Capture, Detain and COIN: merged thread

[Entropy]

I should have been more specific - I only meant to ask about the US. Is there a legal standard or regime and if so, what is it?

[jmm99]

based on the various "War Powers" granted the President and Congress under Articles I and II. The 2001 AUMF is an example of Presidential and Congressional joint action.

Article III grants no "War Powers" to the Judiciary; but because of Presidential and Congressional actions and inactions after the 2001 AUMF, the courts have been dragged into the picture.

Regards

Mike

[Entropy]

I'm not asking whether it's a political question or not. Let me explain in greater detail. You stated:

Below a certain violence level, they are criminals; above that level, they are combatants (albeit probably irregular and not privileged under the GCs).

I have not seen that distinction made before - that a person's status as either a criminal or combatant is determined by "violence level." I understand articles I & II and the AUMF and I have a passing non-lawyer understanding of the various cases and issues - However, none of those, to my knowledge, use "violence level" as the distinguishing factor splitting combatants from criminals.

To put my question another way, where is the threshold between criminal and combatant violence, who/what has the authority to set and/or alter that threshold, and what is the basis for using "violence level" as a threshold in the first place?

[jmm99]

though I'm not a lawyer anymore, but a "retired gentleman" - to steal a Victor McLaughlin line.

Supply your own definition of what is or is not an "armed conflict" if you don't want to accept my answers. The distinction based on violence level seems obvious to me; but apparently not to you. It's quite possible that I cannot help you. So be it.

Regards

Mike

[Entropy]

The distinction based on violence level seems obvious to me; but apparently not to you.

Perhaps you should read what I wrote again. I'm not questioning the legitimacy of a distinction based on violence level - actually my questions implicitly assume such distinction exists. Rather, I'm simply asking where the threshold is and who/what sets the threshold. In short, what level of violence does a person have to engage in before they're considered a combatant and not a criminal? If the distinction is to have any meaning then this threshold must be definable. The answer you've given is to suggest that "it's political." If by "political" you mean completely arbitrary or that it's the equivalent of the Justice Stewart pornography standard then I guess that does make sense logically.

[jmm99]

a shared commonality with Potter Stewart:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

from his concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964); or as phrased in small barnyard animal terms:

Suppose you see a bird walking around in a farm yard. This bird has no label that says 'duck'. But the bird certainly looks like a duck. Also, he goes to the pond and you notice that he swims like a duck. Then he opens his beak and quacks like a duck. Well, by this time you have probably reached the conclusion that the bird is a duck, whether he's wearing a label or not.

Richard Cunningham Patterson Jr., while US ambassador to Guatemala (1948-1950), on how to PID a Communist.

One might prefer a more "exact", "legal" definition of, say, "obscenity" - so, here is one:

1.whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;

2.whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and

3.whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15 (1973)

Is this test better than Stewart's "know it when I see it" or Cunningham's "like a duck" ? Five justices (Burger, White, Blackmun, Powell, Rehnquist) thought so; but four (Douglas, Brennan, Stewart, Marshall) did not.

Thus, answering your final question:

from Entropy
If by "political" you mean completely arbitrary or that it's the equivalent of the Justice Stewart pornography standard then I guess that does make sense logically

The process (in the US, and elsewhere, for that matter), for determining whether one is "at war", "engaged in hostilities", "involved in the use or threat of the use of armed force" or "engaged in an armed conflict", is not "completely arbitrary". Each person who has an opinion as to a specific situation can usually provide reasons for that opinion.

I'd say the situation (cf., also in defining "insurgency" and "counterinsurgency"), particularly with these "Not Real Wars" (which are very real to the people directly involved in them), is more akin to this:

Once upon a time there was a certain raja who called to his servant and said, "Come, good fellow, go and gather together in one place all the men of Savatthi who were born blind... and show them an elephant." ''Very good, sire," replied the servant, and he did as he was told.

He said to the blind men assembled there, "Here is an elephant," and to one man he presented the head of the elephant, to another its ears, to another a tusk, to another the trunk, the foot, back, tail, and tuft of the tail, saying to each one that that was the elephant.

When the blind men had felt the elephant, the raja went to each of them and said to each, "Well, blind man, have you seen the elephant? Tell me, what sort of thing is an elephant?"

Thereupon the men who were presented with the head answered, "Sire, an elephant is like a pot." And the men who had observed the ear replied, "An elephant is like a winnowing basket.'" Those who had been presented with a tusk said it was a ploughshare. Those who knew only the trunk said it was a plough; others said the body was a grainery; the foot, a pillar; the back, a mortar; the tail, a pestle, the tuft of the tail, a brush.

Then they began to quarrel, shouting, "Yes it is!" "No, it is not!" "An elephant is not that!" "Yes, it's like that!" and so on, till they came to blows over the matter.
...
O how they cling and wrangle, some who claim
For preacher and monk the honored name!
For, quarreling, each to his view they cling.
Such folk see only one side of a thing.

Udana 68-69. Note that the term "elephant" was expressed from the gitgo; the problem was in defining that "large beast" more exactly.

The Lieber Code, the Hague Conventions, the Geneva Conventions, the Kellogg–Briand Pact (aka "The General Treaty for the Renunciation of War"), and the UN Charter have all confronted the elephant. From them, no bright-line definition for "war" emerges.

Saint Carl recognized the problem:

I shall not begin by expounding a pedantic, literary definition of war, but go straight to the heart of the matter, to the duel. War is nothing but a duel on a larger scale.

On War (Howard & Paret), p.83.

He did not provide a direct answer as to when "the smaller scale duel" becomes "the larger scale war".

A duel involves force (violence), but may or may not be criminal depending on the country and the times. At what point does the aggregate violence go beyond a duel and amount to war ? That is my "political question".

Jean Pictet's Commentary on Convention (III) relative to the Treatment of Prisoners of War, Article 2 (which introduced the concept of "armed conflict" as being broader than "war") expresses a very low bar for when an "armed conflict" comes into being:

It remains to ascertain what is meant by "armed conflict". The substitution of this much more general expression for the word "war" was deliberate. It is possible to argue almost endlessly about the legal definition of "war". A State which uses arms to commit a hostile act against another State can always maintain that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression "armed conflict" makes such arguments less easy.

Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4. Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.

The Convention provides only for the case of one of the Parties denying the existence of a state of war. What would the position be, it may be wondered, if both the Parties to an armed conflict were to deny the existence of a state of war? Even in that event it would not appear that they could, by tacit agreement, prevent the Conventions from applying. It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests. Even if the existence of a state of war is disputed, Article 3 can be applied.

Common Article 3 applies to an armed conflict that is "not of an international character" - which is the basis for the 2001 AUMF.

To repeat Pictet:

Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.

Thus, in his view, the Convention applies even in a non-lethal "cross-border incident". When Common Article 3 (and Additional Protocol II, for those states acceding to it) come into play is a more difficult question.

In conclusion, my "political question" is no better regarded as a "legal question". In our real world, the question (no matter how regarded) is still subject to the "elephant test".

Regards

Mike

[jmm99]

On 31 March 1999, Yugoslav forces captured three U.S. soldiers conducting a security patrol along the border between the FRY and the former Yugoslav Republic of Macedonia (FYROM). That took place one week after the first bombs were released in Operation Allied Force.

The initial statements by NATO, Pres. Clinton, SecDef Cohen and DoS's Jamie Ruben were confusing at best, and potentially dangerous to the welfare of the three soldiers at worst.

Ken Bacon from DoD cleared the air by declaring that the situation was ruled by the Laws of War (LOAC), and that the three soldiers were PWs under GC III. They were released about a month later via diplomatic efforts.

The CLAMO Lessons Learned from this incident is attached below as a pdf snip, Kosovo Lesson - PW.pdf.

The DoD has consistently taken the position that the Laws of War (LOAC) are the primary rules for all military operations, even for operations that involve no armed conflict. At that, they go beyond Jean Pictet. Clearly his opinion as to cross-border incidents has been accepted in US practice (e.g., Kosovo).

One must keep in mind that while DoD doctrine favors the Laws of War, the Standing Rules of Engagement (in their default "defense of self and others" configuration) are generally restrictive and parallel the US law enforcement rules (and Tennessee v Garner).

Regards

Mike