oralloy wrote:The judge who dismissed Khadr's case was saying that Khadr's classification as an "enemy combatant" was not enough. The tribunals are only for those who are designated as "unlawful enemy combatants".
Once again, you speak
ex cathedra, as though from authority. Without intending any insult, i have no reason to consider your statement to this effect as conclusive or authoritative. If you have a source for a statement by the military judge to the effect that the classification were not enough, i'd be willing to accept that. However, failing that, i see this as nothing more than an interpretation convenient to your argument, and your continued attempt to speak authoritatively, when in fact all any of us are doing is stating our opinions relative to the issue.
Quote:The Red Cross commentary on the Geneva Conventions is the proper context of the conventions. I am not sure how the comentary could possibly be in conflict with the conventions.
In as much as the United States is a party to the Geneva Conventions, they are binding on us. Since the Red Cross comentary is the proper interpretation, that interpretation is also binding on us.
Upon what authority do you assert that the ICRC commentary is "the proper context" and "
the proper interpretation," and therefore binding on us? Once again, issee this as nothing more than an opinion posed as an
ex cathedra statement, and the authority for which i know of no good reason to assume you possess.
Quote:Customary law applies to everyone in the world. It is sort of an international equivalent of common law.
I don't need to be addressed as though i were simple-minded. This is, as far as i can see, just a term which you conveniently use to underpin your argument. If there had ever actually been a true "customary law" with regard to warfare, then it is a problem to understand why the Hague Conventions or the Geneva Conventions were ever necessary. It seems obvious to me that they were promulgated precisely because there was not theretofore a consensus on the rules of warfare.
It is noteworthy that much of the common law as described by Blackstone and published on the eve of the American Revolution did not make its way into our Constitution, either literally or in the sense of it, and that in fact many early commentators of the republic found it to be at odds with our principles of governance and jurisprudence.
It is also ironic in that many conservatives (whom i consider it not unreasonable to consider to be usually of the same opinions as you have often expressed in these fora) are not only unmoved by appeals to international principles of law and jurisprudence, but oppose the International Criminal Court precisely because they don't consider the United States to be bound by any sense of international law.
I don't consider that your statement about customary law constitutes what i asked for, which is an "unassailable definition," but is rather, once again, just your opinion. I also don't see that you provide any evidence that it applies in this situation.
At Wikipedia, i find this definition (and acknowledge your reference to that source):
Quote:In international law, customary law refers to the Law of Nations or the legal norms that have developed through the customary exchanges between states over time, whether based on diplomacy or aggression. Essentially, legal obligations are believed to arise between states to carry out their affairs consistently with past accepted conduct. These customs can also change based on the acceptance or rejection by states of particular acts. Some principles of customary law have achieved the force of peremptory norms, which cannot be violated or altered except by a norm of comparable strength. These norms are said to gain their strength from universal acceptance, such as the prohibitions against genocide and slavery. Customary international law can be distinguished from treaty law, which consists of explicit agreements between nations to assume obligations. However, many treaties are attempts to codify pre-existing customary law.
I don't see that that implies that what you allege (without further substantiation than your opinion, and a reference to ICRC commentaries--which, as i haven't read them, i don't know to the ultimate and conclusive statement on this issue by the ICRC, and which i have already pointed out, i don't see as binding upon us, simply because you assert this is so) about customary law suffices to consider it binding,
above and beyond the language of the Convention taken in context.
Furthermore, Wikipedia has this to say:
Quote:Derived from the consistent practice of (originally) Western states accompanied by opinio juris (the conviction of States that the consistent practice is required by a legal obligation), customary international law is differentiated from acts of comity by the presence of opinio juris (although in some instances, acts of comity have developed into customary international law, i.e. diplomatic immunity). Treaties have gradually displaced much customary international law. This development is similar to the replacement of customary or common law by codified law in municipal legal settings, but customary international law continues to play a significant role in international law. (emphasis added)
I therefore see no reason to assume that there is a customary law which aborgates or extenuates any of the language of the convention.
Quote:However, I see no place where the Geneva Conventions of 1949 conflict with customary law -- especially regarding requirements for uniforms.
No, certainly not, given that the Convention Relative to the Treatment of Prisoners of War nowhere makes the wearing of a uniform a definitive requirement for the establishment of the status of an enemy combatant, q.v. the sixth paragraph in the definitions of prisoners of war.
Quote:Customary law applies. Protocol I does not apply.
I cited Protocol I because the comentaries on it refer to the customary requirements for uniforms.
Once again, you speak
ex cathedra. Once again, i know of no reason to take your statement as authoritative, nor of having any more weight and value than any other opinion offered here. I feel reasonable in stating that by now, you are aware that i don't share your opinions in this matter.
Quote:If it turns out that Khadr was not a member of the Taliban, then he may well turn out to fall under category 6.
However, the Taliban was an organized fighting force. The language of category 6 quite clearly refers to those who have not had time to organize into a coherent group.
My rejection of category 6 applies to members of the Taliban, not to Khadr specifically.
I appreciate that you make the distinction between Khadr's case and the overarching issue in discussion. At the risk of tediously repeating myself, i only mentioned Khadr because the dismissal of his case brings the larger issue into focus.
As for the issue of whether or not members of the Taliban would fail the test of "lawful" combatants if they were not uniformed, i rather suspect that the "relaxing" of standards to which you refer in the language of Protocol I was a pragmatic acknowledgement of something which might full under a definition of custom.
During our Revolution, many troops were not uniformed--either because they were militia members, or because they were members of the Continental Line for whom uniforms could not be provided. During the American Civil War, troops of the Confederate States were often not uniformed, because of a lack of resources available to their government. (In fact, on some occasions, Confederate States troops fired on their own comrades because those comrades wore pre-war uniforms, and on other occasions, and one notable one during the first battle of Manassas, Confederate States troops were able to approach Federal troops almost unmolested because they wore pre-war uniforms.) During the 1813 campaign which culminated at the "Battle of the Nations" near Leipsic, there were so many German volunteers willing to fight the French that few of them could be uniformed. During the Russo-Turkish War of 1853 (comonly referred to as the "Crimean War"), the Tsar's armies were expanded so rapidly (he also had to fight a serious rebellion in Chechnya and Ingusetia), that they concentrated on issuing gray overcoats, because they were unable to uniformly attire all of the new recruits. On occasions upon which the weather was warm enough to lead the Russians to doff their overcoats (such as the Battle of the Alma in the Crimean), the English and French noted that their opponents looked like a bunch of peasants on a work gang, save that they carried muskets. Trotsky's Red Army lacked the resources to uniformly attire all of their troops, and they often had recourse to using uniforms of the Tsarist army, which Trotsky eventual forbad, because Kolchak's White Russians were uniformly attired in Tsarist uniforms, leading Trotsky to decree that his men fight in "mufti" until such time as the Soviet state could issue them uniforms.
It has often been a problem to uniformly attire soldiers, and uniform attire only became common in Europe in the era of the War of the Spanish Succession, when aristocratic officers developed a mania for gaudy uniforms, but often found themselves obliged to provide the uniforms themselves, as their governments were either unable or unwilling to bear the cost. (Not that that presented a terrible burden to them, as they so frequently shamelessly diverted the payroll of their troops to their own purposes--a habit common enough that by the time of the French Revolution, several regiments mutinied on a charge of peculation against their officers.) The Dutch and English governments found themselves obliged to pay for uniforms for the German contingents among their coalition, because the petty princes who were selling the services of their troops were either unwilling or unable to bear the cost.
So, it is entirely possible that an excess of zeal to defy the invader lead many Afghans who had not previously had any affiliation with the Taliban regime to flock to the colors, as it were, leaving the government unable to provide them uniforms. On such a basis, although they might be "regular" troops, and not simply people covered by category six, they may well not have had the option of wearing a uniform. It is, of course, equally probable that they and their offices found it convenient not to have them in uniform, a tactic established as useful since the insurrections common across the globe in the aftermath of the Second World War.
Whether or not we can agree on these issues, i consider this a fascinating discussion.
