UNLAWFUL COMBATANT

There is NO uniform requirement for belonging to the armed forces..

A member of the regular armed forces does not include a requirement of a fixed insignia under the GC. You can't show me anywhere it does.

Sec. 948a. Definitions

``In this chapter:
``(1) Unlawful enemy combatant.--(A) The term `unlawful
enemy combatant' means--
``(i) a person who has engaged in hostilities or who
has purposefully and materially supported hostilities
against the United States or its co-belligerents who is
not a lawful enemy combatant (including a person who is
part of the Taliban, al Qaeda, or associated forces); or
``(ii) a person who, before, on, or after the date
of the enactment of the Military Commissions Act of
2006, has been determined to be an unlawful enemy
combatant by a Combatant Status Review Tribunal or
another competent tribunal established under the
authority of the President or the Secretary of Defense.

It would be nice if there was a clearly defined criteria, as in (i) but without (ii) which seems to render (i) moot.

FreeDuck wrote:

It would be nice if there was a clearly defined criteria, as in (i) but without (ii) which seems to render (i) moot.

The criteria is Article 4 of the Third Geneva Convention of 1949.

Any combatant who meets the requirements of that article is a lawful combatant.

Any combatant who does not meet the criteria of that article is an unlawful combatant.

parados wrote:

There is NO uniform requirement for belonging to the armed forces..

Yes there is.

(pointless emoticon removed)

parados wrote:

There is NO uniform requirement for belonging to the armed forces..

Yes there is.

(pointless emoticon removed)

FreeDuck wrote:

It would be nice if there was a clearly defined criteria, as in (i) but without (ii) which seems to render (i) moot.

The criteria is Article 4 of the Third Geneva Convention of 1949.

Any combatant who meets the requirements of that article is a lawful combatant.

Any combatant who does not meet the criteria of that article is an unlawful combatant.

Article 43.-Armed forces
1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.
2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

Article 44.-Combatants and prisoners of war
1. Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.
2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.

3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

(a) During each military engagement, and

(b) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c).

4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.

5. Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities.

6. This Article is without prejudice to the right of any person to be a prisoner of war pursuant to Article 4 of the Third Convention.

7. This Article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict.

Article 75.-Fundamental guarantees
1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:

(a) Violence to the life, health, or physical or mental well-being of persons, in particular:

(i) Murder;

(ii) Torture of all kinds, whether physical or mental;

( iii ) Corporal punishment ; and

(iv) Mutilation;

(b) Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;

(c) The taking of hostages;

(d) Collective punishments; and

(e) Threats to commit any of the foregoing acts.

3. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:

(a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;

(b) No one shall be convicted of an offence except on the basis of individual penal responsibility;

(c) No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;

(d) Anyone charged with an offence is presumed innocent until proved guilt according to law;

(e) Anyone charged with an offence shall have the right to be tried in his presence;

(f) No one shall be compelled to testify against himself or to confess guilt;

(g) Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(h) No one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;

(i) Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and

(i) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.

5. Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women. Nevertheless, in cases

where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.

6. Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this Article until their final release, repatriation or re-establishment, even after the end of the armed conflict.

7. In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply:

(a) Persons who are accused of such crimes should be submitted for the purpose of prosecution and trial in accordance with the applicable rules of international law; and

(b) Any such persons who do not benefit from more favourable treatment under the Conventions or this Protocol shall be accorded the treatment provided by this Article, whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol.

8. No provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.

Omar may or may not be justifiably considered a member of al Qaeda. Very likely, when he threw that grenade, he was just a frightened boy, wh had incredibly survived the shelling of the house in which all of his companions were killed. After five years of American hospitality at Guantanamo, no one should be surprised if it actually has made him into a terrorist.

Setanta wrote:

Omar may or may not be justifiably considered a member of al Qaeda. Very likely, when he threw that grenade, he was just a frightened boy, wh had incredibly survived the shelling of the house in which all of his companions were killed. After five years of American hospitality at Guantanamo, no one should be surprised if it actually has made him into a terrorist.

There's also a video-tape of Omar planting mines where it was known US soldiers would travel.

And his 15 years with his parents probably had a lot to do with his becoming a terrorist.

oralloy wrote:

FreeDuck wrote:

It would be nice if there was a clearly defined criteria, as in (i) but without (ii) which seems to render (i) moot.

The criteria is Article 4 of the Third Geneva Convention of 1949.

Any combatant who meets the requirements of that article is a lawful combatant.

Any combatant who does not meet the criteria of that article is an unlawful combatant.

Can you show me where the law says so?

Under this article (ii), the only criteria for you being an unlawful enemy combatant is that the combatant status tribunal says so. Once you're covered under (ii), it's irrelevant if you actually have "engaged in hostilities or [have] purposefully and "materially supported hostilities against the United States." It's enough that the tribunal says you have.

And I can't see where the act provides any procedural guarantees that the tribunal will make its judgment, or that you can correct the tribunal's errors after it made them. But again, maybe you can show it to me.

oralloy wrote:

parados wrote:

There is NO uniform requirement for belonging to the armed forces..

Yes there is.

(pointless emoticon removed)

No there isn't.

As Parados already pointed out:

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:

. . .

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

And:

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.

This is from the Geneva Convention Relative to the Treatment of Prisoners of War, to which the United States is signatory.

Basically, conservatives are whining now because our own system of military justice is facing up courageously to the illegality and shambles of the "detention" racket at Guantanamo.

One thing is certain though, which is that no matter how many lies conservatives tell about it, the Geneva Convention Relative to the Treatment of Prisoners of War, which the United States did sign, provides for all of those detainees--except, of course, the ones who were kidnapped away from a war zone.

By the way Oralloy..
This is what protocol 1 says..

I see NOTHING about a uniform being required...

Quote:

Article 43.-Armed forces

Any combatant? Well, how do you define combatant?

Planting mines is not a prohibited activity that makes one an unlawful combatant.

That is a protection for civilians who spontaneously take up arms. It has nothing to do with the requirement that members of armed forces wear a proper uniform in combat.

There is no "customary" requirement that "lawful" combatants wear a uniform.

The Convention never mentions "customary requirements."

In the case of Omar Khadr, the military tribunal which determined his status did not declare him to be an unlawful combatant, so your argument is specious.

And that is the point of this thread, the military tribunal being the "competent tribunal" mentioned in the Convention. I didn't name this thread "Omar Khadr," i named it "Unlawful Combatant," because that is the issue--whether or not and who is to be considered an unlawful combatant among those currently held in Guantanamo.

Khadr only enters into the discussion because of the dismissal of his case by a military tribunal based on his classification as an "enemy combatant." Based on the convention, that makes him a soldier, whether or not you like the way he chose to dress for the party.