Gitmo and the lawyers!

[jmm99]

.... making war against any nation outside that nation is not illegal.

does not offend my "lawyerly sensibilities" - nor any other of my sensibilities (assuming I have any).

My objection is that it is overbroad; and it allows the bad guys to hide among the good guys (lawful armed combatants who commit no atrocities and have combatant immunity - even when we kill each other).

You recognize that distinction when you ask for a statute that makes criminal "the actions of a foreign combatant who does abide by the laws of war". Obviously, there is no such statute or convention because that statement is the same in substance as what I said:

It is correct to state that a lawful combatant can make war against any nation anywhere so long as that lawful combatant accepts and applies the laws of war.

The defining "statute" is Common Article 2 of the GCs which makes the conventions applicable to the High Signatory Parties involved in an armed conflict (somewhat broader in scope than a war under Hague); but also to a "Power" involved in that armed conflict - if that "Power" accepts and applies the conventions (e.g., North and South Korea during the Korean War, although practice did not always conform to principle). If that is the case, that Power's armed combatants are lawful and fall into GC III (as PW/POWs) and its civilian adherents into GC IV (as protected civilians).

Now, what of a Power to an armed conflict that does not accept and apply the GCs to its own military actions and its own detainees - even in the minimalist view that the GCs must only be applied (giving an implied acceptance) ? Very simply, its armed combatants are not lawful combatants to which the PW/POW provisions of GC III apply. That is so even if an individual armed combatant of that non-complying Power himself otherwise complies with the "laws of wars" as we understand them.

And, its civilian adherents are not entitled to the protected civilian provisions of GC IV. That is the price that one pays for adherence to a Power that does not apply the GCs. So, do these combatants and civilians have any rights ?

The answer is affirmative - under Common Article 3 of all the GCs, which applies to any non-state actor ("Power") which does not apply the GCs.

Those provisions, which recognize detention of both combatant and civilian adherents of a non-complying Power, require a trial before a competent tribunal before execution, etc. Similar provisions are in the main body of GC III (if a CA 3 detainee claims PW/POW status) and GC IV (if a CA 3 detainee claims protected civilian status). The last two claims are what the DC habeas cases are all about.

We have not charged AQ detainees with the crime of being unlawful armed combatants (which is allowed under CA 3). Gary Berntsen feels they should be charged and executed if convicted - for which, there are some older precedents under the "common law of war" ("We shoot partisans, don't we ?"). I happen to disagree cuz I don't like "common law crimes".

What is not in dispute is that CA 3 allows detention of persons subject to its protection. I can see no limit on duration of detention - until the end of the armed conflict with the non-complying Power to which the person adheres. A large group of apologists disagree with me and demand that CA 3 people have to charged with a crime or released.

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As to your questions:

If neither of those apply [no criminal charges and not an armed combatant] and the individual was detained on a field of battle by another belligerent and we assumed control for whatever reason, what then?

The only valid reason for detention would be the civilian's adherence to the non-complying Power (e.g., to AQ). The DoJ claimed this as to the Uighurs and got smacked on the facts. I suppose this ground for detention could be useful where the person is a member of the non-combatant infrastructure of the non-complying Power - and you could prove that. Otherwise, he's a protected civilian under GC IV.

Or if the individual was captured in or as a result of combat action by US troops but no CA 3 status or criminal action other than engaging in combat is alleged ?

Since you exclude CA 3 status, the combatant cannot be a adherent of the non-complying Power (e.g., Taliban). A wayward Pakistani ISI advisor, perhaps ? Since Pakistan is a High Signatory Party to GC III, I suppose he would be a PW/POW under GC III. Interesting case hypothetical.

Were you thinking back to your mispent youth as an advisor ? Again, practice did not accord with theory - (e.g., Dan Pitzer, Nick Rowe and Rocky Versace - not a hypothetical).

You keep me up too late.