Wow. What can I say? This really demonstrates the nature of conflict Message V. Message as well as Soldier V. insurgent. The message rules the battlefield of the "hearts and minds."
Mullah Omar: Taliban Rules and Regulations
Not sure if this has been posted before, but FRONTLINE has a translated copy of Taliban rules and regulations as promulgated by Mullah Omar here.
Wow
Wow. What can I say? This really demonstrates the nature of conflict Message V. Message as well as Soldier V. insurgent. The message rules the battlefield of the "hearts and minds."
What is interesting in that message, out of the dimension of heart and mind battle, is that it is a rejection of the Geneva Conventions just as the laws passed by USA and the denial of war prisoner status.
I have not finish yet to go through it completely but it refers to Sharia as the unique law applicable in peace and war. One of the things in the Geneva Convention, part from the fact that it is a western rule born and breed regulation, is that it already recognises the Sharia as a concrete and important contribution to regulating war.
This does not cover just propaganda VS propaganda but shows the capacity of the enemy to take a decisive strategic move on the legitimacy battle field through challenging West morality in its conduct of war.
It also shows, somehow that the enemy is trying to close the second phase of Mao in revolutionary war. Promulgating laws and regulation to unify insurgents is coming just at the moment the coalition is breaking apart. We may have here also the proof of two possible evidences:
- Either the Taleb are on the verge to fall and are completely disorganised with a lost of legitimacy inside the population they are trying to “protect”. Which could be the case.
- Or the Taleb are strong enough to pass from disorganised groups conducting non coordinated guerrilla wars, each of them separately, to a united group under one command that is feeling capable to conduct a “conventional war phase”.
In both cases, the challenge is not only on the ground, it is also on the conduct of war. Taleb have been capable to shift the counter insurgency legitimacy battle field from governance to the symbols of legitimacy. In front of the positive approach of rights rule of law, they are capable to come with a tool with the apparence of rule of law based on a different referent with a negative understanding of it. But Sharia is one of the most important referent in the history of law.
THAT IS SCARY.
Taliban Detainee Provisions
We have some interesting detainee provisions, do we not:
Apparently, there are three modes leading to detention, etc. - captures, hostages and surrenders. I wonder if hostage (part 10) is an exact translation.Section 2
Regarding Prisoners
7 - If a local or foreign enemy is captured, they should be taken to the provincial authority immediately. The provincial authority will make a decision what to do with the captured enemy.
8 - When you capture drivers, contractors or soldiers, releasing them for money is prohibited. The provincial authority has the right to use him for a prisoner exchange. If someone wants to guarantee him, he needs to talk to the provincial authority. If the prisoner is a higher anking p erson then the IMAM assistant has the right to make a decision regarding his future.
9 - If an Afghan National Army member (ANA) is captured by the Mujahidin, the IMAM or IMAM assistant will make the decision whether to kill him, to use him for a prisoner exchange or to exchange him for money. If the captured person is converted to Islam, then the IMAM will exchange him if the captured person gives permission but there should be a pledge that he will not convert back to the infidels.
10- If the Mujahidin take people hostage and they cannot take them to their place for any reason and the hostage are infidel fighters or they are govemment workers, then the Mujahidin have the right to kill them. If the Mujahidin are not sure that the hostages are infidel fighters or government workers, then they have no right to kill them, even if this means the hostages must be freed.
11- lf an ANA or Afghan National Police member (ANP) surrender to the Mujahidin, they should not be killed. The Mujahidin should take care of them very well, no matter if they come with or without a weapon.
12- If the Mujahidin judge or the provincial authorities sentence a captured enemy to death they cannot kill him until the IMAM or IMAM assistant gives permission.
-------------------------
M-A Lagrange:
Please provide your legal argument for your assertion that "the laws passed by USA and the denial of war prisoner status" constitute "a rejection of the Geneva Conventions".
Bonne chance
Mike
I went through the document I tried to look at which articles are actually respecting the Geneva Convention and which are not.
Be careful, some articles are mix: as S2 Art9
In accordance with Geneva Convention
S1 art 2, 4,.
S2, art 8, 9, 11
S3 art 14, 15, 17, 18, 19, 20*
S7 art 36, 41
S11 art 50, 51,
S13 art 64
Not in accordance with Geneva Convention
S2, art 9,10,
S3 art 13, 19, 20*
S 7 art 36, 41
*I suspect traduction error or imprecision.
What I think is interesting is the negative approach of Law and Right in that document. Where a western document will say that authority has competencies to judge such issues, they go by that issue cannot be judge by any other authority. (see S9 art 43 as example).
Mike, we can argue long time and you know that. There is whole bunch of layers working on that at ICRC.
Unfortunately, I am not in position (I do not have access to all my material) to come with illustrated argument. But the detention of terrorist without status, either or comon right or prisoner of war is a denial of the Geneva Convention.
Also, the absence of compensation for the individuals that were not recognised guilty of any crimes. This is in opposition with Geneva Convention. I would say Geneva Convention it self (1949) and the 4th protocol on civilian populations.
My point is that if you want to take for strategic base of you legitimacy the rule of law then you have to apply rule of law. If you declare that Rule of Law is what you promote, then you have to apply it also.
If you start, even one time to argue that you will not apply the Geneva Convention to one category of population and purposely do it without legal frame work then you create a precedent. In Anglo Saxon law, if I do not mistake, the custom prime on the law. So if you introduce a new custom then you create a new legacy. That you may or may not formalise by a normative act as a law. But still you do introduce a legal practice and then endorse it.
Hey M-A,
Well, we could argue or we could discourse - my preference is for the latter.
We are probably coming at this from two different viewpoints: you from an Euro-centric viewpoint; I from a US-centric viewpoint. We should discuss those viewpoints.
The name Lagrange is "French", so may I posit that your legal foundation is in French Code Law or something similar ? It helps to know a little background as to legal knowledge.
In certain areas, Euro-centric law and US-centric law provide different answers to the same question. That they are "different" does not mean that either answer is wrong. Both answers may be right because of different constitutional structures - and the position of international law in those structures. Since I am sworn to uphold the US Constitution, that is the major constraint on my legal analysis. I happen to accept that constraint.
I'll think about how to present this in a brief, cohesive manner. A lot of the issues you seem to be interested in have been covered (at least to some extent) in War Crimes and its links - now approaching 400 posts in 20 pages.
Regards
Mike
Basic framework - US law
We'll start with the Supremacy Clause of the US Constitution:
The Constitution stands at the top of the pecking order. What are the "Laws of the United States" ? First off, except in very limited civil areas (admiralty is the major area), there is no Federal Common Law - and definitely no Federal Criminal Common Law.This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.
So, although the US is considered a Common Law Country, its Federal Law is primarily code. Of it, we have statutes enacted by Congress (usually with Presidential approval), as well as a host of regulations and rules issued by administrative agencies - and executive orders issued by the President.
The common law does exist in the states, whose common laws and statutory laws must be applied by the Federal courts in cases where state law applies - under the Rules of Decision Act (which has near constitutional status).
Just as "Laws" have a "gloss" (going beyond statutes), so also "Treaties" have a "gloss" to include international executive agreements, which are of two kinds: presidential executive agreements (made by the president alone based on his constitutional powers); and presidential-congressional executive agreements (made by both branches and therefore based on the combined powers of both branches).
Now, a "Law" cannot be made "in pursuance of" the Constitution if it violates the Constitution; and a "Treaty" cannot be made under the "authority of the United States" if it violates the Constitution since the United States has no authority to violate the Constitution. Interestingly enough, each of the three branches of government (legislative, executive and judicial) has the power to determine constitutionality; although traditionally the other two branches have usually accepted the constitutional decisions of the Supreme Court.
Thus, the Constitution is definitely the highest US legal authority. What of the priority between statutes and treaties ? Again, this is a "gloss" from the Supremacy Clause (its order of Constitution, Laws and Treaties) and from other provisions as well. The bottom line is that a subsequent statute may implement a treaty (under US law, some treaties are not self-executing), interpret and clarify a treaty (which may amount to substantial amendment), and even abrogate (nullify) a treaty. US law recognizes that abrogation can have international consequences, but if a statute abrogates a treaty that treaty is nullified. Abrogation of treaties by executive order or administrative regulations or rules is another story - as the Bush Department of Justice (DoJ) found out in the Gitmo cases.
The conventions we are concerned with (Hague and Geneva) are true treaties, presented by the President to the Senate for ratification (with or without reservations). I've attached a flow chart for international laws applicable to armed conflicts. The black and white portion was swiped from either a Geoff Corn or Charlie Dunlap article; the colorful portion is by JMM.
Besides the conventional treaty framework discussed above, the issue of US adoption of "customary" international law can present itself. As to that, I would apply a strict standard. It could be adopted by a presidential executive order for matters within his powers (as traditionally defined; not as John Yoo et al defined them). It could also be adopted by statute (where the combined executive and legislative powers provide great support for validity). The Supreme Court (SCOTUS) has little power in this area (unless it runs wild). It could, for example, adopt customary international law in the admiralty area (and has done so); but, even there, it could not adopt a "customary" international criminal law against piracy (because of the prohibition against Federal Criminal Common Law).
Last edited by jmm99; 10-17-2009 at 03:53 AM.
Well, I tried to come with something as good as yours.
The Block of Legacy in French Law
Block of constitution
Block of convention
Block of legacy
General principal of right
Decree + arretes (presidential and minisries)
administrative acts
The block of constitution or bloque de constitualite includes 1958 constitution, 1946 preambule and 1789 declaration of Human Rights the environment chart 2005 and the fundamental principles of the republic laws.
It represents the fact that all the norms included in it have the same hierarchical level in French Law. Also the constitution can be modified.
The block of conventions includes the international law: treaties and international conventions at the exclusion of the coutume. It also includes the European Community Laws.
The supremacy of treaties and international agreements on law, even at posteriori, has been stated by arrèt Nicolo (CE, Ass., 20 oct 1989). It has been extended to the European Commission Laws and regulations. But constitution keeps its primacy regarding domestic laws (CE, Ass., 30 octobre 1988, Sarran et Levacher. ).
The primacy of constitutional norms is limited as there are several systems of constitutionality control. Such control can be applied before promulgation of a law by the conseil constitutionel. But it is impossible for an individual (a physical person or a moral person) to take the constitution as a base to oppose to a law once it is in application. A new law that abrogates the previous one has to be promulgated.
Also, the jurice prudence does not have the same value in French Law. Robespierre and Saint-Just thought that it was not acceptable in a democracy to use jurice prudence. They believed it was an abnormal interference from judiciary power on legislative power and against the separation of powers.
As a direct consequence, judges are nominated as an administrative corps and not elected. The judge say the law but cannot interprets it.
I hope this short description of the difference will help. As you see, there is huge difference as the constitution can be modified, especially concerning European Union Laws and regulations. Also as International treaties have a higher normative status than domestic laws.
In France, I believe that the president would have never been in position to pass any kind of decree, administrative order or regulation that would go against a Convention or a treaty that has been signed and ratified.
Concerning the problem of detention and more generally the judiciary law in application in war, in France we do not have death penalty, it is unconstitutional and has been abrogated. The only laws that still have death penalty is the military law of exception that is in application only for the soldiers when in operation or if France declares the state of war and promulgate a decree or law stating that military law will apply. President can declare a state of exception but it must be revised regularly (every 6 month at least if I well remember) by the parliament and has to be limited in time with a clear dead line.
So, for civilians or opponents prisoners during military operations, the Geneva Convention always applies without any exception. In Ivory Coast, a case occurred that a prisoner died during his transfer. Then the soldiers and the chain of command have been under investigation. The same case happened in 2003 in DRC. There also, soldiers and officers responsibilities have been under investigation.
My point is not to compare or to show that those or those are better. I just believe that a strict respect of Geneva Convention is a tool to protect all parts. As stated by a college from ICRC, during war military use force and no one challenges that. The objective is to regulate it to preserve all parties.
Concerning our case, what is interesting is that Shariat is placed above all. Even above the laws and constitution of the Islamic State of Afghanistan.
The introduction is a quote of the Quran which needs to be exanimate, even in Arabic. (Unfortunately I do not read Arabic). Quoting is a common practice in Islam but the thing is the choice of the quote: you can quote all of a verse, a part of a verse, the interpretation of a verse, a version of a verse…
But still it refers at the Law of God as the referential law which is Shariat. This is in contradiction with the art4 S1, where Shariat is considered as a secondary law. Also the art 67 S13 gives the primacy to Afghanistan Islamic Emirates Laws.
The question would be what are the Afghanistan Islamic Emirates Laws?
Interestingly there appear to be variations between french and german constitutional law.
In Germany international treaties themselves have no immediate domestic effect.
They bind the german State, but not a german individual, not even a german goverment agency. Only when the international treaty has been transfered through a bill into german law it binds individuals or goverment agencys. International treaties have the same status as all other bills.Originally Posted by Article 59 II Basic Law
As the constituional court has the authority to review german bills in regard to their constitutionality, it can rule the transfer bill to be in violation to the basic law and dismiss the bill. Then the german state commits a violation of internation law, which binds Germany to this treaty, however the treaty has no domestic effect.
The only expection is Art. 25 of the basic law.
It is unclear if the general ruls are on the same level as the constitution, a level below the consitituon but above laws, or even above the constituion. However treaties arn't considered "general rules".
The need of a transformation bill even applies to european legal acts. However since the creation of european civil rights the german constitutional court has (in their view) voluntarily relinquished to review german bills who only transfer european law. Instead it will respect the rulings of the european court in regard to the compliance of the european act with european civil rights. The most important part of the recent Lissabon ruling was, that the consitutional court has hinted that it is willing to change course here.
In that respect I don't see the Taliban Rules as anything special. They simple do what every state (or group who think of themselves as a state) does. They act according to their domestic supreme norm (the scharia). As the Taliban havn't ratified the geneva treaty they don't even violate it.
M-A Lagrange point was:
To which jmm99 answered with a description of US constitutional law.
I realize that the US constitution is superior to international law. And that the US goverment is forbidden by the constitution to enact international treaties which violate the US constitution. But I don't understand how the US consitution prohibits the USA to follow specific articles of the existing geneva treaty. In my limited view of the US consitution and the geneva treaty there arn't any conflicts between those two. In that respect a violation of the geneva treaty by the USA (not saying that it has occured) is not obligatory because of the US constitution but a voluntary decision of the US goverment.
So isn't the real question: Has the USA violated the Geneva Treaty?
Last edited by Igel; 10-17-2009 at 05:00 PM.
Thanks for adding to ...
what could be an interesting thread. M-A and Igel have added French and German law to the mix. Anyone else is certainly welcome.
I have to read both posts (M-A and Igel) more carefully and compare them and US law. Some homework to do.
The points by Igel (numbered by me), I'll address now:
Answers:[1] To which jmm99 answered with a description of US constitutional law.
I realize that the US constitution is superior to international law. And that the US goverment is forbidden by the constitution to enact international treaties which violate the US constitution. [2] But I don't understand how the US consitution prohibits the USA to follow specific articles of the existing geneva treaty. [3] In my limited view of the US consitution and the geneva treaty there arn't any conflicts between those two. [4] In that respect a violation of the geneva treaty by the USA (not saying that it has occured) is not obligatory because of the US constitution but a voluntary decision of the US goverment.
[5] So isn't the real question: Has the USA violated the Geneva Treaty?
1. I started off with US Con Law because that is the basic framework on which US incorporation of international law rests. Igel's understanding of the supremacy of the US Constitution is correct. The approach is perhaps somewhat closer to German than French law (as posted by M-A and Igel); but it is different from both. To practice Comparative Law, which is exactly what we are doing here, we have to understand the simularities and differences between our respective basic constitutional systems and their relationship to international law. To put it simply, we have to shoot the 25m, 50m and 100m targets before taking on the 200m and 500m targets.
2. To my knowledge (off the tip of my skull), the Supreme Court has never found a US Treaty (presented by the President and ratified by the Senate) to be unconstitutional. It has found executive agreements (of both types, IIRC) to be unconstitutional. Someone (JTF or Ken, my guardian angels ?) please correct me, if I am wrong. As to the 1949 Geneva Conventions, their constitutionality is not questioned (although they were ratified with some minor limiting reservations; and since SCOTUS does interpret the law, the US interpretations may be different from the views in other countries). Be very much aware, that the US has not ratified Additional Protocals I and II to the 1949 GCs (mainly because of AP I). Since I made no claim that "US consitution prohibits the USA to follow specific articles of the existing geneva treaty", I don't know where that comes from.
3. I see no constitutional conflict either as to Hague or to the 1949 GCs (subject to all ratifying reservations and also subsequent interpretations, which may differ from those in other countries). I don't have a specific example in mind (we may get there); but let us say the German or French interpretaton of a specific GC article is "A" and the US interpretation is "not-A". The interpretation "A" could offend the US Constitution, whereas "not-A" would not offend. Both interpretations may in fact be reasonable. Law is not an exact science and reasonable people may differ in both inferences and interpretations.
4. Agreed that, if the US government (as an official national policy, as opposed to an abrogating statute duly enacted by Congress) adopted a policy (presumably through some executive order or administrative regulation and rule), which policy was contrary to a provision of the 1949 GCs as ratified and as subsequently interpreted and applied, that rogue policy, if not found to be unconstitutional or in violation of statute or of the treaty itself, would constitute a breach by the US (as a nation) of that 1949 GC provision. Please read my first sentence very carefully - it has some caveats. We then would have to consider whether it was a "grave breach" and what remedies are available. We are into the 200m and 500m range targets. Be patient.
5. In due course, we should look at how everyone in the World has accepted and applied the GCs (or not accepted or not applied them), and how everyone in the World has in some way breached them. That discussion would probably extend beyond my lifetime; but, in any event, discussion of GC breaches requires an exact fact situation and is not so simply answered as the question is put: "has such or such nation or non-nation violated the GCs ?"
I'm happy that you replied. I also think this could be a very interesting topic.
That came from my understanding of your post. I assumed it was a refutation of M-A Lagrange critic on US policy regarding the genevea treaties. I further assumed that you were presenting US Constitutional Law to show that it somehow prohibits the US to follow specific articles of the geneva treaty. I readily concede that these were just assumptions on my part and nothing you wrote.
I thought a bit on how to reply to your last post. I have the strong feeling that you want to discuss something specific. But to be honest I don't really know where you want to go.
I can imagine several 200m marks lying in very different directions. Right now I have nothing specific in sight, so I think its best if you lead the way.
I did some home work and still have more to carry. Especially on the French Law. The difference would come from 1789 Universal Declaration of Human Rights that has the same position than the constitution and therefore in France, no treaty or law can go against.
Concerning the combatants, well…
The 3rd GC of 1949 defines the status of combatant in Art4. The treatment reserved to combatants is also valid for the persons that do not enter in the status of combatant by derogating to Art4 until a tribunal did status on their quality of combatant or on their quality of civilian (Art5). Even the civilian population taking arms without having all the qualitative distinctions of Art4 line 1 and 2. (Art4, line6)
I do not see where someone is not falling under GC.
The main issue with Taleb for example would be the uniform. This has been long ago accepted that uniform is not necessary. The main points of Art4 line 2 are: having a chain of command and carrying openly weapons. In war context, it is recognized as sufficient. Knowing that GC do not apply during riots. For the practice of terror, then the operations of British Air Forces during WWII on German cities would be used as a precedent justifying the use of terror in military operations. (not my cup of tea but it happened). Then the use of terror is part of the coutume of West. Does not say it makes it legal, just pointing the fact that the Art4 line2 d) can be challenged. And concerning terrorism should not.
The difference between banditry or riots and war will come from the intensity and the duration of the combats that will qualify the situation as war Cf :TPIY, Le procureur c/Dusco Tadic, Arrêt relatif à l'appel de la défense concernant l'exception préjudicielle d'incompétence, IT-94-1-A, 2 Octobre 1995, par.70.
On this, the US DoJ already lost a case to qualify a terrorist action as war action. (I do not have the reference right now but I believe it was about an attack on an Embassy in Peru). They tried to argue that a 4 hours combat (I am not so sure of the total duration but was less that a day) was a situation of war based on the element that the assailants used war weapons. The quality of the means, the weapons, was not sufficient to qualify the action as war action due to the duration of only 4 hours.
I believe that 2001 action in Afghanistan would be qualified as war. Especially if based on intensity and duration.
So once the quality of war is establish all combatants fall under the Geneva Convention. The main issue here would be does the USA recognize the TPIY as a legitimate legal structure.
USA did not ratify the Rome Status and are not recognizing the International Penal Court to not face such problem. But still the statement of TPIY is preceding 2001 and the Patriot Act and any administrative act from the Bush administration. Logically, it should apply or taken as argument to search for application.
Otherwise, prisoners fall under banditry and it falls under civilian law. And there you will fall under the Human Rights Convention and the Convention on Torture. Did the USA ratify the Universal Declaration of Human Rights? I believe yes. The one on torture, I am not so sure.
In both cases, this does not stop USA to arrest and jail dangerous terrorist. What it obliges USA to, is to give them trial and therefore an open scene to express their views. Then DoJ would have had to make the proof of their guiltiness. That may have been an issue but I doubt of it.
Also, taking the ICRC line, in March 2008, they made a statement that can be resumed to: as the ratification of GC is universal, all parties are entitled to respect GC. Basically all countries did ratify GC therefore all countries are bound to respect it and there is no room to declare that you will not respect it. (It took them some time to realize that every body did sign the paper… By the way)
ICRC legal line is much in accordance with French Law than USA law as they place the Universal Declaration of Human Rights from UN above all.
But there we will go to discuss Rawls theory of distribution of justice.
And finally, if a president of USA can by administrative act turn a treaty bounding USA, then can't he turn the constitution?
Then the constitution is no more protecting the people of America from dictatorship. As wrote Sinclair Lewis: it can't happen her. But did it not just happen here? Then the precedent created to protect civilian and soldiers from inhuman treatment is a problem.
Concerning the Mullah Omar rules. the question that comes to me is what version of Sharia they use and where does it fall in the hierarchy of law. Is the Sharia the supreme Law, even above the constitution? Is Sharia the reference of the constitution, as for Human Rights in French Law? Or is Sharia the referal for domestic laws? Concerning the GC, as ICRC does recognise Sharia as a coutume in war conduct, does Sharia have a higher rank in hierarchy for the Taleb or as for ICRC, is Sharia a contribution to GC?
Also, GC are not bound to a government but to a country. So as Afghanistan did sign and ratify GC in the past, then Taleb have to apply it. But do they recognise treaty and conventions that were ratify before they came in power?
First to Igel
I love this:
You have already learned how to gracefully concede a point - an art which stands one in good stead. I'll have to try to remember that.from Igel
I readily concede that these were just assumptions on my part and nothing you wrote.
As to this:
The thread will take itself wherever it goes; but I do have a suggestion. Since the general forum is "small wars" (petites guerres) and this thread is titled "Mullah Omar", the geographic locale should be Astan. There we have a true plethora of legal systems to compare. Simply looking at the nations involved, we have the Coalition (all having slightly different approaches to the laws of war - and the laws of peace) and Afghanistan represented by the Karzai government. I leave aside the neighbors and the warlords.from Igel
I have the strong feeling that you want to discuss something specific. But to be honest I don't really know where you want to go.
Then, there are the non-state actors: International organizations (UN and NATO); NGOs and the belligerents Taliban (multiple groups) and AQ. They too have their legal regimes for comparison.
I expect the focus would be on the protections afforded combatants (whether they fall under GC III, Art. 4, et sec; or under Common Article 3) and those afforded civilians under GC IV.
There are also some grey areas. One is whether the laws of war should apply at all to certain groups (e.g., AQ), or should they be handled solely as a law enforcement matter (as the Eminent Jurists Report holds). Another is the applicability of Additional Protocals I and II.
Please be aware and understand that I am not a proponent of the John Yoo et al legal memoranda - these links from the War Crimes thread: here, here, here, here, here, here, here, here here, and here. And elsewhere in the forum via a general search for "Yoo": here, here, here, here, and here.
I suggest everyone read these links, which are less a negative attack on Yoo; but rather a positive expression of my approach to Common Articles 2 and 3 of the 1949 Geneva Conventions. Those in my opinion are the keys to legal definition of the combatants and distinction between combatants and non-combatant civilians.
The Hamdan thread also has a great deal of information on Astan's constitutional history, its governments and recognition of them (primarily from the US and UK viewpoints). The Lawfare thread also has some excellent links to articles which address the issues I suggest.
However, also understand that I am a traditionalist as to the laws of war, starting with the Lieber Code 1863, General Order 100; and that the US military generally over the years has got it right. E.g, I can't see where too much exception can be made to Joint Publication 3-63, 30 May 2008, Detainee Operations.
So, that's the homework assignment - links that took me many, many hours to research and source (apologies for any broken links in the postings, but that's the internet and there's always Google Advanced Search).
Cheers
Mike
And now to M-A
Much of what I've said to Igel applies to you. I've been pounding at this for about 3 hours and very soon have to do something else.
The links in the post above should keep you busy for a while; and they will answer most, if not all, of the issues re: GC Common Articles 2 and 3, and where to go in GC III and IV once past the CAs.
As to this:
I also do not see a hole in the GCs, through which a person can fall and not be covered by at least one GC article. That was one disagreement I had with John Yoo et al. I had violent disagreement with his concept of unlimited presidential powers, especially as applied domestically in the US (never implemented and in effect shelved by President Bush II).from M-A
I do not see where someone is not falling under GC.
As to your jump for the Taliban to Article 4 of CG III, you first have to get them past Common Article 2. I attach a pdf file which has the text and the commentary to Common Article 2, together with my brief comments. The flow chart, as I see it, puts the Taliban (and AQ) under Common Article 3, or in some cases under law enforcement rules (not under the laws of war). Civilians (not involved in either group) are unquestionably under GC IV, which has its own detention provisions if they are security risks.
As to this:
Yes, these are the questions I want to eventually discuss.from M-A
Concerning the Mullah Omar rules. the question that comes to me is what version of Sharia they use and where does it fall in the hierarchy of law. Is the Sharia the supreme Law, even above the constitution? Is Sharia the reference of the constitution, as for Human Rights in French Law? Or is Sharia the referal for domestic laws? Concerning the GC, as ICRC does recognise Sharia as a coutume in war conduct, does Sharia have a higher rank in hierarchy for the Taleb or as for ICRC, is Sharia a contribution to GC?
Also, GC are not bound to a government but to a country. So as Afghanistan did sign and ratify GC in the past, then Taleb have to apply it. But do they recognise treaty and conventions that were ratify before they came in power?
But, I've put up 15 links, two threads and one JCS publication that pretty much lay out my position on the legal framework that needs to be understood before tackling Sharia law. We may all have somewhat different legal positions and I'm not trying to force a consensus. I think you will appreciate the difficulties faced by three Coalition military lawyers, from different coiuntries, trying to come up with a consensus answer.
Don't get rained on too much.
Mike
Jmm99,
Thanks for compliment! But I only use this art if I myself am convinced that I was wrong. In my personal view that happens, of course, very seldom; so don't expect to much conceding...
Also thanks that you promoted me to the rank of a military lawyer, but I'm still only in education, just having completed my 1st Staatsexamen.
I'll read your links, but it may take a bit. Then I will also try to reply to your last post, M-A Lagrange.
To be honest, I'm very happy that you gave me this "homework". It feels good to engage with an area of law that interests me. For the time, no more learning for boring warranty claims etc.
---
Till I read the links, maybe a related question. Please note, that the following is up to now only an academic discussion. As far as I know there haven't been any court cases.
The basic law guarantees several basic rights (civil rights). These are binding.
Now some (in science and far-left politicians) have concluded that the Bundeswehr as part of the "executive" is fully bound by these basic rights. So for example if the Bundeswehr would a arrest a suspected terrorists, it would be bound by Art. 104.
This is obviously not very practical in the middle of Afghanistan. Furthermore one could contest, that the Bundeswehr may only transfer the arrested to Afghan Authorities if they would give the suspect the same rights, he has under the German constitution.
To give you another example, Art. 19 IV could be applicable
Meaning the suspect could seek a judicial review of the Acts of the Bundeswehr while still in custody. If one would strictly apply german administrative dispute law the Bundeswehr would probably be forced to hold him in custody till its case is reviewed and only then he could be transferred to Afghan Authorities. In extreme case the administrative court (in Germany) might even order a release.
This is all not very practical and has been criticised. One stated that the Bundeswehr in Afghanistan isn't part of the "executive" because it implements international law. A first start for this discussion can be found here (in German!).
So I'm interested how this is handled in the USA. Because if I read the Bill of Rights, I think that some of it Rights would apply to Foreigners in Foreign Countries. For example the Sixth Amendment only speaks of "criminal prosecutions" not of "criminal prosecutions against US citizens or in the USA".
[My knowledge of the Bill of Rights is restricted to the text itself. So bear with me, if there is some obvious common knowledge answer.]
I don't have time at present to dig out the links to the Geneva and Hague Conventions. For those who do, the relevant sections with regard to behavior of US and NATO troops would seem to be:
- The definition of “protected persons.” That is, those individuals the conventions are intended to cover.
- The process for determining whether an individual fits in a category of “protected person.” That was the purpose of the tribunals. Unfortunately, as a by product of the level of literacy, language comprehension, or the medias’ political narrative, many people read or heard “tribunal” as “trial.”
- Treatment of individuals who are determined by the tribunal not to be protected under the Conventions. On this score, I believe they are silent.
The phrase "unlawful combatant" does not appear anywhere in any of the conventions.
Hope this adds some clarity.
Last edited by J Wolfsberger; 10-19-2009 at 02:38 PM.
John Wolfsberger, Jr.
An unruffled person with some useful skills.
jmm99
I had understood that the US was not signatory to any of the Conventions, but Congress did pass a law requiring that they be honored. A fine distinction, I know. Is my understanding incorrect?
John Wolfsberger, Jr.
An unruffled person with some useful skills.
First to Igel.
Thanks for the German legal article. Seriously, cuz it evidenced again to me that four years of university German 45 years ago are locked away in back-mind filing cabinets with very rusty drawers. Got some, but not enough to be coherent.
As to the more substantial question (without any claim to any expertise in German law), the Basic Law provisions, if that is all there is, may just write the Laws of War out of the German "Law Book". That seems unlikely, but then the Basic Law goes back to early post-WWII days when we (US and the three other major ETO allies), in our infinite wisdom, pushed for a de-militarized Germany, where the Laws of War would be quite irrelevant.
If you could summarize the arguments for an independent German military law and Laws of War, that would be appreciated. IIRC, Fuch once commented that, from his perspective, military law is not relevant.
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As to this,
I have some answers - and my own pet scheme (at the end).from Igel
So I'm interested how this is handled in the USA. Because if I read the Bill of Rights, I think that some of it Rights would apply to Foreigners in Foreign Countries. For example the Sixth Amendment only speaks of "criminal prosecutions" not of "criminal prosecutions against US citizens or in the USA".
The answers are not simple. The general answer is that some Bill of Rights provisions might apply to non-US nationals whose rights are adjudicated before a US tribunal (note I did not say a US court), but others clearly do not because they would not apply to a US citizen tried before the same tribunal. The right to a jury trial is one that does not apply.
Let's take a current example: a Taliban member (let's say he had AK in hand to simplify matters) is taken prisoner by a US unit in Astan. Now, he might be simply handed over to the Astan authorities, ending the matter as far as the US is concerned. But, if he is detained in US custody, matters have to proceed as prescribed in the JCS Publication 3-63, Detainee Operations.
If the detainee disputes his status, his rights are as follows:
This tribunal must consist of three field grade officers (O-4 min.), a reporter who is a JA officer (O-3 min) and another officer to act as the detainee's "personal representative". This is not a new concept, but it seems to me to be not the highest and best use of five military officers.g. If a detainee’s status is in doubt in an international armed conflict, a tribunal will be conducted IAW [in accordance with] Article 5, GPW. The tribunal, convened by a commander exercising general courts-martial convening authority, will determine the status of an individual who commits a belligerent act and is captured by U.S. forces when there is doubt as to the individual’s status. The protections afforded EPWs under the GPW will apply to such individuals until their status is determined by the tribunal.
A note as to what has been claimed by detainees. While much has been said about classifying (as opposed to treating) Taliban detainees as EPWs, that is not a claim that is being made by them. They are not asking for status as GC III EPWs, but as GC IV civilians. Two reasons for that: (1) the Federal courts (from SCOTUS down) have made it fairly clear that a Taliban combatant will be classified under Common Article 3 and not under GC III; and (2) GC IV civilian status is a ticket out, whereas GC III EPW and CA 3 status are not.
In a sense, this is end of story if the detainee is an alien and is held in foreign territory. However, the Gitmo detainees added two twists to the story. The first was the CSRT panels, which operated much the same as the detention procedure with the same end - classification of the detainee under the proper GC. In the series of SCOTUS Gitmo decisions (and the subsequent lower court decisions), the courts made it pretty clear that the CSRT process was satisfactory for battlefield classification, but would not hold up to basic due process requirements for permanent classification.
The second twist was the military commissions. Now, they as finally evolved are very similar in composition and procedures to the courts-martial process under the UCMJ, which meets constitutional requirements. The primary purpose of the MCA (Military Commissions Act) was to try war and terrorist crimes, and not to determine the detainee's classification. However, the military judges in the few cases tried held preliminary hearings to determine classifications (because they had doubt about the CSRT process).
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Here is a modest proposal which solely addresses the detainee classification process. It could become more important if Bagram is determined to be subject to habeas corpus - and also could have avoided the Gitmo habeas mess that we presently have before the DC District and Circuit courts.
This proposal provides for an independent magistrate (note I did not say an Article 3 Federal judge). Please note that habeas corpus does not apply where there is an alternative due process tribunal that adjudicates the issue (e.g., the 100s per day deteminations by magistrates that there is probable cause to detain the prisoner in our domestic criminal law cases).
1. Continue the Detention Operations process, if there is a doubt as to status or if the detainee claims other than Common Article 3 status, as an initial screening process. That would not require tying up 5 officers; and could be done by one or more adequately trained officers or SNCOs (the latter might well be the best choice - I'm thinking of you, Ken). If the detainee does not like the result, then we go to Step 2.
2. The independent magistrate would be a lawyer, and in effect an administrative judge for the agency who appoints him. What agency ? I would say DoS because we are dealing with a tribunal in a foreign land. Since that magistrate would be doing nothing else but detainee cases, he or she would be up to speed as to the ruling case law. The DoD could be involved with a JA as "prosecutor" to present the probable cause to hold the detainee. The DoS could also have on hand a "public defender" to represent the detainee.
Is there precedent for this ? Yes, for better than a century, the US had consular courts (conducted by a diplomatic representative) which had jurisdiction up to and including the death penalty - without appeal to a higher court. Those were held to be constitutional. They were terminated during WWII since they were not being used that much and smacked of colonialism.
Just a thought - which would certainly be cheaper and more efficient than the present process.
Sounds reasonable. But your reference to habeas curpus puzzles me. Are you saying these two steps would eliminate the need for sparate hc hearings?
Here is a modest proposal which solely addresses the detainee classification process...
This proposal provides for an independent magistrate (note I did not say an Article 3 Federal judge). Please note that habeas corpus does not apply where there is an alternative due process tribunal that adjudicates the issue (e.g., the 100s per day deteminations by magistrates that there is probable cause to detain the prisoner in our domestic criminal law cases).
1. Continue the Detention Operations process, if there is a doubt as to status or if the detainee claims other than Common Article 3 status, as an initial screening process. That would not require tying up 5 officers; and could be done by one or more adequately trained officers or SNCOs (the latter might well be the best choice - I'm thinking of you, Ken
2. The independent magistrate would be a lawyer, and in effect an administrative judge for the agency who appoints him. What agency ? I would say DoS because we are dealing with a tribunal in a foreign land. Since that magistrate would be doing nothing else but detainee cases, he or she would be up to speed as to the ruling case law. The DoD could be involved with a JA as "prosecutor" to present the probable cause to hold the detainee. The DoS could also have on hand a "public defender" to represent the detainee.
John Wolfsberger, Jr.
An unruffled person with some useful skills.
Second to my fellow Michigander
Hi John
As to this:
The US signed all 4 1949 GCs and they were ratified by the Senate (with some minor reservations - and in the English translation). The 1977 Additional Protocals I and II were signed by the US diplomatic representative subject to ratification by the Senate, which refused ratification. IMO, the Senate did so for good reasons that still persist (there are articles on this in the Lawfare thread).from JW
I had understood that the US was not signatory to any of the Conventions, but Congress did pass a law requiring that they be honored.
Some AP I and II provisions (in fact, quite a number of them) were substantially enacted into positive law by four acts: War Crimes Act, Anti-Torture Act, Detainee Treatment Act and the Military Commissions Act.
Hope this helps on the first question.
As to this:
That came from the Bush II administration and was enacted into positive law in the Detainee Treatment Act and the Military Commissions Act.The phrase "unlawful combatant" does not appear anywhere in any of the conventions.
My personal opinion is that this was an unfortunate choice of words because it emphasizes the low level guy with an AK, to the exclusion of the higher ranking cadres and infrastructure people who are much more HVTs.
In a sense, no person is "unprotected" by the 1949 Conventions - all have to fit in somewhere. The US courts have chosen Common Article 3 as a "home" for those who do not fit into the 4th and later articles of GC III and IV.
In the sense of combatant immunity, "protected status" applies only to those getting past Common Article 2 and meeting the requirements of Article 4 et seq of GC III.
Regards
Mike
If JMM were upheld by SCOTUS on this:
Yes.Are you saying these two steps would eliminate the need for sparate hc hearings?
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