UNLAWFUL COMBATANT

Setanta wrote:

oralloy wrote:
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.

I wonder then, how it was that the military judge dismissed Khadr's case based on the determination that he was an enemy combatant.

The judge needed Khadr to have been classified as an unlawful combatant in order for the case to be heard in his court. Since no one had determined whether Khadr was a lawful or unlawful combatant, there was no choice other than to dismiss the charges.

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oralloy wrote:

The judge needed Khadr to have been classified as an unlawful combatant in order for the case to be heard in his court. Since no one had determined whether Khadr was a lawful or unlawful combatant, there was no choice other than to dismiss the charges.

This is a false statement on your part. In the article with which i prefaced this thread:

Quote:

Army Colonel Peter Brownback, the tribunal judge, said a military review board had labelled Mr Khadr an "enemy combatant" during a 2004 hearing in Guantánamo.

I'll take the word of the Guardian over yours, unless an until you can provide reliable evidence to the contrary, with a link to your source (which is what i have consistently done).

You state that "It is quite clear that the commentators [i.e., members of the ICRC, the International Committee of the Red Cross] were well aware both of the fact that armed forces are required to follow the customary rules of combat, and that those customary rules include wearing a proper uniform." Do you now assert that statements by the ICRC are binding on the United States, and that they overrule the text of the Convention, as read in context?

You are also claiming that Protocol I does not apply to this conflict (which is correct), but you then claim that it is more evidence that customary law requires the wearing of uniforms by armed forces. You have never answered the question of how it is that the United States were bound by what you are pleased to call "customary law," or to explain how that could supersedes the terms of the Convention to which we are signatories.

Howerver, in your post #2698246:

oralloy wrote:

parados wrote:
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.

Yes, but there are requirements for soldiers besides what is in the Geneva Conventions.

The requirement to have a proper uniform is a longstanding requirement of the customs of warfare.

Protocol I of the Geneva Conventions did relax the uniform requirements in certain situations (which I doubt would apply). However, neither Afghanistan nor the US are a party to Protocol I.

So it appears that when you want to state that Protocol I relaxed uniform requirements, you are quick to point to point out that we are not signatories--and yet, now, although acknowledging that Protocol I does not apply to Afghanistan, you want to claim it has relevance in that it provides evidence for the requirement to wear a uniform, being evidence of "customary law." (Can we have an unassailable definition of that term, and reliable evidence that it applies in this situation?) You can't have it both ways, either it applies (which it doesn't because we are not signatories), or it doesn't, in which case it is not relevant.

Finally, you reject the sixth category of combatant based on your personal description of those to whom it applies in Afghanistan. On what authority? Simply the authority of "I said it, therefore it is true?" Are you speaking ex cathedra on this topic? You will, i think, hardly be surprised that i don't take your word as conclusive on this basis.

So far, all that i know from reliable sources is that in the case of Khadr (which is the case which you insist on harping upon), he threw a grenade when GIs approached the house in which he was located, and after it had been shelled. You can only claim that he was not someone taking up arms upon the approach of the enemy if you can show that he fought as a member of organized forces before that incident. Someone else has suggested that there is a video tape of him planting mines. I asked for evidence that this were true, but received none.

What, other than your personal and biased judgment, is your basis for claiming that Khadr does not fall under category six?

Far more interesting, though, than your opinions about Khadr would be to know upon what basis a military tribunal declared that he was an enemy combatant. Whatever you may allege here, it is obvious that a military tribunal did not agree with you.

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Setanta wrote:

oralloy wrote:
The judge needed Khadr to have been classified as an unlawful combatant in order for the case to be heard in his court. Since no one had determined whether Khadr was a lawful or unlawful combatant, there was no choice other than to dismiss the charges.

This is a false statement on your part. In the article with which i prefaced this thread:

Quote:
Army Colonel Peter Brownback, the tribunal judge, said a military review board had labelled Mr Khadr an "enemy combatant" during a 2004 hearing in Guantánamo.

I'll take the word of the Guardian over yours, unless an until you can provide reliable evidence to the contrary, with a link to your source (which is what i have consistently done).

There is no contradiction between my statement and your quote. That you think there is a contradiction indicates some misunderstanding somewhere.

Let me try explaining it this way. People captured on a battlefield can be divided into "enemy combatants" and "noncombatants".

People who get classified as "enemy combatants" can be further classified as "lawful enemy combatants" or "unlawful enemy combatants".

The Combatant Status Review Tribunal has thus far only classified people as either "enemy combatants" or "noncombatants".

They have not yet tried to take "enemy combatants" and separate them into "lawful enemy combatants" and "unlawful enemy combatants".

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".

Setanta wrote:

You state that "It is quite clear that the commentators [i.e., members of the ICRC, the International Committee of the Red Cross] were well aware both of the fact that armed forces are required to follow the customary rules of combat, and that those customary rules include wearing a proper uniform." Do you now assert that statements by the ICRC are binding on the United States, and that they overrule the text of the Convention, as read in context?

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.

Setanta wrote:

You are also claiming that Protocol I does not apply to this conflict (which is correct), but you then claim that it is more evidence that customary law requires the wearing of uniforms by armed forces. You have never answered the question of how it is that the United States were bound by what you are pleased to call "customary law," or to explain how that could supersedes the terms of the Convention to which we are signatories.

Customary law applies to everyone in the world. It is sort of an international equivalent of common law.

Customary law does not supercede the terms of any treaty (or other positive law), much the same way that common law does not supercede the act of a legilsature.

However, I see no place where the Geneva Conventions of 1949 conflict with customary law -- especially regarding requirements for uniforms.

Setanta wrote:

So it appears that when you want to state that Protocol I relaxed uniform requirements, you are quick to point to point out that we are not signatories--and yet, now, although acknowledging that Protocol I does not apply to Afghanistan, you want to claim it has relevance in that it provides evidence for the requirement to wear a uniform, being evidence of "customary law." (Can we have an unassailable definition of that term, and reliable evidence that it applies in this situation?)

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

Setanta wrote:

You can't have it both ways, either it applies (which it doesn't because we are not signatories), or it doesn't, in which case it is not relevant.

Customary law applies. Protocol I does not apply.

I cited Protocol I because the comentaries on it refer to the customary requirements for uniforms.

Setanta wrote:

Finally, you reject the sixth category of combatant based on your personal description of those to whom it applies in Afghanistan. On what authority? Simply the authority of "I said it, therefore it is true?" Are you speaking ex cathedra on this topic? You will, i think, hardly be surprised that i don't take your word as conclusive on this basis.

So far, all that i know from reliable sources is that in the case of Khadr (which is the case which you insist on harping upon), he threw a grenade when GIs approached the house in which he was located, and after it had been shelled. You can only claim that he was not someone taking up arms upon the approach of the enemy if you can show that he fought as a member of organized forces before that incident. Someone else has suggested that there is a video tape of him planting mines. I asked for evidence that this were true, but received none.

What, other than your personal and biased judgment, is your basis for claiming that Khadr does not fall under category six?

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.

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Quote:

Quote:
oralloy wrote:

Nope. The armbands satisfied the requirement for proper attire.

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

You are mistaken. The armbands satisfy the requirement for a proper uniform.

This is in direct conflict with what you were arguing earlier. The ONLY requirement for a "uniform" is some distinctive element which you denied to be the case earlier. A simple headress that is distinctive would meet the requirement of a "uniform" if you want to state that an arm band is a uniform.

Quote:

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

Just the fact that so far no one has made a convincing case that they did.

International law requires the opposite of your claim. The burden of proof is on proving on your side. No one has to prove they were following international law. Rather it has to be proven they weren't. You haven't been able to present anything but mumbo jumbo and emotional appeals.

Quote:

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

Not so much that they violated it. More that they fail to qualify for the part that covers POWs.

Your argument has been because they did NOT have a uniform. You now agree that a simple armband is sufficient as a uniform. The ONLY requirement is an insignia from a distance under international law or Customs of War. There is nothing else.

Quote:

parados wrote:
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.

Have you looked into customary law any?

I linked to the "customs of war" at Avalon project. Unless you have something else I think I have done MORE research than you have.

Quote:

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

That is incorrect. I provided a quote from the Red Cross commentaries on the Geneva Conventions -- in fact, from the part where they were talking about the rules for who qualifies for POW protection.

I even put part of the quote in all caps to draw attention to the part where they noted that armed forces were required to follow customary law.

Actually it says "Customs of War" which I had already linked to at Avalon which is entitled Laws and CUSTOMS of war. Nothing there about uniforms in the Hague convention on the "Customs of War."

Quote:

It was back on page 9, but I'll repeat it here:

Quote:
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

It is quite clear that the commentators were well aware both of the fact that armed forces are required to follow the customary rules of combat, and that those customary rules include wearing a proper uniform.

Except you completely IGNORED the first part where they state the only requirement is an insignia visible from a distance. The part you quoted states it was designed based on a specific circumstance, that of the Free French forces under DeGaulle (who I believe wore US uniforms.) The first part is taken directly from the Hague convention of 1899 on Customs of war. Belligerents only have to have a fixed insignia visible from a distance.

Quote:

I. ' Belligerents are persons belonging to organized military forces, whether the army or militias and volunteer corps, provided that such militias or volunteer corps fulfil the following conditions: ' [p.48]
(a) that of being commanded by a person responsible for his
subordinates (5);
(b) that of having a fixed distinctive sign recognizable at a
distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws
and customs of war.

The qualification of belligerent is subject to these four conditions being fulfilled.

The "laws and customs of war" are pretty well laid out in the 1899 Hague convention on the "laws and customs of war" Uniforms are not part of those customs. They deal mainly with the actions that are acceptable and not when conducting operations.

And you still have not dealt with the lack of requirement of a uniform under US military law when it comes to POWs that I quoted.

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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.

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Setanta wrote:

That may be true (although i'll believe the part about the video tape only when you provide a reliable source for it--my source has been the CBC dossier on the Khadr family).

That's probably why you don't know about the video-tape.

Setanta wrote:

Nevertheless, the Geneva Convention Relative to the Treatment of Prisoners of War calls for those whose status is in doubt to be determined by a competent tribunal. If one were to assert that he went before such a competent tribunal, then he is obviously not an unlawful combatant, because he was not so designated.

CBC's "In Depth" article on the Khadr family.

Personally, I think they should send him back to Canada. Is that what most Canadians want?

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Setanta wrote:

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.

According to this article (LINK) this is the judge's order regarding Khadr: http://www.nimj.com/documents/Khadr%20Order%20on%20Jurisdiction.pdf

And according to this article (LINK) this is the judge's order for the other dismissal: http://www.nimj.com/documents/Hamdan%20Order.pdf

Setanta wrote:

oralloy wrote:
The Red Cross commentary on the Geneva Conventions is the proper context of the conventions. I am not sure how the commentary 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 commentary 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, is see 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.

Human Rights Watch and Amnesty International both refer to it as the "authoritative" commentary in numerous documents:

http://www.google.com/search?num=100&q=site%3Ahrw.org+%22geneva+conventions%22+%22red+cross%22+%22authoritative+commentary%22

http://www.google.com/search?num=100&q=site%3Aamnesty.org+%22geneva+conventions%22+%22red+cross%22+%22authoritative+commentary%22

In a couple documents Human Rights Watch refers to the Red Cross as the "official custodian" of the Geneva Conventions:

http://www.google.com/search?num=100&q=+site%3Ahrw.org+%22geneva+conventions%22+%22red+cross%22+commentary+%22official+custodian%22

However, I am not citing the Red Cross commentaries for the purpose of interpreting the Geneva Conventions. I am citing them because they talk about the customary rule that armed forces need to wear uniforms. I figure they count as legal experts who would know what they were talking about, so showing them talking about a rule should count as evidence that there is such a rule.

Setanta wrote:

oralloy wrote:
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.

The Red Cross just completed a comprehensive study of the current state of customary law a couple years ago. They seem to be quite confident that it exists:

http://www.icrc.org/eng/customary-law

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Thomas wrote:

oralloy wrote:
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.

That's correct, and I should have said "specified" instead of "established". Nevertheless, the military regulations you cited do not regulate the operation of combatant status review tribunals s. They regulate some other kind of tribunal.

While I am not sure that these are the rules that govern the Combatant Status Review Tribunal, I am also unsure why you believe they are not the rules for the tribunal.

Is there something about the rules that precludes them from being associated from the CSRT?

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parados wrote:

Quote:
Quote:
oralloy wrote:

Nope. The armbands satisfied the requirement for proper attire.

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

You are mistaken. The armbands satisfy the requirement for a proper uniform.
This is in direct conflict with what you were arguing earlier. The ONLY requirement for a "uniform" is some distinctive element which you denied to be the case earlier.

Oh? Where am I supposed to have denied this?

parados wrote:

I linked to the "customs of war" at Avalon project. Unless you have something else I think I have done MORE research than you have.

I am not entirely sure why you are linking to a list of treaty law in order to discuss customary law. Do you not understand what customary law is?

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I find your responses ironic, and somewhat amusing. You harp on the authority of the ICRC commentaries, and the force of customary law, and yet when it is pointed out to you that the sixth category of section four of the relevant Convention does not require the persons taken to have been uniformed--you dismiss that with the comment Khadr doesn't qualify for that category. However, section five of the Convention states that if the matter is in question, that question shall be resolved by a competent tribunal. Apparently, you consider yourself a competent tribunal, and to declare that category six does not apply to Khadr.

Meanwhile, your argument about the ruling of the military judge with regard to his authority to try Khadr under the MCA accepts that Khadr is an enemy combatant, but quibbles between the terms "lawful" and "unlawful"--so i understand why you say the judge has said "it is not enough." Of course, the judge did not say it is not enough, and did not even say that that there were not enough evidence to make the determination, to contrary he says that it could be determined, but that his tribunal is not competent to do so under the terms of the MCA, and therefore he dismisses without prejudice.

But invoking ICRC commentaries and definitions of customary law does not aid your argument with regard to Khadr, and a distinction between lawful and unlawful combatant is not in the language of the convention--it is embodied in the MCA provisions. Therefore, your argument about whether or not Khadr were uniformed when taken is not relevant, because there is no conflict between the convention and Khadr's have been declared a lawful combatant. In fact, declaration removes the issue beyond the terms of the Convention, and places it in the terms of the MCA. So, while you might argue that his lack of a uniform at the time of capture would qualify him as an "unlawful" combatant, that would not be established by the ICRC commentaries, nor by appeals to customary law, unless and until a "competent tribunal" attempting to reconcile the requirements of the MCA were to cite those when determining whether Khadr were an "unlawful" combatant. If you are now asserting that he is, based on the commentaries and customary law, it would appear that you are saying these will definitive in a determination of Khadr's status as lawful or unlawful, which suggest you are now setting yourself up as able to predict the future deliberations of whatever body shall be the competent tribunal to make that determination.

These arguments may appeal to you, but you have no way to predict that they will appeal to such a body, that they will be conclusive to such a body.

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oralloy wrote:

parados wrote:
I linked to the "customs of war" at Avalon project. Unless you have something else I think I have done MORE research than you have.

I am not entirely sure why you are linking to a list of treaty law in order to discuss customary law. Do you not understand what customary law is?

The ICRC never mentions customary law in your first citation. It refers to "customs of war" which is PRECISELY the item I cited. If you wish to to use the ICRC then use the words they use. If you want to ignore what the ICRC said then why did you bring them up?

"The comprehensive study of the current state of customary law" says nothing about uniforms. Interesting since you keep saying that customary law requires uniforms. Don't you think a "comprehensive study of customary law" would have included something that you say exists?

The list of customary humanitarian laws very closely follows the list in the 1899 Hague convention "customs of war" that I already cited and you disputed as being not relevent.

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Setanta wrote:

I find your responses ironic, and somewhat amusing. You harp on the authority of the ICRC commentaries, and the force of customary law, and yet when it is pointed out to you that the sixth category of section four of the relevant Convention does not require the persons taken to have been uniformed--you dismiss that with the comment Khadr doesn't qualify for that category.

That isn't the case. I acknowledge that he *might* qualify for that category.

The people who I don't include in that category are long-time Taliban fighters who have had ample time to have a proper uniform.

Setanta wrote:

Meanwhile, your argument about the ruling of the military judge with regard to his authority to try Khadr under the MCA accepts that Khadr is an enemy combatant, but quibbles between the terms "lawful" and "unlawful"--so i understand why you say the judge has said "it is not enough." Of course, the judge did not say it is not enough, and did not even say that that there were not enough evidence to make the determination, to contrary he says that it could be determined, but that his tribunal is not competent to do so under the terms of the MCA, and therefore he dismisses without prejudice.

Note the judge's statement: "A military commission only has jurisdiction to try an unlawful enemy combatant."

That the judge talked about the need to make this determination as if it had not yet been made (as indeed it hasn't yet) sort of implies that the CSRT's earlier determination that Khadr was an "enemy combatant" was not enough.

I agree with the judge's statement that it can be determined. I predict there will soon be a new round of hearings before the Combatant Status Review Tribunal to separate "enemy combatants" into "lawful enemy combatants" and "unlawful enemy combatants".

If Khadr is deemed an unlawful enemy combatant, he'll be right back before the military tribunal.

If the CSRT finds he belongs under category 6, Khadr will remain a POW.

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parados wrote:

The ICRC never mentions customary law in your first citation. It refers to "customs of war" which is PRECISELY the item I cited. If you wish to to use the ICRC then use the words they use.

I do use the words they use.

Quote:

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

The only change I made was to make some words all caps to draw attention to them. The words themselves are all from the Red Cross.

Note the thing about wearing a uniform??

If the rule they are talking about is not part of customary law, where is the rule found?

parados wrote:

"The comprehensive study of the current state of customary law" says nothing about uniforms. Interesting since you keep saying that customary law requires uniforms. Don't you think a "comprehensive study of customary law" would have included something that you say exists?

A few posts back you weren't even aware what customary law is. Now you've read the entire study?

Maybe you should take a closer look at rule 106.....

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Quote:

Rule 106. Combatants must distinguish themselves from the civilian population
while they are engaged in an attack or in a military operation preparatory
to an attack. If they fail to do so, they do not have the right to prisoner-of-war
status. [IAC]

Quote:

"The comprehensive study of the current state of customary law" says nothing about uniforms.

It seems my statement is accurate concerning rule 106 as well as all the other rules. Distinguishing oneself from civilians doesn't require a "uniform". A simple headress will do under international law.

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From the conclusion of Military Uniforms and the Rule of War by the ICRC

http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5ZBE5X/$File/IRRC_853_Pfanner.pdf

Quote:

Conclusion
From its origins, the military uniform which came into general use with
the appearance of large national armies in the 17th century had the primary
function of identification. The belonging to a particular armed force distinguished
the soldiers from their enemies and the military uniform had and has
other welcomed functions such as promoting obedience, comradeship and a
display of strength. International humanitarian law introduced to this identification
element another dimension, namely the cardinal principle of distinction
between combatants and civilians. Combatants when engaged in
military operations have to distinguish themselves from the civilian population
to protect them from the effects of hostilities and to restrict warfare to
military objectives. The general use of military uniforms on the battlefield
doubtless helps to achieve this overall goal. There is however no general
obligation for soldiers to wear uniform. The fact that wearing of military uniforms
is potentially able to reduce the dangers for the civilian population
during war and even if the practice of wearing uniforms is expected and is
commonly followed, it is not a prerequisite for the definition of armed forces.States are under the obligation to implement the principle of distinction, but
the uniform is not the only and sufficient means to do so. Armies sometimes,
at least in exceptional circumstances and especially in covert operations, do
not always wear uniforms when engaged in military operations.
The wording, legal history and the teleological interpretation of the
Third Geneva Convention shows, furthermore, that members of regular
armed forces ?- as opposed to irregular armed forces ?- are combatants
owing to their affiliation with a party to an international armed conflict and
do not have to fulfil specific constitutive criteria ?- including a distinctive
sign and in particular the wearing of a military uniform ?- to qualify as prisoners
of war in case of capture. At the same time, it is a misinterpretation of
the Geneva Conventions to deny prisoner-of-war status to all captured combatants
belonging to the regular armed forces of a State on the sole basis that
they failed to wear a uniform. However, individual members of regular armed
forces can possibly violate the requirement of distinction from the civilian
population when not wearing a uniform ?- and especially in case of perfidy
?- and can forfeit their status as prisoners of war. For the sake of the protection
of the civilian population, the military uniform can and should play
an important part in meeting the requirement of distinction.

But then we wouldn't want to trust what the ICRC said.

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parados wrote:

Distinguishing oneself from civilians doesn't require a "uniform". A simple headress will do under international law.

The black headdress (if they did wear such) will satisfy the requirement for a uniform *IF* it actually distinguishes combatants from civilians.

If it does not serve to distinguish combatant from civilian, it will not satisfy the requirement.

As I said when you first raised the headdresses, I've seen the headdress claim raised a few times before (not on A2K though), and each time I asked a few questions about the headdresses to determine if they served to distinguish combatant from civilian. Each time I got a rather bizarre emotional response that did not attempt to address the questions I asked, so I've pretty much stopped taking the headdress claim seriously.

But I expect the government will now try to have the Combatant Status Review Tribunal separate lawful from unlawful combatants. (The courts aren't going to let their military tribunals go forward otherwise.) If any of the detainees wish to claim that they wore a black headdress which counts as proper combat attire, they'll be free to do so.

If the detainees do satisfy the CSRT that they were properly attired, they'll probably get to remain POWs. (I don't want to say they'll definitely get to remain POWs, because I don't know if the government will try to deny their POW status on some other basis besides the uniform issue.)

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parados wrote:

From the conclusion of Military Uniforms and the Rule of War by the ICRC

http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5ZBE5X/$File/IRRC_853_Pfanner.pdf

Quote:
Conclusion
From its origins, the military uniform which came into general use with
the appearance of large national armies in the 17th century had the primary
function of identification. The belonging to a particular armed force distinguished
the soldiers from their enemies and the military uniform had and has
other welcomed functions such as promoting obedience, comradeship and a
display of strength. International humanitarian law introduced to this identification
element another dimension, namely the cardinal principle of distinction
between combatants and civilians. Combatants when engaged in
military operations have to distinguish themselves from the civilian population
to protect them from the effects of hostilities and to restrict warfare to
military objectives. The general use of military uniforms on the battlefield
doubtless helps to achieve this overall goal. There is however no general
obligation for soldiers to wear uniform. The fact that wearing of military uniforms
is potentially able to reduce the dangers for the civilian population
during war and even if the practice of wearing uniforms is expected and is
commonly followed, it is not a prerequisite for the definition of armed forces.States are under the obligation to implement the principle of distinction, but
the uniform is not the only and sufficient means to do so. Armies sometimes,
at least in exceptional circumstances and especially in covert operations, do
not always wear uniforms when engaged in military operations.
The wording, legal history and the teleological interpretation of the
Third Geneva Convention shows, furthermore, that members of regular
armed forces ?- as opposed to irregular armed forces ?- are combatants
owing to their affiliation with a party to an international armed conflict and
do not have to fulfil specific constitutive criteria ?- including a distinctive
sign and in particular the wearing of a military uniform ?- to qualify as prisoners
of war in case of capture. At the same time, it is a misinterpretation of
the Geneva Conventions to deny prisoner-of-war status to all captured combatants
belonging to the regular armed forces of a State on the sole basis that
they failed to wear a uniform. However, individual members of regular armed
forces can possibly violate the requirement of distinction from the civilian
population when not wearing a uniform ?- and especially in case of perfidy
?- and can forfeit their status as prisoners of war. For the sake of the protection
of the civilian population, the military uniform can and should play
an important part in meeting the requirement of distinction.

But then we wouldn't want to trust what the ICRC said.

Interesting article. Note this part of the conclusion you quoted:

"However, individual members of regular armed forces can possibly violate the requirement of distinction from the civilian population when not wearing a uniform ?- and especially in case of perfidy ?- and can forfeit their status as prisoners of war."

Another interesting quote from the article:

"But State practice95 and jurisprudence96 indicate clearly that combatants who do not distinguish themselves from the civilian population while engaged in an attack or in a military operation prior to an attack shall forfeit their rights as prisoners of war. During the First and Second World Wars, armed persons who were captured not wearing uniforms, were often executed on the spot as they were not considered to be combatants, but outlaws.97"

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This court ruling might possibly have some repercussions on the military tribunals, or the detentions at Guantanamo, if it is upheld:

Article: http://jurist.law.pitt.edu/paperchase/2007/06/federal-appeals-court-orders-release-of.php

Ruling: http://pacer.ca4.uscourts.gov/opinion.pdf/067427.P.pdf

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That is interersting, in that it would obviate the question of lawful or unlawful combatant.

It does not, of course, address the matter of those taken in Afghanistan, or those taken elsewhere (the Bosnia six) and transported to Guantanamo.

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I'm wondering about the Bosnia six myself. That decision seems to be saying that either they are combatants and subject to military law or they are civilians subject to the law of the holding country. That would seem to indicate they are subject to our laws, however they are not now in our country and were not taken in our country, so jurisdiction is puzzling.

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UNLAWFUL COMBATANT

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