Single point clarification for Igel
My bad for using the word "independent", instead of "separate"; which caused this valid comment:
Quote:
from Igel
What do you mean with "independent German military law and Laws of War"? There exist various laws which regulate the military and give guidelines how a war has to be fought. Do you mean something different from that?
What I was looking for is whether there is a separate body of German military law, including the laws of wars, which has been adopted as positive law. For example, the US started with the Lieber Code of 1863 (Gen Order 100 and Wiki), written by a German immigrant to the US who was then the leading international and military law expert in our country. He based his code (most of which still holds up) on what he perceived as the best legal rules - in a real sense, he codified the "common laws of war" that he thought best protected combatants and non-combatants.
US military law has since incorporated the Hague and 1949 Geneva Conventions (as well as other conventions), has adopted as positiive law the UCMJ (Uniform Code of Military Justice) and a host of regulations and rules. Various other positive law affect US military law: e.g., War Crimes Act, Anti-Torture Act, Detainee Treatment Act and Military Commissions Act.
While these generally are subject to the US Bill of Rights (first 10 amendments to the Constitution), there are some exceptions - not because the statutes override the Bill of Rights, but because the Bill of Rights have some limitations (and some expansions) beyond their express language. That is because of 200+ years of judicial interpretation for better or for worse.
Now, in considering your post about the Basic Law and the articles quoted, the Basic Law does seem to require procedures which are not practical on the battlefield, as you point out. So, how (if at all) do German forces get around this ?
Simple precision for Igel
Igel,
My comment on the previous post is not an attack against Germany and for those it may have hurt, I am very sorry.
I took the example of the law on negationism as both Germany and France have similar law (in the spirit) on that issue. As for racism. Liberty of speech is limited by the fact that what you say is either a false historical truth or an appeal to comitte a crime or the denial of the equality of every human being (art1 Universal Man Rights in the spirit).
In US, if I have well understood the constitution article on free speech, it is not the case. (may be for an appeal to blood crimes?).
There, we have two different view of the legislator on the interpretation of the liberty of speech. In the US, someone correct me if I am wrong, the law cannot legiferate such things as the constitution guaranty to everybody the right to express his self.
In Europe, we may give a larger power to the law to interfere with some fundemental rights. The French Universal Declaration of Man Right give the freedom of opinion, conscience and religion (you have the right to believe what you want and to think want you want) and press. But it also gives restriction to your liberty: to no harm another human being.
Your liberty stops were the liberty of another starts. You do not have laws that restricts your rights. Those rights are Natural in a philosophical approach, close to Locke state of Nature. This gives room to an argue on is the Man Right declaration a copy and translation of Habeas Corpus or not.
Concerning the legal capacity of the army to plan its activities: you have the military laws, like in US. Those laws apply to the soldiers when on duty but does not replace the civil law.
But layers are not sitting in command room. (heureusement...).
French and US military laws are on the same subjects: detention, torture, military justice...
JMM, I Have a question:
I will take the case of a robbery in Ivory Coast. Some Legionaires broke into the Central Bank and stole several millions. This forced several governments to change their currency in use (the Franc CFA). After that, to stop the rogue soldiers, all the notes in Franc CFA were reprinted.
In French Law, the robbers would be (and have been) prosecuted by a civil tribunal under civil law. They would (have) definitively faced administrative sanctions from the army, but the prison that would follow would be (has been) given by a civilian tribunal.
What about US? (Knowing the guys were on duty in a war zone).
treaties signed by Afghanistan
Ratifications / Accessions
Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva, 6 July 1906.
[Introduction][Full Text][Articles]
Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925.
[Introduction][Full Text][Articles]
Procès-verbal relating to the Rules of Submarine Warfare set forth in Part IV of the Treaty of London of 22 April 1930. London, 6 November 1936.
[Introduction][Full Text][Articles]
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948.
[Introduction][Full Text][Articles]
Geneva Conventions of 12 August 1949.
[Introduction][Full Text][Articles][Commentaries]
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968.
[Introduction][Full Text][Articles]
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction. Opened for Signature at London, Moscow and Washington. 10 April 1972.
[Introduction][Full Text][Articles]
Convention on the prohibition of military or any hostile use of environmental modification techniques, 10 December 1976.
[Introduction][Full Text][Articles]
Convention on the Rights of the Child, 20 November 1989.
[Introduction][Full Text][Articles]
Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction, Paris 13 January 1993
[Introduction][Full Text][Articles]
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997
[Introduction][Full Text][Articles]
Rome Statute of the International Criminal Court, 17 July 1998
[Introduction][Full Text][Articles]
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 25 May 2000
[Introduction][Full Text][Articles]
Signatures
Final Act of the Diplomatic Conference of Geneva, 12 August 1949.
[Introduction][Full Text][Articles]
Final Act of the Diplomatic Conference of Geneva of 1974-1977.
[Introduction][Full Text][Articles]
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. Geneva, 10 October 1980.
[Introduction][Full Text][Articles]
Convention on Cluster Munitions, 30 May 2008
[Introduction][Full Text][Articles]
Different ways of drafting constitutions
There are different approaches to drafting a constitution. I'm not talking about whether the document is simple (setting out general principles), or complex (setting out specific, detailed mandates), or a combination of those approaches. In that respect, the US Constitution tends toward general principles, with specific, detailed mandates to be implemented by statutes, regulations and rules.
More important to basic understanding is the constitutional source of the political power expressed in the constitution. So, let us look at the following:
Constitution of the United States of America
Quote:
Preamble
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Basic Law for the Federal Republic of Germany
Quote:
Preamble
Conscious of their responsibility before God and man, Inspired by the determination to promote world peace as an equal partner in a united Europe, the German people, in the exercise of their constituent power, have adopted this Basic Law.
France - Constitution of October 4, 1958
Quote:
PREAMBLE
The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004.
....
Title I
ON SOVEREIGNTY
Article 2.
.....
The principle of the Republic shall be: government of the people, by the people and for the people.
Article 3.
National sovereignty shall vest in the people, who shall exercise it through their representatives and by means of referendum.
So, all three, US, Germany and France, are built on people power. The source of political power are the people of the nation, who are served by the government they establish. This concept does not seem revolutionary today, but it was in the late 1700s which still had vestiges of the divine right of kings, etc. The concept of people power (in the sense understood in the quotes above) is not the concept underlying Sharia law in its strict forms, which present a theonomy (divine law). It is well to keep this in mind.
We look at another document, which has a constitutional form (though not called that):
Charter of the United Nations
Quote:
PREAMBLE
WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
•to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
•to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
•to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
•to promote social progress and better standards of life in larger freedom,
AND FOR THESE ENDS
•to practice tolerance and live together in peace with one another as good neighbours, and
•to unite our strength to maintain international peace and security, and
•to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and
•to employ international machinery for the promotion of the economic and social advancement of all peoples,
HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS
Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.
Again, we see a reference to "people power" in a more complex environment; but the last paragraph teaches us some additional terms that must be understood in the context of international law. Those terms are:
1. Nations
2. Governments
3. Representatives of Governments, "who have exhibited their full powers found to be in good and due form."
A very important point to remember is that nations and governments are not the same thing; and that both nations and governments have, at sometime in their existence, to be recognized before they have capabilities in the international (between nations) community.
Nation
For a look at a nation's constitutional history (and different kinds of constitutions), see this post on Afghanistan. We can agree that at all times pertinent hereto Afghanistan was a nation, recognized as such by the international community. Its constitutions differ from the three non-Islamic constitutions quoted above.
Governments
For Astan's governments (1978 to date), see this post which includes some material on the Taliban and its view of Sharia law.
An important point about a nation, as opposed to a government, is that once a nation is recognized as a nation by the international community, that nation continues to exist as a nation (despite changes in governments or the lack of any government at all), unless it is annexed by another nation, partitions itself by agreement or by war, or cedes its international capabilities to another nation.
From the time the US first had diplomatic relations with Afghanistan up to the present, the US and the international community recognized Astan as a nation. That is simply a matter of normative international law and has nothing to do with any peculiarities of US domestic law or its Constitution.
Recognition of Governments
Recognition of a government and withdrawal of recognition from a government is a political decision based on the domestic law of the nation that recognizes or withdraws recognition. There are different standards and different methods for doing that in the international community.
The history of US recognition of various Astan governments can be found at the following posts:
US & Afghan Positions 1919-1992 - part 1
US & Afghan Positions 1919-1992 - part 2
US & Afghan Positions 1992-1996
Note US recognition of the Rabbani government continued into 1997.
The US withdrawal of recognition of the Rabbani government, and the US refusal to recognize the Taliban government, is a longer story:
US & Afghan Positions 1996-2001 - part 1
US & Afghan Positions 1996-2001 - part 2
US & Afghan Positions 1996-2001 - part 3
The US position was triggered by the physical turf war at the Astan embassy in DC, but other factors were also involved.
The US position on recognition of a government is established by decision of the executive branch (the President), and is binding on all three branches of the US government - which includes US military forces.
US Judicial Standard - Executive Branch Recognition
Why are US military forces the military forces of the US as a nation ? The reason is that that they are subject to the command and control of the recognized government of the US. If there were no government in the US, its armed forces (even if they still existed) would not be a national armed force.
We will deal later with the non-recognized status of the Taliban as Astan's government, and thus why its armed forces could not be considered the armed forces of a High Contracting Party to the GCs.
The International Community and the Taliban
The US position as to Astan's governments and recognition of them from the inception of the Rabbani government can be summed as follows:
1. Rabbani government - recognition ended 15 Aug 1997.
2. No government - 15 Aug 1997 up through 21 Dec 2001.
3. Interim Authority (and successors) - from 22 Dec 2001.
At no point was the Taliban recognized by the US Executive branch as either the government of Afghanistan or as a "new nation".
However, what if one argues that I don't care what your US rules are for diplomatic recognition. That would be bad international law (since recognition is a domestic political question). That argument would boil down to: the US must comply with the international norm, regardless of its own constitution and laws.
For purposes of discussion, what was the international norm as found by the UK Home Office Assessments. You will find those at:
UK Home Office Position - part 1
UK Home Office Position - part 2
Based on those sources, the international community lined up as follows.
The Taliban was recognized by Pakistan, Saudi Arabia and the United Arab Emirates as the government of Afghanistan in May 1997. However, the Rabbani government kept the UN seat (in a sense by default because the UN declined to rule on which government was entitled to the seat - a position similar to that of the US).
By September 27, 2001, Burhanuddin Rabbani led politically the anti-Taliban Northern Alliance in Afghanistan. Saudi Arabia and the United Arab Emirates decided to withdraw their diplomatic recognition. Pakistan alone recognised the Taliban government. President Rabbani’s government was strongly backed by Iran, Russia, Afghanistan’s Central Asian neighbours and India.
Thus, if the norm of the international community is taken into account(leaving out the no goverment position of the US), the Rabbani government was the recognized government of Astan. The Taliban had no claim to that legal status.
In truth, neither the Taliban nor the Northern Alliance were legitimate in humanitarian terms. Their human rights violations are recounted here:
Links to Astan HR Reports
UN Report cont. - Taliban massacres
Since the Taliban was not the recognized government of Astan according to both the US position and the international norm, the Taliban's armed forces could not be the armed forces of Astan (a High Contracting Party to the GCs).
Islamic War Law, the basic sources
As Mike pointed out, the presentation of Sharia and Islam is basically very much politically oriented.
In the case of the Taliban it is even more difficult as they probably use several “official” interpretation and several “local” interpretations.
The principle of fatwa gives an opportunity to many to comment and establish a rule or coutume that would apply locally. From village to village the interpretation of the same verse can change. Which does not help to understand and come with a critic of the Taleb rules and regulations.
Anyways, as a starting point, I propose here generally accepted references to Koran and to hadith on war by Islam. The idear is not to create a Law School of Islam but to come with the basic referral, as much as possible without interpretation. This to have a very raw base to start with.
Rules:
Historically, the Islamic ethical way to conduct war has been established by Abu Bakr:
Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.
Those rules are recognised as the very base of the Islamic ethic of war conduct.
Most of them are coming to the following Sourates and verses.
I purposely kept the first one despite its potential political interpretation to stay as neutral as possible. Avoiding it would also have been taking position.
"...We decreed upon the Children of Israel that whoever kills a soul - unless for a soul or for corruption [done] in the land - it is as if he had slain mankind entirely. And, whoever saves one, it is as if he had saved mankind entirely." [Qur'an, 5:32]
"...And do not kill the soul which Allah has forbidden except by right..." [Qur'an, 6:151]
"And do not kill the soul which Allah has forbidden except by right. And whoever is killed unjustly, We have given his heir authority but let him not exceed limits in [the matter of] taking life. Indeed, he has been supported [by the law]. " [Qur'an, 17:33].
"And [the believers are] those who do not invoke any deity with Allah, nor kill the soul which Allah has forbidden except by right, nor commit zina." [Qur'an, 25:68]
"And fight, in the path of Allah, those who fight you..." [Qur'an, 2:190]
"Among mankind is he whose speech impresses you in worldly life, and he calls Allah to witness as to what is in his heart, yet he is the fiercest of opponents. And, when he goes away, he strives throughout the land to cause corruption therein, and to destroy crops and lives. And Allah does not love corruption." [Qur'an, 2:204-5]
I would also recommend having a look to the following link: http://books.google.com/books?vid=IS...age&q=&f=false
Even if it does not apply to the actual exercise.
I also purposely did not integrated sunnah references as I did not have the quotes to give.