Talk:Unlawful combatant/Archive 3

Archive

 * Talk:Unlawful combatant/Archive 1
 * Talk:Unlawful combatant/Archive Illegal enemy combatant

See Archive 1 for the history of talk page before this time stamp Philip Baird Shearer 14:07, 9 Mar 2005 (UTC)

US Specific Section
Before the recent US court cases, the US supreme court had not visited this since before GCIII, it would seem to me that the most recent US supreme court cases rulings should be mentioned in passing along, with the original case and they all should all be moved down to near the end of the article into a US specific section.Philip Baird Shearer 14:39, 22 Oct 2004 (UTC)


 * The peculiar legal status of Guantanamo Bay is a factor in the use of Guantanamo as a detention center. Because sovereignty of Guantanamo Bay ultimately resides with Cuba, the U.S. government has argued (and one circuit court has agreed) that people detained at Guantanamo are legally outside of the U.S. and do not have the Constitutional rights that they would have if they were held on U.S. territory (see Cuban American Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995)).  However, in 2004, the Supreme Court rejected this argument in the case Rasul v. Bush with the majority decision and ruled that prisoners in Guantanamo have access to American courts, citing the fact that the U.S. has exclusive control over Guantanamo Bay.

This was taken from the GB page it holds the information with the stuff already on the page to update the US S.Court view of an unlawful combatant with consideration of the 1949 GC treaty obligations. Any one want to write a US specific section and place it just before the Criticism section? Philip Baird Shearer 04:54, 10 Nov 2004 (UTC)

Enemy combatant
The phrase repeatedly used by the Bush regime is "enemy combatant." I am confused as to why "unlawful combatant" has replaced it in this article. --Daniel C. Boyer 20:02, 30 Nov 2004 (UTC)

Yes, I think they're different. I've fixed the redirect with a stub at Enemy combatant. To me, an "unlawful combatant" would be a civilian who attacks military (rather than military vs. military). So in that case, civilians in Iraq would be "Unlawful Combatants" during the Iraq war and at the time Saddam Hussein was President. They would be Iraqi citizens fighting the invading US/UK army. Vietnamese citizens fighting the US army during the Vietnam war would also be "unlawful combatants" in that sense.

Currently, rebels in Fallujah are murderers, terrorists, seditious conspirators etc. according to whatever Iraqi law they are breaking. In that case it is civilian vs. civilian, as the US has succeeded in "regime change" and are now not fighting Iraq, nor occupying Iraq, but helping the Iraqi government (such as it is).

"Enemy combatants" as defined by the US, are not civilian vs. military, but civilian vs. civilian (incl. government). Of course, civilian vs. civilian (should) fall under the normal rule of law, but the US government seems to have an arbitrary method of determining who is an "Enemy combatant"--as far as I know, it is simply an executive order with no judicial oversight. I think that is the distinction, and I think it's a very important distinction.--Ben 10:50, 3 Jan 2005 (UTC)

Surely an enemy combatant is a combatant fighting for the other side in an armed conflict? So in the Falklands War enemy combatants were for the British members of the Argentinian armed forces. Unlawful combatants are not civilians. It includes people who have breached the laws of war: fighting under a flag of truce, or mercenaries, or a member of a militia fighting out of uniform, (unless the parties have signed Protocol I), or a person fighting without a command structure etc. Philip Baird Shearer 13:55, 9 Mar 2005 (UTC)

Merging Illegal enemy combatant into the section United States
See: Talk:Unlawful combatant/Archive Illegal enemy combatant

Merge done Philip Baird Shearer 13:10, 17 Mar 2005 (UTC)

I strongly disagree with the merge. You've done this because of a POV interpretation of the words "unlawful combatant" and it is inaccurate. "Unlawful combatant" is not a concept which you can throw things into. It is a legal definition. Trying to define it as a concept will get you into all sorts of trouble, and, unless you're a member of the Supreme Court, I don't see how you can think you can even begin to do so. It was fine the way it was, with no possibility for POV and inaccuracy. Now there's going to be more fights over the usage because you would like to impose your POV reading of "unlawful combatant" on other people. Leave it as a legal definition and there will be no problems. Try to combine them, and I guarantee you people will start fighting about it (as evidenced by my disagreement here, and other's questioning above and in the archive). --Ben 23:08, 17 Mar 2005 (UTC)


 * You state that "It [unlawful combatant] is a legal definition". Please show me an international treaty which uses the term. Philip Baird Shearer 23:21, 17 Mar 2005 (UTC)


 * Rewrite the introduction of it is incorrect then. "Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without meeting the requirements for a lawful belligerent according to the laws of war as specified in the Third Geneva Convention."--Ben 01:28, 18 Mar 2005 (UTC)


 * This article might give you an idea of why putting these two together is a bad idea until the legality is sorted out . In case you don't check it out, in it, the writer, a law professor at Columbia, writes regarding the question of what an unlawful combatant is, that "the short answer is that a prisoner of war is entitled to the protections set forth in the 1949 Geneva Convention. In contrast, an unlawful combatant is a fighter who does not play by the accepted rules of war, and therefore does not qualify for the Convention's protections."

The first paragraph is correct and it agrees with what the chap is saying. It is GCIII Article 4 which defines this. (and the next sections in Wikipedia article go into great detail about this).

In his article he is using a brief description, which does not explore all the possibilities. For example:
 * Did it? To begin, the Taliban has, or at least formerly had, a tighter command structure than al Qaeda, suggesting it might satisfy the first criterion of "being commanded by a person responsible for his subordinates." However, Taliban members did not appear to satisfy the second and third criteria, for they did not wear uniforms that bore a "fixed distinctive sign recognizable at a distance," nor did they invariably "carry arms openly."

By this argument the British army would have a problem: it has not used "fixed distinctive sign recognizable at a distance;" for more than a century (See khaki). Often many of its senior officers have not born arms. So by his description members of the British army do not qualify as POWs. This is silly because they are covered by GCIII.4.a "Members of the armed forces of a Party to the conflict" not GCIII.4.b "Members of other militias". He is defining Taliban forces as coming under GCIII.4.b but they may be designated under another definition in GCIII (not for us to judge but for"a competent tribunal" (GCIII Article 5 as mentioned in the Wikipedia article)).

However over all I would say that the reference which you have given and this Wikipedia article are in broad agreement. If you disagree lets get down to specific paragraphs. (You have still not provided an example of an international treaty which defines the term "unlawful combatant"). -- Philip Baird Shearer 11:51, 18 Mar 2005 (UTC)

They must be kept separate. The two of us are not going to find a resolution. When separate the argument will be separate. Your preference that they be together is causing conflict. My preference that they be separate reduces conflict, and you are free to edit that page as much as you wish. The only possible conflict would be "let's move the page". Now, you have introduce a myriad of conflicts such as the definition of "combatant," the definition of "unlawful," the relation between International law and domestic law, the legitimacy of the ""war" on terrorism" and the nature and perspectives of those involved, differences between legal and conceptual definition, article style and flow, arguments over POV regarding implied comparisons and perspectives of concepts, etc. etc. Your PREFERENCE CAUSES conflict. It does NOT help anything. SEPARATE ARTICLES REDUCES CONFLICT.

Furthermore, whenever you say "Show me an international treaty which..." makes me want to punch the screen. If you are too stupid to understand what the words "unlawful" mean, you are too stupid to edit this article. It is a legal definition the same way as "illegal driving" would be a legal definition--it would mean driving in a manner opposed to the written law. A little more complicated, is that "combatant" would combatting in a manner opposed to the written law. To combat one must have a conflict, and as such that conflict must ALSO be defined by law otherwise participants in ANY conflict in which combat occurs (like say, an illegal street fight) could be considered "unlawful combatants". Either you are trying to start a fight with me (probably) or you need to brush up on your parsing of simple phrases.

I can't write like someone in the Supreme Court, but if your whole argument is based on me not being able to argue my side because you keep missing my points and not be able to weave around all your red herrings and bullshit (like all that crap about the British, that crap about how the lawyer is "right," the point about the opening paragraph going straight over your head somehow, meaning you must have had to duck otherwise it should have hit you square in the face) then maybe you should consider the possibility that your argument to put them together is completely ridiculous, which is my position.--Ben 23:33, 19 Mar 2005 (UTC)


 * "Combatant" and "armed conflict" do not have to be defined because they are used in GCIII. The difference between international law as defined by US treaty obligations under GCIII and GCIV and US domestic law are being resolved in the US courts at the moment. I think that the definition given in the first paragraph of the article is a close to a definition of the term "unlawful combatant" as one can get, by defining it as combatant who is not a lawful combatant as defined by GCIII. If you think that the term has a legal meaning separate from just being a negation of lawful combatant under GCIII, then please explain to me, who has made this legal judgement and how is it reflected, not in US domestic law, but in international law and specifically in treaty obligations.


 * AAAAAAAAAAAAAAAAAAAAAAAAGH!!!! Of course it is correct! But where does US domestic law regarding what they call "enemy combatants" fall into this definition? Nowhere! The article is about the Geneva Conventions! You're trying to make it about "unlawful combatants" in general, while still relying on the Geneva Convention definition--which the US version obviously does not rely on. Furthermore, if it is still being resolved in the courts, what are you doing trying to shoe-horn them together?!--Ben 01:42, 20 Mar 2005 (UTC)


 * Which parts of the USA section do you object to? Which parts are factually incorrect and which parts do you think have unbalanced POV? I knocked most of it together from other related Wikipedia articles and reading some of the external articles mentioned at the bottom of the page, it is far from perfect, particularly as no one else has copy-edited it yet and I am sure that it can be improved upon with little effort. Philip Baird Shearer 00:56, 20 Mar 2005 (UTC)


 * Their inclusion here is factually incorrect / POV.--Ben 01:42, 20 Mar 2005 (UTC)

Ok maybe you are right. Let me think about this. The main problem I have with combining them is that "(illegal) enemy combatant" has no precedent as law (in the United States code, and separate from the Geneva Conventions, and as far as I know--since the US does not have rules of war which apply to all parties), and I feel putting it with this article the American "unlawful combatant" gains legitimacy that is unwarranted. If they were separate the executive order to detain citizens (including American citizens like Padilla--even though it specifically says only non-US citizens, but somehow they spirited him away anyway) would have to stand on its own, legally speaking. But when they are together, it is quite easy to mistake the soundness as well as the legal definition as comparable. As far as I know, the US does not have its own "rules of war" nor is it officially in a state of war, but in a state of military operation or something? "Unlawful" suggests a law is being broken, when that is not necessarily the case to be detained as an "unlawful combatant" according to US law (or executive order or something), and "combatant" suggests a "war" with "sides" which quite frankly is completely defined by the US government and does not necessarily have a basis in reality. What's the difference between an unlawful combatant and a terrorist? Is it simply that Bush has declared "war" on terrorism? Why not just declare "war" on murder? Then anyone who is suspected of murdering someone, or even suspected of planning to murder someone can be detained without trial as an "unlawful combatant". This is why I have problems with putting them together. Writing as if the labels are synonymous confuses the issue and gives legitimacy through implication. If, as it seems, "unlawful combatant" is the concept, then it must be made EXTREMELY clear by re-writing the introduction and NOT about the Geneva Convention definition. It must be made clear that the article is about the concept of arresting people considered combatants in a defined conflict, who are not engaging in the conflict according to a set of laws. Thus, in the United States Domestic Law section, it must be made clear that THERE IS NO SET OF LAWS governing engaging in conflict, and furthermore, that the conflict itself is NOT DEFINED. Therefore, calling people "unlawful combatants" is completely ridiculous, but if that's what someone wants to call them, and it appears that some people do, I guess that's how it has to be.--Ben 05:12, 20 Mar 2005 (UTC)


 * The United States judicial system recognizes the international meaning of phrases like (lawful) "combatant" and "armed conflict", see the quote in the article from ex parte Quirin (1942). That these phrases are recognized as the same as GCIII was confirmed in  Johnson v. Eisentrager (1950).


 * If one looks at international trials like the Nuremberg Trials, there is feed back with US domestic law. In cases like that of the Otto Skorzeny War crimes trial (http://www.ess.uwe.ac.uk/WCC/skorzeny.htm), there are a number of legal arguments on the wearing of enemy uniforms during World War II. One of these is the  American Soldiers' Handbook, which was quoted by Defense Counsel, and says: "The use of the enemy flag, insignia and uniform is permitted under some circumstances. They are not to be used during actual fighting, and if used in order to approach the enemy without drawing fire, should be thrown away or removed as soon as fighting begins". So not only is US domestic law influenced by US international treaty obligations (and international customs of war), US domestic law interpretatons of these obligations have been fed back into international the case law.


 * This article starts by giving the International definition of what an unlawful combatant is not (and that is a lawful combatant). Having done that it then looks at specific countries. To date of those civilized countries who might worry about keeping to its international obligations, to my knowledge, only the US has invoked the concept in recent years. (If there are others, they will be added). The British for example did something similar in the 1970s by using Internment in Northern Ireland, and are currently doing something similar to the US with some alleged Islamic extremists. But in both cases the British did not invoke the international laws of war through defining the detainees as combatants in a war and using a military code of justice to get around inconvenient constitutional bumps in the road. From the perspective of the government of a country, this is an advantage of not having a written constitution!


 * Until 9/11 there was no serious 'de facto' divergence between US domestic law and international law, but there was a divergence in 'de jure' because the US has signed and ratified several international treaties since Quirin,eg the Geneva Conventions in 1949 and since JvE, for example the Torture treaty, 1987. These cases have to be brought to the attention of the US Supreme Court to do this. This is what is happening.


 * The US executive branch of government could use the term "detainees" to describe the detainees, but for its own reasons it chooses to call them "illegal enemy combatants" -- An explanation of why the administration choose to do this would make an interesting additional paragraph. As this article makes clear this is only a phrase used by the executive, and it then goes into detail about the current US judicial rulings on whether this is a "legal term" which applies to some of all of the detainees. The BBC article http://news.bbc.co.uk/2/hi/americas/3867067.stm is interesting because it reports:
 * The Pentagon is responding to the Supreme Court ruling and is trying to pre-empt any criticism from a US court. It is setting up three-officer review panels to determine whether a prisoner is a combatant. This is supposed to happen under Article 5 of the Third Geneva Convention which states that if there is doubt as to whether someone was a combatant, a "competent tribunal" should determine his status.
 * Also now that the Supreme court has ruled that civil courts can oversee the process I think that Hamden v. Rumsfeld (summary), on November 8, 2004, is significant in bringing the process into line with the international laws of war. As the Wikipedia article makes clear this process it not yet finished.


 * This wikipedia article does make clear, (as do the U.S. domestic courts), that if there is any dispute about whether a detainee is an (illegal) combatant, then they must face "a competent tribunal" under GCIII Article 5. This could be added to the introduction but as it is mentioned several times in the article, I think it would add unnecessary clutter to the introduction. If you disagree with me then perhapse this sentence from the section Prisoners of war could be added to the introduction:
 * If there is any doubt about whether an alleged combatant is a "lawful combatant" then they must be held as a Prisoner of War until their status has been determined by "a competent tribunal" (GCIII Art. 5).
 * The section on the USA makes it as clear that the term "IEC" is used by the administration and is not a legal one. It also goes into detail about the ongoing legal challenges to the detainment of US citizens and aliens under the military order. I am not sure how that could be made any clearer but if you think it is opaque perhpase you can re-write it to clarify it Philip Baird Shearer 11:28, 20 Mar 2005 (UTC)

Changes to first section
From:
 * Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without meeting the requirements for a lawful belligerent according to the laws of war as specified in the Third Geneva Convention.

To:
 * Simply, a person called an unlawful combatant (also illegal combatant or unprivileged combatant) is someone who engages in combat and, in doing so, violates the law.

Before it specified that international law was being broken specifically the definition in GCIII. Which law does it refer to now?

From:
 * Countries that identify such unlawful combatants may not necessarily accord them the rights of prisoners of war described in the Third Geneva Convention, though they may retain rights under the Fourth Geneva Convention in that they must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".

To:
 * The context in which the combat takes place is usually a war and the laws violated are related to the manner of that combat; for example, laws of war. One who engages within the laws relating to the combat are called lawful combatants.

It is not "usually a war" in which combat takes place. It is very difficult to fight a war since the UN charter came into force. Armed forces are usually engaged in "armed conflict" which may or may not be a declared war.

It is not possible to divide international law and domestic law into two section. Domestic law has to be subservient to international law. When two parties are engaged in armed conflict, enemy combatants are not expected to obey the domestic laws of their opponent. They are expected to conform to the laws of war. --Philip Baird Shearer 11:06, 22 Mar 2005 (UTC)

I have put back the original paragraphs and have added this one to address the issues rasised in the previous talk section.


 * The United States administration uses the term illegal enemy combatant to describe people detained by the United States under some Presidential military orders. However as the United States' courts have not yet ruled that any of the detainees have faced a "competent [military] tribunal", this phrase is not a legal description of the detainees status.

--Philip Baird Shearer 18:12, 23 Mar 2005 (UTC)

Status of Comintern
Question: Can anyone define the status of Comintern non-governmental combatants in the Spanish Civil War of 1936? (prior to the 1949 Convention which is what this article covers). Thank you Nobs01 01:40, 7 Jun 2005 (UTC)

Is this of any help:Geneva Convention 1929? --Philip Baird Shearer 01:00, 8 Jun 2005 (UTC)
 * Thank you. I don't see Comintern listed as a member of the League of Nations. So evidently "volunteers" of the Spanish Civil War (International Brigades, Abraham Lincoln Brigade etc) were non-governmental, non-state sponsored terrorist groups and illegal combatants without belligerent rights according to this document and the decision of Non-intervention committees of 21 February 1937 regarding their status. League of Nations Non-intervention Committee ban on "volunteers" 21 February 1937Nobs01 01:46, 8 Jun 2005 (UTC)

In a war a combatant does not have to be citizen of the country fighting the war. Providing they were not mercenaries (which they were not because they were not fighting primarily for money) they should have been treated as other soldiers on capture. What makes you think thery were terrorists and illegal combatants? See Geneva Convention 1929 Annexed Regulations (my bolding):
 * ART. 1.The laws, -rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
 * To be commanded by a person responsible for his subordinates;
 * To have a fixed distinctive emblem recognizable at a distance;
 * To carry arms openly; and
 * To conduct their operations in accordance with the laws and customs of war.
 * In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

Also See ART. 3. ''The armed forces of the belligerent parties may consist of combatants and noncombatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war.'' That would seem to cover the International Brigades. Philip Baird Shearer 20:13, 8 Jun 2005 (UTC)
 * The question surrounders nuetrality and intervention; a "volunteer" from a neutral country could return to his "neutral" country which then put that country's status into question, i.e. it was harboring belligerents. Hence these "volunteers" could draw an entire nation into a conflict against that nations will. So the League Non-intervention Committee finally banned "volunteers", and many League members stripped them of citizenship so they became stateless. Nobs01 16:29, 9 Jun 2005 (UTC)


 * You have not explaind your assertion "were non-governmental, non-state sponsored terrorist groups and illegal combatants without belligerent rights". Where does this assertion come from? When a volunteer returned to a neutral country they are no longer a belligerents. Therefor the status of the neutral country was not brought into question. Which countries striped volunteers of citizneship? Britain and Ireland did not do so (infact I do not think that they can!), The USA was not a member and I do not think the USSR was, Was Germany and Italy? So which countries did strip volunteers of citizneship? Philip Baird Shearer 10:12, 9 Jun 2005 (UTC)

League of Nations Non-intervention Committee ban on "volunteers" 21 February 1937from the Columbia Historical Review has well researched information on the questions you just asked (USSR was a member of Non-intervention Committee). This article is about Dutch Comintern "volunteers" who returned to neutral Netherlands for R & R (Rest & Relaxation) then rejoined the fight. Also, France, which shares contiguous border with Spain, was the seat of Comintern efforts to recruit and coordinate volunteers. Portugal, likewise with common border, had the problem of volunteers seeking refuge and staging engagements across border (somewhat analagous to the Viet Cong using Cambodia in the 60's & 70's, or Palestinian terrorists crossing over into Isreal; the case of the Afghan Taliban is somewhat different, cause they can be seen as actively aiding unlawful combatants from thier supposed "neutral" territory). Britain, France and others stripped "volunteers" of citizenship, as the article cites and sources. There are interesting points to be considered here, International Brigades were infact incorporated into the Spanish Republican Army, yet the League sought to disallow the use of foreign volunteers. Franco's forces likewise got volunteers from Germany & Italy, and Franco's regime was not a League member, yet they were the ones requesting some protection for belligerent rights before they would agree to cooperating with League enforcement of the ban. Nobs01 16:29, 9 Jun 2005 (UTC)