Law and the Long War

[LawVol]

Lawvol,What about the fact that they are not a Belligerent Army.....they were declared Illegal combatants....hence they were and are not entitled to any protection under the law...except to be executed as spies.

I'm curious as to where in international law one can find the category "illegal combatant?" I only know of two categories: combatant and non-combatant, although differing terms are sometimes used (e.g. civilian for non-combatant). I aks this not to be coy, but to illustrate a point. Applying Hague to modern times, and in light of Geneva, one can conclude that Hague Article 44 (quoted above) would apply to combatants rather than just a belligerant army.

Given the choice of applying a combatant and non-combatant status to terrorists/guerillas/insurgents or whatever the nom de jure is, I think combatant would apply. Of course, this might also mean giving them POW status once captured, but I don't really see a major problem with this. As courts-martial in our own country shows, combatants can be tried for the commission of crimes in war (i.e. war crimes). But I digress.

Contrary to the thought that this amounts to nothing lore than simple legal nit-picking, it goes to the heart of determining legality. If I don't ask the questions, you get useless legal advice in the form of the seemingly standard legal response "it depends." In the scenario offered, possible differences with criminal law is the detained person's freedom to leave, the right to an attorney, the right to remain silent, etc. Since the scenario, IMO, should not involve criminal law, she would not necessaily have any of these rights, but would in a criminal law context. In other words, if she was merely a witness, she'd be allowed to leave. If she was a suspect and therefore actually being detaining, a Mirands warning would come into play, something I pretty sure battlefield interrogators do not want to do (maybe I'm wrong though since I've not worked with any).

Under the law of armed conflict, different rules come into play but, as a result, you're constrained in what you can do. There are provisions in international law that proscribe the torture of civilians (which the wife and sons are) and this threatening to do so indicates a willingness on the part of the US to ignore international law. Of course, some would say we're already doing this given the torture stuff in the news of late, but I'm only talking about torture vis-a-vis civilians. As a JAG (or any lawyer for that matter), my advice is not limited solely to the legal questions but should also consider the interplay between the legal issues and policy, strategy, etc. In the present case, this also means advising with that in mind. Thus, offering to violate international law is not something that should be taken lightly in light of the our need for coalition partners or at least have some folks quietly acquiesce.

As to "The LAW is being used as a weapon aginst US Soldiers", you'll find no argument against that proposition from me. What we should be exploring (and implementing) is how to use the Law as a weapon for US forces. At most, defensive measures have been employed in that area. Purely defensive measures generally don't work well in law. At some point, you have to at least mount a counter-attack.

I'd be very interested in hearing any thoughts you may have on how we might go about doing this. I have an interest in this as well and recently explored the issue in my LLM thesis. Unfortunately, for our purposes here, the thesis was pretty much limited to space law issues but I may be broadening its scope.