The Rules - Engaging HVTs & OBL

[jmm99]

Leaving the Sidedish and Back to the Meat

1949 and 1977 GCs, etc., quoted below, etc. - at ICRC, The Geneva Conventions Index.

from LawVol
[1] Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense. [2] But what about so-called freedom fighters? By this I'm referring to the Geneva protocol (the first I think) that redefines combatant to remove the requirement of a uniform. I'm going off memory here, so I could have it a bit off. [3] Let's assume we're fighting Hamas (which would probably fall within this status) or even the Iraq Republican Guard circa 2003. Would Joe be a lawful target to them while he's chillin' in Bean Town?

Taking the three parts separately.

1. "illegal combatant"

[1] Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense.

Probably better than "illegal combatant" or "unlawful combatant" would be a division between "combatant with combatant immunity" and "combatant without combatant immunity". Of what "immunity" do we speak ? We speak of "immunity" from prosecution for a "civilian" crime or a "military" crime - homicide, maiming and kidnapping would be the generic equivalent of the acts granted "immunity" on the battlefield. The "immunity" is conditional and requires compliance with the "rules of warfare" on the part of the combatant and the group he fights for.

Me thinks that is a tempest in a teapot for folks engaged in irregular warfare as irregular combatants (who may or may not be "combatants with combatant immunity"). If they are facing death or indefinite detention simply because they are an irregular combatant (a Common Article 3 combatant), the prospect of being captured and tried before a civilian court or military commission is not likely to be a material consideration as they consider combat.

That seems to be the case with all TVNSA (Transnational Violent Non-State Actors) and DVNSA (Domestic Violent Non-State Actors) groups. None of them have (to my knowledge) availed themselves of the opportunity to avail themselves of protected status, by accepting and applying the Geneva Conventions, under the option of Common Article 2 (para 3) of the 1949 GCs (emphasis added):

Art. 2.

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

That option has been available to AQ, the various Taliban and all the other groups of consequence ("Powers") in an "armed conflict" involving one or more Contracting Parties to the Conventions.

Why have these VNSAs not availed themselves of Common Article 2 ? Because they want to have their cake and eat it - in short, to be transitory combatants who can turn their civilian status off (to become combatants when they "directly participate in hostilites") and then on again as they cease being "hostile" and return to hiding among the civilians.

2. But what about so-called freedom fighters?

Additional Protocal I (1977) - not accepted by US, but accepted by most ISAF partners - amends Common Article 2 drastically, by its Art. 1 (emphasis added):

Art 1. General principles and scope of application

1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances.

2. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

Please note the use of "self-determination" - a term with which I am very uncomfortable, unless it is defined in a mutually-agreed "working definition" with whomever is discussing the term.

The "transitory combatant" provisions are based on Art. 1(4) and on Art. 43 (emphasis added):

Art 43. Armed forces

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

and with more exemplification in Art. 44 and 45.

These provisions make the option of Common Article 2 (that available to all Powers in a conflict) mandatory - including "compliance with the rules of international law applicable in armed conflict", Art. 43(1).

Thus, along with the combatant immunity provided by Art. 43(2), goes a reciprocal obligation to apply the rules of armed conflict. Is there a guerrilla group (there must be at least one ) that applies the rules of armed conflict ? If not, then they should be prosecuted for "war crimes", shouldn't they ? Of course, to a dedicated fanatic, the threat of potential criminal prosecutions would seem to a "Big Deal ! FO" situation.

3. Would Joe be a lawful target to them while he's chillin' in Bean Town?

Joe is presumptively a civilian; and can be detained only for reasons of security by (say) an occupying power. He can be whacked only if he is in some way participating (let's leave aside the "directly" or not issue) in an armed conflict. The strength of legal argument for whacking him runs downhill from (1) he is "part of" an armed force; (2) he is part of an "affiliated group" to an armed force; OR (3) he is a "provider of material support" to such a force or forces.

Last point

from LawVol
A secondary consideration to consider: if we say a Talib conducting a mission in Boston has no lawful target due to his status, are we being consistent? Another words, we treat him as a criminal, but not when it comes to engaging him. Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? If a member of a state force commits war crimes, can't he still engage lawful targets later on? Am I making sense here or do I need to restate?

You probably need to restate. My Colonial Marine ancetors were "a-letter-rate"; I h a v e t o r e a d o n e l e t t e r a t a t i m e; some were illiterate cuz their mothers were'nt married (what a dumb joke); and none went to McGill Univ.

Beyond all that, you are mixing your Laws of War and Rule of Law. Here's my analysis:

The Talib is on a military mission wherein he is directly participating in hostilities (if he's not, this line of analysis does not apply) by killing Mark Martins as he emerges from the sacred entrance of Harvard Law. The Talib is a combatant under either the 1949 Geneva Conventions (Common Article 3) or under Additional Protocol I (Talib "self-determination" and all that ). If he wastes Martins in an approved "Hague-Geneva" manner, he has committed no "war crime". However, if only the 1949 GCs apply, the Talib could be prosecuted for any number of US Code violations.

I don't see the problem here - except the Tallib is not likely concerned with having to appear in Federal Court.

To the subsidiary questions:

Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? - YES.

If a member of a state force commits war crimes, can't he still engage lawful targets later on? - YES

Regards

Mike

[Bob's World]

I think this is one where the President should simply say "As the President of the United States of America, by special Presidential Directive, I ordered the killing of Usama bin Laden. We take the law serious and everyone involved in this mission was covered by my legal directive. Next quesion."

[jmm99]

showing the Colonial Marine undress uniform ("BDU") carved in stone.

In battle even less might be worn. In 1755, Capt. Daniel-Hyacinthe-Marie Liénard de Beaujeu led the charge against Braddock at Fort Duquesne. Capt. Claude-Pierre Pécaudy de Contrecœur, the fort's commandant, was too old and sick to take the field. Beaujeau stripped to leggings and mocs, putting on only his grade gorget. The gorget must have made a good target because he was killed by Gage's first volley. Beaujeu's five companies of Colonial Marines (each less than 2/3 of today's USMC platoon), some 100 FC militia and some 600 Indians ("coalition partners") then went on to inflict carnage.

It is not unusual for one pair of ancestors to underpin a French-Canadian surname - or French-Lousianan surname, as in the case of Sgt. Fontenot (Fonteneau). They didn''t have to switch beds to do so; they just had a lot of kids (link):

Jean Louis joined the French Colonial Marines as a young man and left France in 1720, at the age of 34, for assignment in the Mobile (Alabama) military district. Six years later (February 8, 1726) he married a widow from New Orleans (Marie Louise Henrique) and was assigned to the Poste aux Alabama (Fort Toulouse) shortly afterwards. Based on "roll call" records at the fort in the mid 1700s, it appears that Jean Louis was the only sergeant at the garrison of about 40 soldiers. He and Marie Louise had twelve children, 8 sons and 4 daughters, all born at the post. When these children became of age (teenagers), the boys joined the marines and married daughters of other marines and the girls married sons of other marines at the fort.

So true also in Canada - Marines married into Marine families (also fur trading and riverine trading families - the three groups fed on each other); their kids became Marines (or militia officers); etc., etc.

Not all Marines engaged in sharp battles ala Beaujeu. A lot of time was spent in garrison - and promotion was very slow. Moreover, much of their activity outside garrison was directed at the "Rule of Law", rather than "Laws of War". LawVol may appreciate this story - from Philippe de Rigault, Marquis de Vaudreuil, Letter, October 12, 1717 (link) (pp.592-593):

The trouble which prevented the principal chiefs of the Detroit tribes from coming to Montreal, was created by an Outaouac of that post and four others from Saguinan. These five men pretended they were going to war against the Flatheads; they proceeded to the river of the Miamis and there slew an Iroquois and his wife, who was a Miami woman, and two children. This wrongful attack concerns the Iroquois because the man who was killed was of their tribe. It also concerns the Miamis, for the man was married and living with them. This matter must be settled, and the Iroquois and Miamis must be prevented from taking vengeance on the Outavois and the other tribes of Detroit.

The Sr. de Tonty has already begun, for his part, to take action with the Miamis through the Sr. de Vincennes to dissuade them from their intention of avenging themselves and to remove every pretext for their pursuing this course which would give rise to a war between them and the people at Detroit and Saguinan, which it would be difficult to stop. He has induced the tribes of Detroit to join him in sending to Saguinan to seize these murderers and deliver them up to the Miamis.

The Outaouacs and Poutouatamis each sent a boat of their men, to which the Sr. de Tonty added a boat of Frenchmen under the command of the Sr. de Bragelongue, a Lieutenant, who brought back the three murderers to Detroit where the Sr. de Tonty had them under guard until he received news from the Miamis, to whom he had taken care, to make known the amends, which it was proposed to make to them. He hopes that they will be satisfied with this action and will accept as a complete reparation the presents which the tribes of Detroit, and the French also, are preparing to make them, and that this disturbance may be suppressed by this means. I hope so, too; but I shall not be able to get any news about it until next spring.

As regards the Iroquois, if they move in this matter, I shall find means to settle it with them, as they will not fail to bring their complaints to me before taking any action.

This (Lt.) Sr. Etienne de Bragelongue, was primarily an engineering type (his dad was an engineer, but also the 3rd ranking general officer in the French cavalry corps). Etienne was the aide-major du fort at Fort Chambly (primarily engineering and logistics), the major "FOB" for the Colonial Marines, on the Richelieu near Montreal) - later a capitaine of one of the Marine companies stationed at Chambly. He married and had one daughter who died young. Before his marriage, he managed another daughter by one woman and possibly a son by another woman. The son died without any issue. The daughter went on to marry and carried on the Bragelongue (Bragelonne - Viscount of, by Dumas, is based on another French branch of this family) line in North America - she has to have thousands of descendants.

How the "Rule of Law" went in 1717 on the Miami.

Cheers

Mike

PS: Bob, I agree with you. FULL STOP

[Polarbear1605]

and here on our own SWJ:
http://smallwarsjournal.com/blog/201...f-killing-bin/

...could not have said it better myself...except the article should have closed with "Inter arma silent leges: in time of war the law is silent" (law = rule of law of course)
IMO we are seeing how our politicians can get into trouble at the strategic level by mixing ROL and LOW. Can anyone give me an example of how our militray generals get into trouble at the strategic level mixing the two?

[jmm99]

a Marine named "Butch" ?

I read it and also thought it was a good article covering the basics that a rifleman should know (I'd skip the Latin "jus in bello" - right in war):

The law pertaining to the conduct of hostilities (jus in bello), which has developed since antiquity and includes certain provisions of the modern Geneva and Hague conventions, permits the sanctioned killing of an opponent in an armed conflict, regardless of whether he is armed at the moment he is engaged. So long as the opponent meets the minimum criteria to be regarded as a combatant (even an unlawful combatant), he may be engaged with deadly force, even if he is separated from his weapon. He may be killed while sleeping, eating, taking a shower, cleaning his weapon, meditating, or standing on his head. It is his status as an enemy combatant, not his activity at the moment of engagement, which is dispositive.

So, good job, Butch

--------------------------
As to the question (mostly outside of my ballpark):

Can anyone give me an example of how our military generals get into trouble at the strategic level mixing the two?

The Phoenix program (and SVN Pacification in general) opened itself up to criticism, as one factor, by treating VCI cadres as "civilians" (RoL) - unless they were themselves armed or accompanied by armed troops (LoW). Thus, if those VCI "civilians" were killed in the course of an operation, a "war crimes" charge was already halfway home. Of course, Phoenix (a mix of "Title 10" and "Title 50") was not a purely military program - so it is not a prime example in answer to your question.

Regards

Mike

[jmm99]

er.., rather the mouse.

From HuffPost:

SHODDY RAT REMOVAL IN DIRKSEN CAFETERIA: WHERE'S THE HOPE AND CHANGE?

Amanda Terkel was on the Hill today for, you know, reporting and stuff. While there, she witnessed just what has become of pest control in the NOBAMA administration. Amanda writes in: "There was a mouse in the Dirksen dining room today! We noticed it running around by our table and very quickly picked our handbags off the ground. One guy wasn't paying attention and the mouse nearly ran right over his feet, until everyone started to making yelping noises. I was about to take a picture of it (for Twitter) until a guy came over, stomped on it, killed it and then scooped it up and took it away. Everyone was so grossed out."

Capitol officials say the mouse was given a burial in a toilet in accordance with its religious custom, however there is no documentation of it. Also, there is a rumor that Glenn Greenwald is finalizing a scathing rebuke of the operation, maintaining that the mouse should have been captured.

And so it goes in Wonderland.

Cheers

Mike

[Ray]

Mike,

While none (well, at least the majority of the world) would lament OBL being killed, but questions that are being raised in Pakistan and by co religionists in India, is that how far can the US writ (US President's authorisation) legally apply beyond its frontiers as per international law?

Pakistan harbours terrorists and of that there is no doubt. And Pakistan, as a rule, denies their existence. Therefore, maybe the manner in which the US sorted out OBL is the only answer.

Therefore, my query as to what is the legal position on this?