UNLAWFUL COMBATANT

Quote:

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.

You keep saying this but you have never quoted where this requirement is.

I have quoted the GC which only states one need be a member of the armed forces. No requirement anywhere in the GC that a uniform is part of being in the armed forces.

I see, so if something is NOT in the GC then it must exist?


What nonsense Oralloy.

You can't provide the requirement from the 3rd, from the 2nd or from the 1st GC. There is no such requirement in the GC. You can spout and sputter and demand we believe you but you can't provide any quote or any proof. You are doing nothing but delivering nonsense Oralloy.

Customary law?

Oh.. where can I find this law?

or did you make it up?

Thomas wrote:

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.

The procedures of the Combatant Status Review Tribunal are discussed a bit here:

http://en.wikipedia.org/wiki/Combatant_Status_Review_Tribunal

1-6. Tribunals
a. In accordance with Article 5, GPW, if any doubt arises as to whether a person, having committed a belligerent act and been taken into custody by the US Armed Forces, belongs to any of the categories enumerated in Article 4, GPW, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

b. A competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status who has committed a belligerent act or has engaged in hostile activities in aid of enemy armed forces, and who asserts that he or she is entitled to treatment as a prisoner of war, or concerning whom any doubt of a like nature exists.

c. A competent tribunal shall be composed of three commissioned officers, one of whom must be of a field grade. The senior officer shall serve as President of the Tribunal. Another non-voting officer, preferably an officer in the Judge Advocate General Corps, shall serve as the recorder.

d. The convening authority shall be a commander exercising general courts-martial convening authority.

e. Procedures.

(1) Members of the Tribunal and the recorder shall be sworn. The recorder shall be sworn first by the President of the Tribunal. The recorder will then administer the oath to all voting members of the Tribunal to include the President. (2) A written record shall be made of proceedings. (3) Proceedings shall be open except for deliberation and voting by the members and testimony or other matters which would compromise security if held in the open. (4) Persons whose status is to be determined shall be advised of their rights at the beginning of their hearings. (5) Persons whose status is to be determined shall be allowed to attend all open sessions and will be provided with an interpreter if necessary. (6) Persons whose status is to be determined shall be allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal. Witnesses shall not be considered reasonably available if, as determined by their commanders, their presence at a hearing would affect combat or support operations. In these cases, written statements, preferably sworn, may be submitted and considered as evidence. (7) Persons whose status is to be determined have a right to testify or otherwise address the Tribunal. (8) Persons whose status is to be determined may not be compelled to testify before the Tribunal. (9) Following the hearing of testimony and the review of documents and other evidence, the Tribunal shall determine the status of the subject of the proceeding in closed session by majority vote. Preponderance of evidence shall be the standard used in reaching this determination. (10) A written report of the tribunal decision is completed in each case. Possible board determinations are: [list](a) EPW. (b) Recommended RP, entitled to EPW protections, who should be considered for certification as a medical, religious, or volunteer aid society RP. (c) Innocent civilian who should be immediately returned to his home or released. (d) Civilian Internee who for reasons of operational security, or probable cause incident to criminal investigation, should be detained.

[/list]
f. The recorder shall prepare the record of the Tribunal within three work days of the announcement of the tribunal's decision. The record will then be forwarded to the first Staff Judge Advocate in the internment facility's chain of command.

g. Persons who have been determined by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed. The record of every Tribunal proceeding resulting in a determination denying EPW status shall be reviewed for legal sufficiency when the record is received at the office of the Staff Judge Advocate for the convening authority.

Here is the Avalon projects collection on the "Laws of War". I can find nothing in that collection that requires a uniform to belong to an army.

http://www.yale.edu/lawweb/avalon/lawofwar/lawwar.htm

The expression "members of regular armed forces" denotes armed forces which differ from those referred to in sub-paragraph (1) of this paragraph in one respect only: the authority to which they profess allegiance is not recognized by the adversary as a Party to the [p.63] conflict. These "regular armed forces" have all the material characteristics and all the attributes of armed forces in the sense of sub-paragraph (1): THEY WEAR UNIFORM, they have an organized hierarchy and THEY KNOW AND RESPECT THE laws and CUSTOMS OF WAR. The delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed forces the requirements stated in sub-paragraph (2) (a), (b), (c) and (d).

http://www.icrc.org/ihl.nsf/COM/375-590007

Here are the military regulations for such tribunals:

oralloy wrote:

Here are the military regulations for such tribunals:

No, there aren't These are military regulations for some kind of tribunal, but not Combatant status review tribunals. These are established under the military commission act, and military regulations do not specify their operations.

The Combatant Status Review Tribunals have been going on for years before the Military Commissions Act came into being. They can't have been established by it.

The requirements specified in Article 4, paragraphs A (2) (a) to (d), GPW (par. 61) are satisfied in the following fashion: ...

b. Fixed Distinctive Sign. The second condition, relative to the possession of a fixed distinctive sign recognizable at a distance is satisfied by the wearing of military uniform, but less than the complete uniform will suffice. A helmet or headdress which would make the silhouette of the individual readily distinguishable from that of an ordinary civilian would satisfy this requirement. It is also desirable that the individual member of the militia or volunteer corps wear a badge or brassard permanently affixed to his clothing. It is not necessary to inform the enemy of the distinctive sign, although it may be desirable to do so in order to avoid misunderstanding.

There was an interesting piece on Public Television last night. It was color film shot during WW2, specifically from France. I guess it must have been showing a lot of French war criminals since they were carrying arms but not wearing uniforms. They were wearing civilian clothes with armbands to designate their membership in the FFI. They must have all been war criminals under your argument Oralloy.

The Taliban were issued and wore black headresses.

parados wrote:

There was an interesting piece on Public Television last night. It was color film shot during WW2, specifically from France. I guess it must have been showing a lot of French war criminals since they were carrying arms but not wearing uniforms. They were wearing civilian clothes with armbands to designate their membership in the FFI. They must have all been war criminals under your argument Oralloy.

Nope. The armbands satisfied the requirement for proper attire.

parados wrote:

The Taliban were issued and wore black headresses.

I've seen this claimed before, although this is the first I've seen it claimed on A2K.

All the earlier times I saw the claim, I asked some questions to try to see if this headgear would satisfy the requirements for a proper uniform.

Each time, all my questions were dodged, and the reply was little more than an emotional outburst.

Because of this I've never given much credence to the black headband claim.

However, if the Combatant Status Review Tribunal (or some other tribunal) starts trying to separate lawful from unlawful combatants, the lawyers for the people in front of the tribunal will be free to make a case that these black headbands satisfy the requirement for proper attire.

Setanta wrote:

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

That is not correct. There most certainly is such a requirement.

The requirement was loosened (only in limited circumstances) by Protocol I. However protocol I doesn't apply, and even if it did, the situation wouldn't fit the limited circumstances.

Setanta wrote:

The Convention never mentions "customary requirements."

True that it doesn't mention them for the armed forces of a party to the conflict. However that does not mean the requirements do not exist.

Setanta wrote:

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.

The Combatant Status Review Tribunal has thus far not tried to separate lawful combatant from unlawful combatant.

I expect they may start doing so very soon however.

Setanta wrote:

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.

I'd say "who" would be all the combatants who were fighting without a proper uniform.

Setanta wrote:

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.

It makes him a soldier for now. I wouldn't place great odds on him retaining that status for very long.

oralloy wrote:

parados wrote:

There was an interesting piece on Public Television last night. It was color film shot during WW2, specifically from France. I guess it must have been showing a lot of French war criminals since they were carrying arms but not wearing uniforms. They were wearing civilian clothes with armbands to designate their membership in the FFI. They must have all been war criminals under your argument Oralloy.

Nope. The armbands satisfied the requirement for proper attire.

The last time I checked arm bands are NOT the same thing as a uniform.

What evidence do you have that they did NOT have anything distinctive?

But this all goes back to your claim that without a uniform they violated the GC.

No such fact exists in the GC or in the US army literature or in any treaties or other rulings I can find on laws of war.

You have still not provided one solid piece of evidence to back up your claim.

The expression "members of regular armed forces" denotes armed forces which differ from those referred to in sub-paragraph (1) of this paragraph in one respect only: the authority to which they profess allegiance is not recognized by the adversary as a Party to the [p.63] conflict. These "regular armed forces" have all the material characteristics and all the attributes of armed forces in the sense of sub-paragraph (1): THEY WEAR UNIFORM, they have an organized hierarchy and THEY KNOW AND RESPECT THE laws and CUSTOMS OF WAR. The delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed forces the requirements stated in sub-paragraph (2) (a), (b), (c) and (d).

http://www.icrc.org/ihl.nsf/COM/375-590007

oralloy wrote:

Setanta wrote:

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

That is not correct. There most certainly is such a requirement.

The requirement was loosened (only in limited circumstances) by Protocol I. However protocol I doesn't apply, and even if it did, the situation wouldn't fit the limited circumstances.

You have provided no evidence for your claim, and i frankly don't expect that you will. I have provided the evidence (in the article with which i began the thread) that Khadr was proclaimed an enemy combatant, and i've provided the evidence, by quoting the Convention, which i also linked, to show that it is not necessary for a combatant to wear a uniform.

This is clearly a case of put up or shut up, but so far, you have neither put up (any evidence for your claim), nor have you shut with regard to your continual and unsubstantiated claim that an enemy combatant must wear a uniform.

The expression "members of regular armed forces" denotes armed forces which differ from those referred to in sub-paragraph (1) of this paragraph in one respect only: the authority to which they profess allegiance is not recognized by the adversary as a Party to the [p.63] conflict. These "regular armed forces" have all the material characteristics and all the attributes of armed forces in the sense of sub-paragraph (1): THEY WEAR UNIFORM, they have an organized hierarchy and THEY KNOW AND RESPECT THE laws and CUSTOMS OF WAR. The delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed forces the requirements stated in sub-paragraph (2) (a), (b), (c) and (d).

http://www.icrc.org/ihl.nsf/COM/375-590007

' Governmental armed forces '

1703 However,

"Regulars who are assigned to tasks where they must wear civilian clothes, as may be the case, for example, with advisers assigned to certain resistance units, are not required to wear the uniform when on such assignments". (51)

This means that the possibility for a combatant to distinguish himself from the civilian population solely by carrying arms openly, also exists for members of the regular armed forces, though only under the same exceptional circumstances as for members of so-called guerrilla forces. (52)

Paragraph 7 -- Confirmation of the practice concerning the wearing of a uniform by regular troops

1723 The general character of the heading of the Section "Combatant and prisonerof-war status" and the wording of the article itself, which refrains from referring explicitly to national liberation movements and to resistance movements, led to some concern amongst some delegations. They felt that this might lead to the interpretation that the generally accepted practice of States concerning the wearing of a uniform by combatants belonging to regular armies might be put into question. This was not the intention of the Conference, as is clearly indicated in this paragraph. Thus nothing has changed on this point regarding the recognized practice of States: a combatant of the regular army who engages in hostile acts in civilian clothing, without being able to rely on the conditions described in the second sentence of paragraph 3, is open to the accusation of perfidy (' Article 37 -- Prohibition of perfidy, ' paragraph 1(c)). (90) This does not mean that a combatant of a regular army can never dispense with wearing a uniform while he is engaged in hostile acts. However, this possibility is open to him, as we have seen above, (91) only in the same situations and under the same exceptional conditions as those which apply to members of guerrilla forces. Although not explicitly stated, this article is primarily aimed at guerrilla fighters.