telling half the story, and it's the half that leaves readers believing a falsehood. The primary standard should be, what will readers come away thinking? If they believe Art.4 always applies, which is how the lead currently reads, then they've been misled.

-- Randy2063 (talk) 21:54, 7 February 2008 (UTC)

Numerous scholars and institutions think either 3 or 4 applies. So, unless your opinion is more important I think we should present sourced infornation and not our opinions. Nomen Nescio^{Gnothi seauton} 07:29, 8 February 2008 (UTC)

I don't disagree with that. SCOTUS says Art.3 at this point in time but I have no problem presenting the full range of opinions.

-- Randy2063 (talk) 16:05, 8 February 2008 (UTC)

Furthermore, we want to present sourced facts based on relevance and notability.

I cannot but notice that Randy2063 cites opinioned editorials (of a rather extreme right-wing flavour), and makes blurry allusions to "nerve gas projects under development" without proper reference. This seems to echo the claims made by the Bush administration to push for the invasion of Iraq, claims which are now known to have been falsehoods. Said as it is, this is nothing but one of these vague threats which contribute nothing to the clarity of the argument and induce unwarranted emotional reactions. In the same vein he used the term "fascist" to qualify Al Qaida, a blatantly historically incorrect extreme Right-wing slogan, again contributing nothing in clarity and stirring purely emotional reactions.

This pattern of cavalier attitude towards relevance and reality makes it appear as if Randy2063 has decided in advance of what the article should say, and that the rest is nothing but an advertisement campaign to push for it. This sort of one-sided, disproportionate argumentation is fine for a blog, but it is not a serious way of writing an encyclopedia. Rama (talk) 07:59, 8 February 2008 (UTC)

This is a talk page and we don't cite every off-hand comment. But here you go. It's not the most famous example but I'm not digging around for that one when it was just an incidental comment on a point that most people either knew about, or wouldn't dispute that it happened.

As for my supposedly "right-wing" views, that's a case of the pot calling the kettle black. Your biases are rather obvious. If you look at this article's sources you'll see a number of liberal sites but no conservative ones. The difference is, I'm trying to present a balanced article. I'm not asking to censor one side of the story simply because I disagree with the experts who take that side. You are.

Yes, there are some lawyers who say Al Qaeda members are due GCIII privileges. I don't know of any moderate ones, but there are a few on the left. On the other side there are those who said the GCs didn't apply to this war at all. In the middle there are those who say Article 3 applies, and that's a prominent view. The two latter views are the ones you're censoring, and it includes the decision of the U.S. Supreme Court.

I've seen some biased articles but this one takes the cake.

-- Randy2063 (talk) 16:05, 8 February 2008 (UTC)

You appear not to realise that what you regard as "the other side" is in fact a very fringe view. It is proper to mention it, but not to give it as much weight at the view of the vast majority of the world.

Don't use terms like "censoring", it's only weakening your point. Rama (talk) 16:39, 8 February 2008 (UTC)

As for your references, you tend to exhibit more or less strident editorials by non-notable people, or vague rumours. This is a weak use of sources. A more appropriate and stronger way is create a sort of baseline by quoting notable and well-informed people with a known political leaning, going against the usual perception of their "side"; for instance Friedman (George Friedman, founder of Stratfor) saying that the USA capture people on a "quasi-random" basis, and claiming that the Abu Graib scandale was not due to isolated black sheeps but to a policy. Rama (talk) 16:49, 8 February 2008 (UTC)

You appear to be saying that Wikipedia must consider the position of the U.S. Supreme Court to be a "fringe" legal theory.

-- Randy2063 (talk) 17:44, 8 February 2008 (UTC)

Randy2063, I presume that you are referring to Hamdan v. Rumsfeld (Hamdan v. Rumsfeld(June 29, 2006)). Are you? --Philip Baird Shearer (talk) 18:05, 8 February 2008 (UTC)

Yes, that's what I meant.

Maybe I should work through this another way: If we ignore this war for the moment, is it your opinion that the definition of "unlawful combatant" does not include non-international conflicts? Or, if you agree that it does, then what is the justification for making it seem otherwise?

I see that we're using HRW as a source. Why not the ICRC's papers? It's still an opinion, but at least it was written long before this war, and so (unlike HRW) they didn't shoehorn their POV specifically to oppose the U.S.

Am I the only one that has no problems presenting each side's position?

-- Randy2063 (talk) 19:01, 9 February 2008 (UTC)

The first point is that the US Supreme Court's judgement is highly complicated because it can be read in several different ways and as such is not suitable for inclusion in the introduction. AFAICT the only issue that the US Supreme Court's judgement gives the US government wriggle room over is how the US government should treat detainees before they are tried. It did not rule on if the US government MUST treat detainees as POWs before they are tried. Whether the Article 5 "competent tribunal" is expanded to a "regularly constituted court" to decide not only their status, but if they are an unlawful combatant to rule on any crimes they have committed, is no different from how the Geneva conventions can function in a regular war between states. That the Supreme court also included GC IV and Article 75 of Protocol I in its analysis to me suggests that if asked it might well rule that detainees should be treated as POWS before a trial by what ever the tribunal that ties them is called. It seems to me that the US Supreme Court's judgement was an elegant way of making the US government apply the Geneva conventions despite the argument that it only applies to wars between state parties to the conventions.

After I had written the above I thought as it was just my opinion, I had better check if anyone else who is more qualified agreed with me:

The majority opinion, written by Justice Stevens and joined by Justices Breyer, Souter, Ginsburg, and Kennedy, held that the military commissions established by the Bush Administration exceeded executive authority. Refraining from the debate about the judicial enforceability of rights protected in the Conventions, the Court declared that the Geneva Conventions were part of the laws of war, and, as such, constrained the construction of military commissions.14 The Court also evaded the question of the general applicability of the Conventions to the conflict with al Qaeda. At the very least, Common Article 3 applied, including its requirement that enemy combatants be subject to a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

...

The next question is whether the Third Geneva Convention governing the status of prisoners of war (“POWs”) applies to combatants captured in the conflict with al Qaeda, which is clearly not a high contracting party to the Conventions. ... As none of the opinions addressed the validity of the CSRT process, the issue could recur.[1]

A further complication is that the US Supreme Court's judgement does not exclude civil wars so then one would have to include the domestic "state of emergency laws" of every party to the convention to see how it should be interpreted. As I said this is far too complicated for the introduction so better to leave the introduction to just the standard interpretation of the law and the rest to specific municipal law sections. --Philip Baird Shearer (talk) 10:14, 10 February 2008 (UTC)

I did say "at this point in time". They could certainly expand this later when they rule on a Taliban member. But if you'll note, they did not now say a competent tribunal is required for Hamdan. They also had an opportunity to say GCIV applies, and they didn't. They said Common Article 3 applies to al Qaeda.

Note, too, that Boumediene v. Bush is not heading in your direction. For the most part, it seems to me that the critics are now concentrating on civil rights detainees might gain if GTMO is somehow ruled to be sovereign U.S. territory. Nor do I see anyone arguing for GCIII treatment on behalf of the detainees in Bagram. Common Article 3 is where we're at.

Regardless, the fact that SCOTUS might one day, possibly, if everything works out the way you hope, eventually ruling that a fraction of current U.S. policy is incorrect then that doesn't justify writing the article as if your position were true today.

It's rather funny to think that the article is too complicated for the truth about Common Article 3 but not too complicated to mention the Military Commissions Act of 2006, Celebici, "no intermediate status," and "do not expressly contain these terms" (twice).

Whether or not the Hamdan ruling is too complicated, one thing is black and white: Wars pertaining to Common Article 3 do not require a competent tribunal. Whatever else you might think, you have to understand that the introduction is factually wrong.

That something is too complicated for the lead doesn't mean we can reduce it to a fairy tale. The lead must be entirely truthful. This one is not. In fact, every paragraph makes an incorrect statement, and the error always defaults to the anti-U.S. position.

The actual truth doesn't require too much more. We simply need to remove the absolute statements.

-- Randy2063 (talk) 20:09, 10 February 2008 (UTC)

Randy2063, international law is not written by the USA. You seem to focus on the Supreme Court of the USA as if it could write it at its convenience. Rama (talk) 14:27, 4 March 2008 (UTC)

International law recognizes that a nation's lawmakers and judiciary are part of the process. If you can cite comparable bodies in other countries then please go right ahead. I'm eager to see everyone on the record as to where they stand. I want their positions to never be forgotten.

One source used at present, Human Rights Watch, is an NGO financially dependant upon shrill fundraising, and much of it from biased activists. It has no legal authority whatsoever. Yes, their opinions are interesting, and I'm in favor of listing them here, but only as opinions. They are not the law.

Note, too, that I also cited the ICRC. I'll have more from them in future edits to this article. They're not the final word but, unlike HRW, the ICRC does have some standing on this matter, and they did contribute to the drafting of these treaties.

-- Randy2063 (talk) 01:17, 5 March 2008 (UTC)

[edit] Lead March 2008

I have reverted the changes to the lead because:

• International law protects members of armed forces and their associated militias in wars between two or more nation states. International law does not protect members of armed forces, it protects them on capture (and in some other areas like bans on some weapons).
• Civilians and mercenaries found by a competent tribunal to be operating independently as combatants they do not have to be operating independently.
• ... as combatants in such a conflict are not sanctioned. I have no idea what this means!
• "Their rights and privileges are limited to those of the Fourth Geneva Convention," Not true depending on their nationality and the definition of a mercenary almost certainly excludes them from the protection of GIV.
• "International law does not recognize a lawful status for any combatants in conflicts not involving two or more nation states." International law is not codified law so it is not relevant what International law does not cover what is relevant is what it covers and the wording of the article should reflect that. Besides it is no longer true, see for example United Nations Security Council Resolution 1674 ("Duty to care") note that "war crimes" are covered. Many war crimes are considered to be universal particularly those that breach the customs and usages of war as described in the Hague conventions. There are other treaties such as those that cover the use of mercenaries (UN Mercenary Convention) and child soldiers that cover combatants in a civil war. Also with regards to the Geneva conventions if a none state party in a civil war agrees to abide by the Geneva conventions then the state party as a signatory is also bound by the Geneva conventions. It would be much better to use wording similar to that of the ICRC commentary "In the case of armed conflict not of an international character [between states], ... the Parties to the conflict are legally only bound to observe Article 3 [of the Geneva Conventions], and may ignore all the other Articles. But each one of them is completely free -- and should be encouraged -- to apply all or part of the remaining Articles of the Convention." --Philip Baird Shearer (talk) 12:30, 4 March 2008 (UTC)

Everything you find wrong in my version could be fixed. It's fine if you want to work from the present version but it can't remain the way that it is now.

My intention was to make it simpler, clearer, and to remove the errors. I won't argue that some of my words shouldn't be changed. You may say it's not good enough, but the old version you replaced it with is far more cumbersome, and it's less truthful. Regardless of whether anyone would like to think GTMO detainees deserve a competent tribunal, there's no doubt that the current lead is deceptive when it implies a competent tribunal is always required in any conflict.

Again, most people coming here now will be specifically interested in how it applies to current events. Article 5 of the GCIII has a place here but not in the first paragraph.

Looking at the wording similar to that of the ICRC commentary would be a good start.

I still don't think mercenaries are important for the lead, but I had added it because you seemed to think it was. On saying "operating independently", I was trying to be brief, but it is nevertheless one way to make it concise. A look at the UN Mercenary Convention makes me think "operating independently" still works.

-- Randy2063 (talk) 01:17, 5 March 2008 (UTC)

Operating independently does not work because unlawful combatants would usually be taking orders in a chain of command. For example members of the Boer Commandos were in a chain of command but they were shot if caught in parts of British Army uniforms (see Commando by Deneys Reitz, Chapter 22). As were members of the SS caught in American uniforms during Operation Greif. I think you have to consider the broader picture for the lead on what is an unlawful combatant. --Philip Baird Shearer (talk) 11:56, 5 March 2008 (UTC)

The chain of command doesn't count if it hasn't been extended from any recognized nation's leadership. That's what I meant by operating independently. Even so, we could find another term.

I don't think the perfidious SS troops were technically unlawful combatants. (Perhaps we should look into the difference between "unlawful" and "illegal") For that matter, I don't think child soldiers fit the definition either.

I am considering the broader picture. That's why I had posted a general description for the lead. It's the current one that's too detailed in one direction, while omitting others.

-- Randy2063 (talk) 22:22, 5 March 2008 (UTC)

If the SS fired their guns in enemy (American) uniforms they were breaking the laws of war (this is very similar to the ex parte Quirin case were "unlawful combatant" is used to describe such actions). What distinction are you making between unlawful and illegal because the OED says unlawful "1.a Contrary to law; prohibited by law; illegal." and for illegal "Not legal or lawful; contrary to, or forbidden by, law." while Merriam-Webster says unlawful "not lawful : illegal" and for illegal "not according to or authorized by law : unlawful, illicit; also : not sanctioned by official rules (as of a game)"? --Philip Baird Shearer (talk) 10:58, 6 March 2008 (UTC)

In Quirin, I don't think the would-be saboteurs were passing themselves as military at that trial. (I've read they wore German naval uniforms until they were safely on the beach, just in case they were caught, and then ditched them.)

I think it's different with those SS. There's no reason to believe they wouldn't have had their ID cards as members of the armed forces (or associated milita). That would make them lawful combatants who violated the laws of war. In other words, being a war criminal doesn't make one an unlawful combatant.

There is a difference between unlawful and illegal. I'm unsure at the moment how it's relevant to this article, but it may be worth looking into.

-- Randy2063 (talk) 00:20, 7 March 2008 (UTC)

The Quirin Judgement gave an example "Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. ... 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." So even if combatants who fight in enemy uniforms are "carrying their ID cards as members of the armed forces (or associated milita)" they would still be unlawful combatants as defined by the US Supreme Court. --Philip Baird Shearer (talk) 12:01, 7 March 2008 (UTC)

That's merely saying they're all subject to trial by military tribunal. It's not saying they were all examples of unlawful combatants. But it does make me rethink this, as it implies that the defense tried to call themselves POWs.

I'm also rethinking the use of children. I don't think it's relevant.

-- Randy2063 (talk) 15:15, 7 March 2008 (UTC)

[edit] At War With Nonstate Entities

While looking for sources US military sources on the Courland Pocket I came across an article which has the word Kurland in it and is relevant to this page, the PDF document is Panel 5—Non-State Actors, the US Army, and the Law of War At War: At War With Nonstate Entities by Lee A. Casey and David B. Rivkin Jr. (Baker Hostetler Law Firm) "The authors practice law in Washington, DC and served in the Justice Department under Presidents Reagan and George H.W. Bush. The views expressed herein are their own." It is worth reading as it helps explain why the US in particular have problems in this area. --Philip Baird Shearer (talk) 15:05, 11 March 2008 (UTC)

This is a good find. It explains the history well.

It's not just the U.S. with problems in this area, unless we assume that other countries just don't worry about it too much (and they probably don't). Some of them certainly did care at one time, as this quote suggests:

As explained in the British Military Manual used during the World Wars: “[p]eaceful inhabitants...may not be killed or wounded, nor as a rule taken prisoners, and they have other privileges.... If, however, they make an attempt to commit hostile acts, they are not entitled to the rights of armed forces, and are liable to execution as war criminals.”39

Source 39 refers to: War Office, Manual of Military Law, 238 (HMSO 1914).

That source could be useful in finding out if they also used the term "unlawful combatant" or something else. It's rather strange that this article's other language variants seem to talk only about GTMO. (I haven't checked them all closely but that's the impression I got from a couple of them.)

-- Randy2063 (talk) 00:00, 13 March 2008 (UTC)

I found another reference containing a quote from the 1914 British Military Manual:

Article 7 is a "get out of jail free" card of sorts that provides an interesting perspective on military actions in support of colonialism: "It must be emphasized that the rules of International Law apply only to warfare between civilized nations... They do not apply in wars with uncivilized States or tribes"[2]

(I assume that his spellchecker had Americanized the quote.)

Unfortunately, it still doesn't say if unlawful combatants were called "unlawful combatants" or something else.

-- Randy2063 (talk) 20:40, 12 April 2008 (UTC)

A Manual of Public International Law By Thomas Alfred Walker, published by Cambridge University Press in 1895, does use the term "unlawful combatant" on page 138; "The distinction of lawful and unlawful combatant being thus premised, it may be laid down as well recognised law that...". Declaration of War By Douglas Owen, Sir Douglas Owen, a book covering the impact of war on insurance policies, published in London in 1889, uses the phrase on page 7: "Included mainly in order to indicate the characteristics which mark the distinction between the lawful belligerent and the unlawful combatant, or pirate." Both of these works may be found in http://books.google.com. I haven't been following the discussion here recently, but for stuff like this, Google books is a great source. scot (talk) 16:36, 14 April 2008 (UTC)

Thanks! I'll make a point of looking through this. Although we can't call it the "earliest reference" without a source saying that, this article should quote the earliest one we can find just for people to know that it goes way back.

-- Randy2063 (talk) 23:47, 15 April 2008 (UTC)

Right; a good way to word this is "The distinction between lawful and unlawful combatants in international law was made as early as 18xx..." and then briefly note the context of the source. scot (talk) 13:50, 16 April 2008 (UTC)

We already have a mention of 100 years in the article from this source "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. The connotations given to these terms and their consequences for the applicable protection regime are not always very clear." (Page 46) --Philip Baird Shearer (talk) 22:30, 16 April 2008 (UTC)

Yes, but I think specific examples are desperately needed. There are still far too many people who think the concept was invented by the Bush administration.

Even this article has a section on Unlawful combatant#International criticism of unlawful combatant status that begins as though it never existed before.

-- Randy2063 (talk) 17:18, 22 April 2008 (UTC)