Defending Hamdan

[jmm99]

Legitimacy as a Battlespace
.....
As a note, I should point towards an absolutely excellent answer to my final question was recently posted at the Small Wars Council (thread; post) by JMM99, who is following the CT Lab symposium (and enjoying "educating" me).

http://www.terraplexic.org/review/20...ttlespace.html

and now, I'm going to have to live with being judged by a standard of "absolute excellence" - a standard that will not be met. In any event, thank you for the kind words - I think.

Your factual point in your post above, which is ..

For most people, I suspect that the idea that a person can be taken from their home in one country and charged by another nation under its domestic laws (and without their same protection) is terrifying. Not only is it terrifying, it will, inevitably, undermine the perception of a rule of law, especially if the "law" can be changed and those changes applied retroactively. This strikes at the heart of the perception of a legal system as "legitimate", by attacking people's perceptions regardless of the actual legality of the action.

certainly has perceptive reality - especially with the caveats you list:

1. "without their same protection" - not necessarily fatal in legal logic: that is, to say, US citizens will receive greater rights when prosecuted for the same crime than aliens (JW Lindh vs. Hamdan) - after all, JWL received a longer sentence (and that, after a plea bargain !). Where it becomes more than a capillary cut is where the perception previously created is just the opposite. For years, the US admins (joined often times by the courts) have pushed the concept that we treat everybody in the world the same - you're all just as good as US citizens - one fuzzy, cuddily little world. We are all citizens of the world ! When reality crashes against that perception, we are getting into arterial cuts - from an agitprop, not legal, standpoint.

2. "especially if the "law" can be changed" - again not necessarily fatal from either a legal or agitprop standpoint. In fact, it could be a plus - admission of a screw-up should be regarded as a strength, not a weakness. In our current culture, admission of error seems not the norm - unless an abject apology keeps you out of the Big House, or mitigates the punishment. Admittedly, the sad legislative and administrative history of DTA and MCA is not a good example of how to admit error and to correct them. In fact, the changes seem to have created an even bigger sinkhole, which ended up being tossed in the laps of the DC District and Circuit judges.

3. "and those changes applied retroactively": - I haven't talked about that much in "War Crimes". No definitive decision has held the Ex Post Facto Law Clause applicable. SCOTUS may have to decide that issue. I have a bias there, to the extent that I (like Robert Taft, Sr) questioned the validity of Nuremberg and Tokyo - because of the ex post facto doctrine, despite the very real crimes charged. Having said that, I also have to recognize the WWII War Crimes Trials as precedents, which seem controlling here - since their judgments gave fair warning to future man-eaters.

My bottom line feeling (just that) is that the DTA-MCA system can be salvaged - but it will take people like M.J. Keith Aldred and the working DC judges to do it. While some at terraplexic look at what happened after 9-11 as "seige mentality", I look at the legal aspects largely as a matter of incompetence; and a refusal to admit reality when that reality did not fit the perception that was desired.

[jmm99]

Can you be partly pregnant ?

Absurdities, Ironies, and Other Observations
Brian Glyn Williams
Oct 1, 2008 at 4:50

As to Marc Tyrell's question of "when does a non-state actor become a state," in the case of Al Qaeda in Afghanistan, it had become a state-within-a-state by about 1998. Bin Laden and his commanders sat in on Taliban shuras (councils), helped formulate foreign and domestic policies, and may have made up as much as 20% of the Taliban fighting force in many campaigns. The Taliban were not a state sponsor of terrorism, but a state sponsored by terrorism in this sense (although I would argue that the vast majority of Arabs in Afghanistan were not involved in terrorist operations, they were involved in military operations. It was these same non-state actors who were defined as unlawful combatants or terrorists after 9/11).

http://www.terraplexic.org/review/20...ervations.html

He makes the same points in his main article.

Some legal comments (fairly brief) here.

1. The Taliban was not a state; AQ was not a state, within or without Taliban. Afghanistan was and is the state (nation). Williams (who should know better) is confusing a government (recognized or not) with a state (nation). Once a nation is recognized by the international community, that nation continues until it is absorbed in another nation (and becomes part of that state), or partitions itself into two or more nations (e.g., Russias's claim as to S. Ossetia and Abkhazia). That basic I Law 101 rule applies even if the nation has no government - a case which Afghanistan approached on 9-10-2001.

2. The Taliban was not generally recognized as the government of Afghanistan. True, it controlled a large amount of its territory (85% ?), but hostilities were still in process. Lest we get into the different concepts that supposedly control recognition (it is ultimately a political question) - de jure vs. de facto; legitimate existence vs. effective existence, etc., I have a few factual questions about the Taliban (and AQ's Ansar "brigade"), which avoid the recognition issue:

Did the Taliban state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did the Taliban abide by the provisions of the GCs in their armed conflicts with the Northern Alliance, US and allied forces ? If so, make your case - prove it

Did AQ-Ansar state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did AQ-Ansar abide by the provisions of the GCs in their armed conflicts with the Northern Alliance,
US and allied forces ? If so, make your case - prove it

If you wonder why I am asking these questions, consult the Reporter's Notes to common Article III and preceding Articles I & II of the 1948 GCs.

3. Agree factually on the AQ influence within Taliban. Happened to be re-reading vol 1 of the Pentagon Papers the other night - a cure for insomnia - about the VM and VC organizational structure and control of their Popular Fronts. Now, if AQ happened to be an international war criminal organization, would not that make Taliban part of that conspiracy - because, as Williams says: "The Taliban were not a state sponsor of terrorism, but a state sponsored by terrorism in this sense [of AQ participation in Taliban]. Cite: Numerberg judgments on international criminal organizations.

4. Agree factually that "... the vast majority of Arabs in Afghanistan were not involved in terrorist operations, they were involved in military operations. It was these same non-state actors who were defined as unlawful combatants or terrorists after 9/11." Yes, they all were run through basic training and the foot-soldiers were separated from those who were suited to special operations. The same argument was made at Nuremberg - that the Waffen SS should be distinguished from the Gestapo and the executioners. That argument didn't work then - why now ?

-----------------------------------------
Comment (very much IMO)

The first principle of trial work is primacy - the attack is aimed at the arteries (head and heart shots are rare) as soon as you find a seam (open door), taking your best shot (or shots, if you can MIRV your attack). Never go after the capillaries, except to probe for a seam.

Applying that principle, the prosecution in the "War Crimes" cases should have been directed to go after the senior man-eaters (KSM, etc.), with everything that the Nuremberg and Tokyo precedents would allow - AQ as an international criminal organization, aggressive war, crimes against humanity and run of the mill war crimes where applicable. You either win that or you don't - nothing ventured, nothing gained.

Instead, the initial attack was aimed at such as Hamdan (partly cleared) and Parhat (wholly cleared) - the most sympathetic cases (for the defense) that could have been selected.

Consider that for a moment.

[selil]

What about the Indian Tribes of the United States? They are an association of nations within the United States and have limited sovereign powers. I don't believe they've ever been recognized by anybody yet they are given that status.

[jmm99]

Hey Selil,

Actually know a bit about that topic, but it will move us off-topic here. They do have a special status - similar to that of ASSRs in the old Soviet Union.

I'll send you a PM on that.

[jmm99]

Since this Article will enter into the discussion, everybody might as well have access to it without having to search the Red Cross website.

The text of Article 2 is short, but has a much longer legislative history which is reflected in the Commentary.

1949 GC III - Treatment of Prisoners of War - Article 2

Art 2. In addition to the provisions which shall be implemented in peace time, 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.

The Commentary is generally held to be pursuasive, but not binding on a court, when considering the text of the Convention

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Commentary
Part I : General provisions

[all snips in this and following parts are from pp.19-27 of the Commentary]

[p.19] ARTICLE 2. -- APPLICATION OF THE CONVENTION
GENERAL AND HISTORICAL

[pp.19-20]
...
.... Since 1907 experience has shown that many armed conflicts, displaying all the characteristics of a war, may arise without being preceded by any of the formalities laid down in the Hague Convention.

Furthermore, there have been many cases where Parties to a conflict have contested the legitimacy of the enemy Government and therefore refused to recognize the existence of a state of war. In the same way, the temporary disappearance of sovereign States as a result of annexation or capitulation has been put forward as a pretext for not observing one or other of the [p.20] humanitarian Conventions. It was necessary to find a remedy to this state of affairs and the change which had taken place in the whole conception of such Conventions pointed the same way. The Geneva Conventions are coming to be regarded less and less as contracts concluded on a basis of reciprocity in the national interests of the parties, and more and more as a solemn affirmation of principles respected for their own sake, a series of unconditional engagements on the part of each of the Contracting Parties ' vis-à-vis ' the others. ...
....
[pp.21-22]
...
But the draft text said nothing about the relations between a belligerent, or belligerents, bound by the Conventions on the one hand, and a belligerent, or belligerents, not bound by it on the other hand. The ' clausula si omnes ' (4) which was included in the 1906 Geneva Convention -- but which was never invoked during the First World War, although it might appropriately have been in the case of Montenegro -- was omitted in 1929. But although the Convention was binding upon the Contracting States in their relations as between each other, they were still under no obligation in regard to States which were not parties to that instrument. The ideal solution would obviously have been that all the Parties to a conflict should be obliged to apply the Convention in all circumstances, i.e. even if the adversary was not a party to it, and despite the fact that the Convention would be a ' res inter alios acta ' for the latter.

There could be no question of reverting to the ' clausula si omnes ', which had fortunately been abandoned in recent times, since it no longer corresponded to humanitarian needs. The 1929 Convention had already departed from it by stating in the second paragraph of Article 82 that "in time of war, if one of the belligerents is not a party to the Convention, its provisions shall, nevertheless, remain binding as between the belligerents who are parties thereto". Thus the provisions concerning prisoners of war were given the binding force of which they had been deprived by the solutions adopted at the Peace Conferences. The fact that one of the belligerents was not a party to the Convention could no longer nullify its applicability.
Although from the legal point of view there was no way to extend the scope of the Convention, it was necessary to find one on the humanitarian plane. The Committee accordingly suggested to the Governments represented at the Diplomatic Conference of 1949 that the following two sentences be added to Article 2 :

"In the event of an international conflict between one of the High Contracting Parties and a Power which is not bound by the present Convention, the Contracting Party shall apply the provisions thereof. This obligation shall stand unless, after a reasonable lapse of time, the Power not bound by the present Convention states its refusal to apply it, or in fact fails to apply it." (5)

[p.22] The Diplomatic Conference also considered two other proposals (6) -- one, from the Canadian Delegation, suggesting that the Convention should also be applicable to a Power not party to the Convention so long as that Power complied with its provisions, and another, from the Belgian Delegation, which read as follows: "The Powers which are a party to the Convention shall invite the Power which is not a party to it to accept the terms of the said Convention; as from the latter Power's acceptance of the Convention, all Powers concerned shall be bound by it."

The fact that there was no objection to this principle was a sure sign that the time was ripe for this step forward in international law. The discussion turned solely on the conditions to be fulfilled. The condition underlying both the Canadian proposal and the proposal of the International Committee of the Red Cross was resolutive, while the Belgian proposal was based on a suspensive condition. As agreement could not be reached on any of these proposals, they were discarded in favour of the compromise wording of the present text.

The Rapporteur of the Special Committee gives the following explanation of the motives which guided his Committee: "As a general rule, a Convention could lay obligations only on Contracting States. But, according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized. The text adopted by the Special Committee, therefore, laid upon the Contracting State, in the instance envisaged, the obligation to recognize that the Convention be applied to the non-contracting adverse State, in so far as the latter accepted and applied the provisions thereof" (7).

(4) [(1) p.21] Clause providing that obligations are binding on a belligerent only of ' all ' the belligerents on the opposing side (principal adversary and allies of that adversary) are also bound by the same obligations;

(5) [(2) p.21] See ' Remarks and Proposals submitted by the International Committee of the Red Cross, ' p. 9;

(6) [(1) p.22] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-B, pp. 53-54 and 107-108;

(7) [(2) p.22] Ibid., Vol. II-B, p. 108 (First Report drawn up by the Special Committee of the Joint Committee);

Rather long, but the history of the "accept" and "apply" clause has special relevance here.

[jmm99]

Text

Art 2. In addition to the provisions which shall be implemented in peace time, 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.

Commentary

PARAGRAPH 1. -- ARMED CONFLICTS INVOLVING
THE APPLICATION OF THE CONVENTION

By its general character, this paragraph deprives belligerents, in advance, of the pretexts they might in theory put forward for evading their obligations. There is no need for a formal declaration of war, or for the recognition of the existence of a state of war, as preliminaries [p.23] to the application of the Convention. The occurrence of de facto hostilities is sufficient.

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 (8) 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.

(8) [(1) p.33] This was the Special Committee of the Joint Committee. The provision in question was discussed, first as Article 2, paragraph 4 (i.e. with the numbering it had in the Stockholm draft), and later as Article 2A. See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-B, pp. 40-48, 75-79, 82-84, 90, 93-95, 97-102;

This is self-explanatory - the key is that a "declared war" is not a material factor.

[jmm99]

Text

Art 2. ...
.... 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.

Commentary

PARAGRAPH 2. -- OCCUPIED TERRITORIES

This new provision is particularly pertinent for the protection of civilian persons under the Fourth Convention, but its inclusion is none the less appropriate in regard to prisoners of war, since, even in the absence of resistance, the Occupying Power might be tempted to intern all or part of the armed forces of the adversary in the interests of its future security. For that reason it was necessary to ensure that such internees would be treated as prisoners of war throughout their detention.

While not expressly mentioned in the Commentary, Art. 2, para 2 has obvious application to a situation where two factions (each claiming to be the legitimate government of a "High Contracting Party", assuming the nation in question previously adopted the Convention) are fighting over that nation's territory. In that case, only one of them can be the legitimate government (and representative of the "High Contracting Party") of the nation. The other faction would be covered as a "Power" to the conflict by Art. 2, para 3.

The situation would be altered factually (and somewhat legally) if one of the factions claimed that it was forming a new nation (state). In that case, the other faction would continue as representative of the "High Contracting Party", and the "new nation" faction would still be covered as a "Power" to the conflict by Art. 2, para 3.

Afghanistan 9-10-2001 involved either situation 1 or 2. Post 9-11-2001, a number of "High Contracting Parties" entered the picture. Which of them, and for what time frame, was an "Occupying Power" is a mixed question of law and fact.