The Law of Land Warfare
This is a post I have been thinking about ever since I started this blog. It comes up in my mind each and every time I hear people talking about how we should grant the Al Queda detainees in Guantanamo their Geneva Convention rights. This came to mind again today as I was listening to people talk on the radio about Zacarias Moussaoui being sentenced to life in prison instead of death.
(As an aside, I am pleased as punch that he got life in prison. As I said in an earlier post he wants to be a martyr and I am glad the jury didn’t grant him his wish. Let him die a lonely miserable old man many years from now.)
Now, back to Al Queda, some Iraqi insurgents, and the Geneva Convention. I have here sitting in front of me Dept. of the Army Field Manual 27-10: The Law of Land Warfare. i.e. The Geneva Conventions plus some commentaries and additions made by the US congress and such.
One of the things that people don’t seem to realize is that Al Queda fighters are not entitled to Geneva protection. Chapter 3, Section II paragraph 61 defines who is a Prisoner of War, they are “members of the armed forces”, members of “militias or volunteer corps … provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following requirements:
It can clearly be seen from that definition that Al Queda does not qualify as a P.O.W., nor do most of the Iraqi insurgents or the current Taliban insurgents in Afghanistan. So, if they are not entitled to P.O.W. status what do the Geneva Accords say can be done to them when captured? There are two paragraphs that deal with this, 80 and 81 which deal with “Individuals Not of the Armed Forces Who Engage in Hostilities.” And “Individuals Not of the Armed Forces Who Commit Hostile Acts.” Both of which say that said individuals “…may be tried and sentenced to execution or imprisonment.” Who tries them? Well precedent from WWII points to near summary Courts Martial with sentence being carried out immediately. In fact, trials were often not held at all and executions were carried out by previous orders. The book The Interrogator by Raymond Tolliver recounts the story of Hans Scharff, one of Germany’s top interrogators (whose techniques were adopted almost exactly by the U.S. Army Interrogation School) recounts Scharff’s tale of his surrender to US Forces at the end of the war. He was traveling with three other soldiers and they approached a village occupied by Patton’s troops. Scharff decides to change into his civilian clothes and go back to a nearby village where he had relatives. He was captured shortly after leaving his friends. He is standing there with some other German soldiers who have been captured and overhears his guards talking, the squad leader tells the others to “Check them over closely. The ones in uniform are no trouble but that guy in civvies has a military passport so he may be a spy. If so we have orders to execute him.” Upon hearing this Scharff took off running and escaped. He changed back into his uniform, rejoined his friends and surrendered. But this and numerous other accounts from the war make it clear that the summary, or nearly so, execution of people not fitting the Geneva definitions of prisoners was relatively common. So really, most of the detainees at Guantanamo could have been executed instead of being detained. And these executions could have been carried out not after a fancy trial like Moussaoui got but after a quick trial before a Court Martial in the field.
Just something to think about.
As a follow on though I feel obligated to mention that all Taliban prisoner captured during the initial invasion of Afghanistan and the immediately following time period are (or should have been) covered by Geneva Protocols as they were members of the military of the de facto government of the country. Or were actual Government officials.
(As an aside, I am pleased as punch that he got life in prison. As I said in an earlier post he wants to be a martyr and I am glad the jury didn’t grant him his wish. Let him die a lonely miserable old man many years from now.)
Now, back to Al Queda, some Iraqi insurgents, and the Geneva Convention. I have here sitting in front of me Dept. of the Army Field Manual 27-10: The Law of Land Warfare. i.e. The Geneva Conventions plus some commentaries and additions made by the US congress and such.
One of the things that people don’t seem to realize is that Al Queda fighters are not entitled to Geneva protection. Chapter 3, Section II paragraph 61 defines who is a Prisoner of War, they are “members of the armed forces”, members of “militias or volunteer corps … provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following requirements:
- a. that of being commanded a person responsible for his subordinates;
- 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.”
It can clearly be seen from that definition that Al Queda does not qualify as a P.O.W., nor do most of the Iraqi insurgents or the current Taliban insurgents in Afghanistan. So, if they are not entitled to P.O.W. status what do the Geneva Accords say can be done to them when captured? There are two paragraphs that deal with this, 80 and 81 which deal with “Individuals Not of the Armed Forces Who Engage in Hostilities.” And “Individuals Not of the Armed Forces Who Commit Hostile Acts.” Both of which say that said individuals “…may be tried and sentenced to execution or imprisonment.” Who tries them? Well precedent from WWII points to near summary Courts Martial with sentence being carried out immediately. In fact, trials were often not held at all and executions were carried out by previous orders. The book The Interrogator by Raymond Tolliver recounts the story of Hans Scharff, one of Germany’s top interrogators (whose techniques were adopted almost exactly by the U.S. Army Interrogation School) recounts Scharff’s tale of his surrender to US Forces at the end of the war. He was traveling with three other soldiers and they approached a village occupied by Patton’s troops. Scharff decides to change into his civilian clothes and go back to a nearby village where he had relatives. He was captured shortly after leaving his friends. He is standing there with some other German soldiers who have been captured and overhears his guards talking, the squad leader tells the others to “Check them over closely. The ones in uniform are no trouble but that guy in civvies has a military passport so he may be a spy. If so we have orders to execute him.” Upon hearing this Scharff took off running and escaped. He changed back into his uniform, rejoined his friends and surrendered. But this and numerous other accounts from the war make it clear that the summary, or nearly so, execution of people not fitting the Geneva definitions of prisoners was relatively common. So really, most of the detainees at Guantanamo could have been executed instead of being detained. And these executions could have been carried out not after a fancy trial like Moussaoui got but after a quick trial before a Court Martial in the field.
Just something to think about.
As a follow on though I feel obligated to mention that all Taliban prisoner captured during the initial invasion of Afghanistan and the immediately following time period are (or should have been) covered by Geneva Protocols as they were members of the military of the de facto government of the country. Or were actual Government officials.
posted by exMI | 09:19
1 Comments:
Good points.
One problem though is that while we have troops active in the field, we're not actually at war. So past behaviour in a time of war doesn't necessarily apply...but it does at least give some guidance.
Another problem is that, as you mentioned, some of the people held at Gitmo and other facilities do fall under the Geneva Conventions.
And where do the people snatched off the streets far from any battlefield, like say Italy, fall?
What's not really talked about much is the people that have been released. They've just been quietly sent back home without so much as a 'sorry mate.' That actually bothers me more than any of the accusations of abuse.
Thanks for a good think again...
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