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Cutting the Gordian knot One of the current controversies around the war on terror is how to treat the prisoners. Dale Franks at the excellent Questions and Observations blog gets it pretty much right, I think.
My preferred method of dealing with these terror prisoners would be to get two captains and a major together as a tribunal, declare them to be unlawful combatants, and put them in front of a firing squad. Now, maybe, because we’re nice guys, we could let them know that if any of them give us verifiable, useful information, then we’ll commute their sentences, and won’t shoot them. Otherwise, however, it’s a blindfold and a last cigarette for the lot of ’em.
The difference of course, is that doing so would be legal. It would be part of the accepted customs of warfare that have been generally agreed upon for over a century. Torturing or beating them to death, without even the convenient fiction of legality, is not.
I found very little to quibble with in his excellent essay on the subject.
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Quibble 1:
You are cheering on a death squad, I know that death squads are popular within the administration, but I don’t thing that sort of thing should be encouraged.
Quibble 2:
Morally it is no different from what the 20th century totalitarian regimes did.
Quibble 3:
It is of course illegal under international law. (Not that I think you care). Just because you assert that someone is some special class of prisoner does not mean that they should be striped of all legal protection, and all liberties including the most basic, the freedom to live.
Quibble 4:
This plan amounts to the goverment killing someone without a trial, without evidence that would stand up in a trial (which is why they don’t want to have trials). They are already planning to lock up people for life based on nothing that would stand up in a trial, and of course without a trial.
This is not a good direction to be going in, it is the road to death.
I think you are blurring the strict limits the essayist is outlining. Composing a military tribunal is not the equivalent of death squads dishing out violence without trials. Military tribunals are not meant to be constituted for any old offense. They are used for narrow reasons.
There are good reasons there aren’t lawyers assigned along with each squad of infantry. Infantry also aren’t tasked with police-like crime scene evidence gathering every time a ununiformed combatant is captured alive for a good reason. These are more likely reasons there shouldn’t be trials for these instances… IMO.
Regards,
Eric Anondson
You are entirely incorrect.
Under the Conventions, Military tribunals are specifically given the power to make declarations of unlawful combatant status. The generally accepted convention under inrernational law is to sentence such combatants to whatever penalty the tribunal decides is appropriate. In general, such unlawful combatants have been put before firing squads, since participation as an unlawful combatant is a serious violation of the Law of Armed Conflict.
This practice has been the accepted practice for two centuries, and it is unquestionably legal under international law, and the Geneva Conventions. Unlawful combatants have no protected status whatsoever.
Moreover, in the last century, America and Britain have, in fact, done just that with ulawful combatants.
Death squads perform unsactioned, extra-judicial killings. The execution of unlawful combatants who receive due process in the form of a military tribunal, are executed legally as violators of the Law of Armed Conflict.
20th Century totalitarian regimes killed million of their own citizens without any recourse to trials.
So, your quibbles are entirely without basis in either fact, or historical experience.
Quibble 3: It is illegal under international law.
What “international law”? Neat People’s Law? The law the dolphins beamed up to us? What “international law”? Please guide us! Who convenes these courts? Is their jurisdiction local or, what the hell, worldwide? Aceh, but also Quito? And Houston?
Della, could you let us know what the governing body of this “international law” is? Humour us. Just tell us where the boss court is.
I think that it recently moved from Geneva to Brussels…
I’m with Della (though I couldn’t give a toss about “International Law”). I’m against the death-penalty in normal civilian trials principally because I don’t trust the state (or anyone given that power) not to execute people incorrectly. I’m not about to believe the military can do better under fog of war.
Just as with seizing people for Guantanamo, or (more understandably) shooting people in the street if they feel themselves threatened, they are likely at best to act on a precautionary principle, at worst on the instincts and world-view of the unreflective professional killers they are trained to be.
The war on terror is being fought to spread freedom, as well as democracy and extend the rule of law.
However administratively inconvenient it may be, we must be held to the highest standards. I believe that Western civilisation and liberal democracy are morally superior to our enemies’ culture of despotism.
And I want to keep it that way.
Don’t even consider legitimising military-judicial executions. We don’t decide law by shoot-outs, lets not try to make lawyers out of soldiers.
Hey that article not as disagreeable as I initially thought it would be – from the quoted intro I thought it would be an article defending the current torture methods.
My question: What makes an illegal combatant. Can we label anyone fighting against the victors (US) an illegal combatant.
If I had joined the International Brigades fighting for the Spanish republicans vs the Nationalist Fascists in the Spanish Civil war, would I have been labled an illegal combatant.
How is this different to an Egyptian fighting vs the US in Iraq against what he perceives to be a totalitarian invasion.
Quoted by Paul D “The war on terror is being fought to spread freedom, as well as democracy and extend the rule of law.”
Historically it has never been US foreign policy to spread democracy unless this action results in substantial benefits to the US. Hence the US support for many Totalitarian regimes (e.g. Iraq in the 80’s) and the quashing of democratically elected leaders in Guatemala.
Do you consider the Iraqi war to be a turning point in US foreign policy?
Regardless, I hope the forthcoming elections in Iraq are successful.
QUOTE
Moreover, in the last century, America and Britain have, in fact, done just that with ulawful combatants.
Death squads perform unsactioned, extra-judicial killings. The execution of unlawful combatants who receive due process in the form of a military tribunal, are executed legally as violators of the Law of Armed Conflict.
UNQUOTE
Please tell me where I may read about definitions in law, either domestically or ratified as treaties in international law, of ‘unlawful combatant’.
Please tell me where I may read the text of the ‘Law of Armed Conflict’.
This article is the most complete tautological nonsense. Of course one can pass any kind of law one likes, then what is done under such a law will be ‘legal’ but, if the kind of thing being proposed by the article is put into practice, morally bankrupt. I was watching a programme about Auschwitz last night and how the methods used there were developed, apparently originally as a way of liquidating disabled (mentally or physically) children, then as a way of liquidating disabled adults, then to spare the guards the emotional trauma of putting bullets in people’s heads (i.e. your firing squauds). All completely legal under then German law. It is a sad commentary that any of this kind of thing needs to be written after the totalitarian horrors of the 20th century.
Maybe “two captains and a major together as a tribunal” is what you think of as “strict limits”, however by the standards of normal justice it is a shoddly constructed kangaroo court. You’re talking about killing someone here, in Britian you get much better due process for a parking fine.
Since the end of the Cold War, the US has become much less tolerant of totalitarian regimes. The Iraq war a turning point? No, that happened with the end of the Cold War, the Iraq war just made it more obvious.
By several laws past in the ’90s, the US can no longer tolerate certain practices like slavery in allies or trading partners for instance.
Anyways, just shooting prisoners is bad practice too. You want people to surrender, not fight to the death.
Read the various Geneva and Hague Conventions. These are accepted as the laws of war.
It is lawful under the laws and usages of warfare to execute non-uniformed combatants. The general principle is that soldiers wear uniforms and are recognisable as the enemy, but non-uniformed combatants aren’t – and are thus an unnecessary and unpredictable danger. Non-uniformed combatants may be treated as spies, and may as such be executed following the due process of military justice. This is not so much about making war safe, but about protecting non-combatant civil populations.
The conventions were written before the spread of terroristic methods to the scale we see today. A terrorist may be treated as an ordinary criminal, or in time of war may be treated as an illegal combatant. However, and this is the really important point, it is incumbent upon us in the west to afford them the protection of the rule of law.
Some people, I know, object to this and prefer the kill-now-ask-later approach. The Islamist nations wouldn’t do this for us, it is argued, and the terrorists certainly wouldn’t, so why should we?
Why? Well, because we are trying to defend our civilisation, which is based upon the rule of law. If we forget the rule of law in order to defend it, what have we achieved? To put it in blunt terms, we believe that our civilisation is more productive and has more to offer the world, in sum that it is better, than the Islamist theocracy touted as an alternative. If we are to convince people of this, then we must remain true to our principles and not adopt the same arbitrary and brutal code our enemy uses and to which we object so strongly.
It is absolutely NOT necessary to resort to brutalisation in order to prevail. Yes, this happens in the movies, but this is real life and not Hollywood. We will win if we remain dedicated and determined, but only if we also remain decent and honest. If we do not, we have become no better than the enemy, who has in essence won.
As I have said before, if there is evidence against people like this then put it on trial. If there is no evidence, let them go. This is the code of justice we are supposed to live by, and it is what we are allegedly defending in this “war” on terror. Let us then live by it, and not sacrifice it to temporary convenience.
EG
It is of course illegal under international law
Alas, there is no such thing as international law so have can something be illegal under something that does not actually exist?
Might I remind some of you that the US never signed the Geneva Convention.
Well said Euan. You took my comment right out of my mouth.
Then it should never complain about mistreatment meted out to its soldiers by others.
EG
The United States signed the Geneva conventions on the 19th June 1948.
What the great beacon of freedom has not signed are additional Protocols I and II (Protection of victims of international and non international armed conflicts), I guess they just don’t care about that stuff.
My preferred method of dealing with these terror prisoners would be to get two captains and a major together as a tribunal, declare them to be unlawful combatants, and put them in front of a firing squad. Now, maybe, because we’re nice guys, we could let them know that if any of them give us verifiable, useful information, then we’ll commute their sentences, and won’t shoot them. Otherwise, however, it’s a blindfold and a last cigarette for the lot of ’em
Good idea.
Of course we could provide public entertainment by executing in public, in say a handy football stadium.
By charging admission we could contribute to the costs of the war.
…what would be the purpose of the blindfold ? … or would that be for the firing squad to wear to add an element of sport to the whole thing.
Actually, I should have waited, although I stand by the general sentiment I expressed.
A quick Google reveals that the US is in fact a signatory to the Geneva Conventions of 1949, although it has not approved the protocols dealing with anti-colonial and civil wars.
As for the question of international law, this has been addressed here before. There is such a thing, like it or not, and the absence of a system of international courts and an international police service does not in any way detract from this. Just because it doesn’t work the same way as American federal or state law doesn’t mean it doesn’t exist.
A treaty signed by two nations is international law. Unlike a citizen under domestic law, a nation can withdraw from parts of international law by renouncing a treaty or not renewing it after it expires. However, signing a treaty does bind the nation to obey it until such time as it withdraws. The US is signatory to a great many treaties, not least of which are those establishing the United Nations.
Sorry, but this IS international law – it’s different from domestic law, but it still exists.
EG
Shooting US or British citizens who have travelled to Iraq to fight against their own country is one thing. However many of the Guatanamo prisoners were picked up nowhere near a battlefield: some of them were arrested in the USA.
If you’re an Iraqi insurgent caught insurging, to my mind you’re a prisoner of war fighting an enemy occupying force and entitled to the protections properly afforded Prisoners of War (which the Geneva Convention attempts to codify but did not invent). IIRC the Geneva convention recognises the right of an occupied citizenry to take up arms spontaineously without joining a formal army, when faced with an enemy encroachment. That seems right to me, and seems to be close enough to the case for Iraqis that I don’t really care whether a strict legalistic interpretation of the convention applies. The fact that (IMO) such people are on the wrong side, and are my enemy, in no way diminishes this right.
If you’re arrested in the UK or USA you’re nowhere near a battlefield according to any meaningful definition of the word. Such people are entitled to be treated as suspected criminals, and to treat them otherwise puts us all at risk, as previously discussed at length. Indefinite executive detention without a fair trial is not defending our freedom, it is welcoming tyranny with open arms.
I’m not sure how to treat third party nationals captured on the battlefield after the destruction of Saddam’s regime, (the Syrians, the French and the like). But as for anyone British or American who is caught redhanded joining up with the Ba’athists in Iraq, fuck ’em the traitors. On that point at least I can agree with RCD.
Euan, how is it possible to have laws that cannot be enforced?
Given that this is a libertarian website, it seems strange that it should be necessary to point out that international law is a Bad Thing, because for it to be effective, it needs means of enforcing it, and as the only viable means of enforcing ‘internatonal law’, is international bodies, like a ‘World Police’ or ‘Global Government’, we should disapprove, as wider government is more government.
The UN is clearly not capable of enforcing international law currently. If the US in particular wished to break this international law, as it arguably has in Guantanamo, then there is nothing anyone can do about it, sadly.
Steve,
Maybe you’re right, but if you think so just read Euan’s post substituting “proper standards that we ought to expect the USA/UK to uphold” in place of “international law”, and his argument is equally well-founded.
Mary that makes significantly more sense than blithering on about “international law.” No matter how much people protest the latter one exists it clearly does not and I for one hope it never does. The UN and their off-shots have shown us what a bad idea any “world government” organisation would be for all of us.
If you’re an Iraqi insurgent caught insurging, to my mind you’re a prisoner of war fighting an enemy occupying force and entitled to the protections properly afforded Prisoners of War (which the Geneva Convention attempts to codify but did not invent).
Not as defined by the Geneva Conventions. Someone out of uniform, etc. is an illegal combatant, regardless of whether they are a native of the country where the fighting occurs, and regardless of who they are fighting.
IIRC the Geneva convention recognises the right of an occupied citizenry to take up arms spontaineously without joining a formal army, when faced with an enemy encroachment.
I believe that is in the Protocols not signed by the US. Whether it should have signed those protocols or not, or whether it should pretend that it has by complying with them anyway, is a different question.
That seems right to me, and seems to be close enough to the case for Iraqis that I don’t really care whether a strict legalistic interpretation of the convention applies.
But here you run smack into the problems created by pretending that insurgents in an amorphous terror war are POWs. POWs may be held without trial until the war is over, because the end of the war is a definite legal event that sets a limit on their detention and their status as a combatant is not in doubt – indeed, they have declared their status by wearing a uniform.
But in the current war, the status of any given person as an “insurgent” is in doubt, and the end of the war will not be definite event. Trying to treat insurgents as POWs means that you are willing to indefinitely imprison people whose status is not self-declared. Is that really where you want to go?
My company often enters co-operation agreements and such protocols to do business. Such things are not law. Likewise with international treaties and conventions. International Law requires an International State and an International Judiciary to legislate and enforce. It just doesn’t exist.
International laws do not exist, and ‘laws’ of warfare do not exist.
Warfare is a collectivist use of force to protect broad definitions of resources and property. But in most cases it presupposes a State with State interests instead of individuals with individual interests. In an ideal world armies would form from a martial spirit within individuals working in unison temporarily to defend a realitively common group, and does not demand anything more after the successful defense of the constituents. In accomplishing this goal the necessary amount of force necessary to kill and destroy should be employed, and if that means using field ‘courts’ then so be it. The ultimate goal is to end the desire to fight within the enemy, and as long as they has not happened, killing and property destruction should continue. If Warfare is considered necessary in the first place, it should continue to its logical end. If it has to carried out with in eye toward public relations and create half measures, and has tangential martial buy in by the citizenry (i.e. they consume it like any other State program or service), then maybe war should not be engaged in.
When the combatants are removed from the fields of battle and interred for two years, this logic has been destroyed. They have become prisoners. The have become wards to the Statist function. They should either be killed as a combatant on the field, or disposed of shortly if there needs to be an intellectual review of their ‘case’. War’s function is to destroy life and property. Do it and get it over with, or don’t do it at all. Guantanamo’s should never exist in the first place.
Della, could you please answer me and Pete_London? We missed the big news that there is something called “international law”.
I think this misapprehension explains why so many people of a libertarian persuasion manage to convince themselves that there is no such thing.
It does NOT require an international state or judiciary. International law is a more or less voluntary thing, I suppose, since states have a sovereign right to sign or not sign or to withdraw from treaties. Compulsion (and hence the state and courts) is not needed in the same sense as it is within a nation for domestic law, which is not voluntary.
Having said that, there are international courts – such as the International Criminal Court, although the US does not recognise it – and there are supranational organisations such as the WTO which can penalise nations for breaking certain international laws. Nations agree to accept the penalties when they sign up (if they choose to sign up) to the benefits.
Believing that it doesn’t exist because there is no international state or judicial system will not make it go away. Equally, just because America (like most states) only recognises that international law it agrees with does not mean the rest of it doesn’t apply to anyone.
International law is a meaningful concept, even if you don’t like it or don’t wish it to be so.
The idea of a global government as favoured some within the UN is not, IMO, such a good idea, for a variety of reasons. However, the existence of international law does not necessarily mean that global government is coming. It will be a very long time, if ever, before that happens. To assume otherwise suggests you need to buy a new roll of tinfoil for your hat.
EG
In international law, such as the Geneva Conventions is usually defined as a text that is made up meeting between various nations and is ratified by the legislatures of each of these Nations.
What some people here seem to want to do is use a very narrow definition of the word law as if it only meant the texts thought up by local or national legislatures and ratified by those legislatures. They want to do this because they want to ignore certain provisions of international law that prevent them doing things such as torturing people or killing people without trial.
As an anaglogy in Scotland the word “law” in addition to it’s English meanings also means a particular kind of volcanic hill, if one of these “laws” (hills) stradled an international boundry I might say that it was an “international law” (hill), these people would strenuously object and say that the law (hill) sat on one side of the other of the international boundry and was not an international law (hill), and I would accuse them of playing word games.
I agree with most of your articles that I’ve read but
this perspective has me running for cover.
How can the USA demand that foreign kidnappers
treat their citizens any better when
you appear to be so hypocritical. You might say ”
well it’s the norm of the world”. Is the average barbarity of the world a level the USA wants to stoop to? I think strategies for winning the peace aswell as the war are called for.
To be respected you need to have higher
ideals than the
Euan
You are labouring under a misapprehension. The misapprehension whereby you (and Della) confuse voluntarily entered agreements and conventions with law. To enter such an agreement and then break it would cerainly be dishonourable but no law is broken. When one party to an agreement can voluntarily withdraw, that agreement can’t be construed as law.
If a ‘law’ is not backed by force or the threat of force it is not a law. For a law to exist, and punishment or sanction to be administered (fairly) there would have to be an arbiter and an enforcer, neither of which exists (yet). So there is not international law as their is no body to perform the above functions. In fact the term international law is a contradiction in terms. If there is only one body to administer the law there is no inter- anything, it would be intra-.
Essentially then internationalism is anarchic, but it is an anarchy at a certain level only. It is an quasi-anarchic environment made up of a relatively few States (at least in proportion to the number of people on the planet) with a few dozen dominant States at the forefront. Libertarians should be striving to build down these existing States, not legitimizing them by supporting the empty scraps of paper they sign to mediate between themselves for the supposed benefit of their citizens. Such agreements, by and large, benefit those who have access to the signers.
The primary level of States is largely empty and hollow of meaning, and the secondary layer of international agreements they enter into are even more so. To conceive that a protocol entered into by the US or UK governments benefits individuals is nonsense. They have little or no concern for individuals, they think essentially in collectivist terms only. So international ‘law’ is only broadcast agreements of collectivists who are head-butting each other while stroking major players within their own territories to retain power.
Pete,
I really do think that you and the others who consider there ain’t no such thing as international law are engaging in nothing more than semantic hair-splitting.
If there’s no such thing, why for example did the US and UK bother going to the UN and trying to seek some form of legal backing for the invasion of Iraq? Why do they consider the concept of legal sanctions imposed by nations under the authority of the UN to be worth anything, or for that matter enforceable? Why do they sometimes back off under threat of penalty from organisations like the WTO? Why do they desire other states to observe international law, and say so clearly and unambiguously? Why do they ratify documents which declare themselves to be articles of international law? Why do they themselves accept that there is such a thing, even if certain of their citizens don’t? I think you need to accept the reality of international relations.
There is such a thing, and it’s just plain dumb to try and wriggle your way out of any acknowledgement thereof by pleading that law can only exist within a state and since there is no global state there can be no international law. International law doesn’t work on the same basis as domestic law, in that there is no drafting parliament or (with some exceptions) enforcing body. But that doesn’t mean, it REALLY doesn’t mean that there is no such thing.
One can argue that the domestic law within a state is, to an extent, a voluntary compact between the citizens en masse and the state. Magna Carta and the Bill of Rights are the best British examples of this. However, the domestic law applies to all citizens, and individuals cannot declare themselves no longer subject to it, which is not the case for international law. Within pretty broad limits, the state cannot for long impose law without the consent of the people, or at least it needs the majority of the people to not object.
To that extent it can be said to be voluntary, so perhaps there’s no such thing as domestic law either?
EG
How can the USA demand that foreign kidnappers
treat their citizens any better when you appear to be so hypocritical.
Because summary justice, even military justice, is easily distinguished from kidnappers who target civilians, such as aid workers, journalists, and other noncombatants, and butcher them for propaganda purposes (and sexual gratification as well, guessing from the videos I have seen).
The distinctions include:
(a) Summary justice would be directed only at illegal combatants. Anyone known to be a noncombatant would not be subject to it.
(b) Summary justice would be meted out by uniformed, and known, members of the military, according to known standards.
(c) Those meting out summary justice would be accountable to their superiors.
(d) Summary justice as described above is legal under the applicable Geneva Conventions and the “common law” and accepted usages of war.
Euan
The UK and US did not go to the UN the get legal backing for the invasion of Iraq. Blair had to go throught the charade in order to take the Labour Party with him. Its called politics. Left to himself Bush wouldn’t have bothered. If the war in Iraq was against ‘International Law’ then what explains Bush’s statement (from memory) that the ‘US would never need a permission slip to defend itself’? The conventions of the WTO et al commonly allow for penalties to be imposed when a signatory breaks the convention but any nation may withdraw at any time and it is NOT law.
International law doesn’t work on the same basis as domestic law, in that there is no drafting parliament or (with some exceptions) enforcing body. But that doesn’t mean, it REALLY doesn’t mean that there is no such thing.
You’re arguing that a duck is a dog. Law is law.
However, the domestic law applies to all citizens, and individuals cannot declare themselves no longer subject to it, which is not the case for international law.
So how is it law? The law applies to all otherwise it isn’t law.
My neighbour and I have agreed not to park our cars on the patch of grass in front of our homes. Its a voluntary agreement. Either of us can inform the other that we no longer recognise our agreement and it is not law.
RC Dean, forgive me if I am not entirely reassured by the terms under which captives would be summarily executed. I am no bleeding heart liberal, but I find your argument frightening. Even if one disagrees with Euan Gray about the reality of international law, it seems to me that this war in Iraq is in part about trying to establish a society of laws, not of men, as the ancients would have put it. If our armed forces round up a bunch of folk and shoot them on pain of making a confession, then we might as well pack up and go home.
Johnathon, I am not talking about having our troops round up “a bunch of folk” more or less at random. I am talking about what to do with the people that they detain as illegal combatants. Not as sympathizers. Not as supporters. As illegal combatants, actively engaged in live-fire hostilities.
Given the damage being done to our principles by indefinite detention and aggressive interrogation, I think we should treat these illegal combatants (not sympathizers, not supporters, not civilians) the old-fashioned way. With a bullet to the head.
What to do with the symps and supporters is a different question. Their activities strike me, at first blush, as being much better suited to being treated as crimes.
What Pete_London said.
Euan Gray: “I really do think that you and the others who consider there ain’t no such thing as international law are engaging in nothing more than semantic hair-splitting.”
That is what law is all about. Interpretation of semantics. That is why god made lawyers.
Snappy line, but it doesn’t answer any of my questions, does it?
EG
“If our armed forces round up a bunch of folk and shoot them on pain of making a confession, then we might as well pack up and go home.”
“Rounding up a bunch of folk” and capturing illegal combatants in the heat of battle are vastly, and even distinctly, different. We should not blur it for the sake of the discussion.
Almost like the difference between a posse breaking into a house to grab someone alledgedly a criminal and a police SWAT team bashing in a door to resolve a hostage situation. They really are different to most observers.
Regards,
Eric Anondson
If we in the west do not observe the law, if we do not treat terrorist prisoners like human beings, if we do not afford them the same protection under the law as we afford our own citizens, if we deny them the right to trial or to defence or even to see the evidence against them, then WE HAVE LOST.
Why is that people here rail against the iniquities of the over-mighty state which tramples their liberties, but at the same time condone arbitrary arrest, indefinite detention without trial, unnecessary humiliation of prisoners and the denial of any form of due process of law when applied to suspected Islamists?
If this is defence of liberty and the rule of law, then you are on the wrong side.
EG
RC Dean, go and define for me “illegal combatants must consist of”, do so precisely, and in a manner sufficiently watertight that it cannot be reasonably abused.
I think you are going to struggle to do this without tying yourself in knots. Sorry but I think that by contemplating what you refer to, Coalition Forces would be crossing a line so serious that one of the original purposes of deposing Saddam’s vile regime, namely, spreading the rule of law, would be lost.
Robert,
I think you’re out of sync with modern thinking in the Pentagon. Modern thinking calls for Death Squads to kill and kidnap alleged insurgents and their sympathisers (aka inconvenient civilians).
So lets see, the goverment having indefinate detention without trial is bad but executing people without a trial is good? Will you charge the cost of the bullet to their families?
I personally think that it will be proposed that there should be created work camps with indefinate or long detention with limited rations in a remote place. It happened before this the slave labour camps of the Nazis and the slave labour camps of Stalin, and the slave labour camps of Pol Pot, and the slave labour camps of Mao, and the slave labour camps of the two Kims. It’s simply the logical track down which the administration is headed. Slavery is hardly un-American after all, it was a key principles of the founders.
Della: let us hope that never ever happens.
Euan: I would echo toolkien – without a world police (and thus a world state), there can be no international law as such. Your questions at 4.56pm can be answered easily without the answer being ‘international law’, and the answer is (perceived) political utility – as I suspect you know very well. However, I think there is a moral obligation for us (US/UK) to practice what we preach and so I do agree with the thrust of your real argument.
Does this mean that the members of the French Resistance in WW2 would today be considered “terrorists” or “illegal combatants”?
Mussels (possibly on holiday from Brussels) asks:
“Does this mean that the members of the French Resistance in WW2 would today be considered “terrorists” or “illegal combatants”?”
Perhaps more to the point, does this mean you are comparing the pre-war French government with Saddam Hussein’s?
I realise that “yoof” has been indoctrinated into the belief that there is no “right” and “wrong” – but people who can think usually outgrow that sort of Gramscian childishness.
Johnathan Pearce;
I’m not RC Dean (‘tho I also live in Texas), but a quick Google of the search string “1949 Geneva Conventions illegal combatants” lead to:
http://www.aimlesswords.com/archives/20040517/the_geneva_conventions/
which offered a plethora of links to the various Geneva Conventions as well as the Laws of Land Warfare and other related topics. The section specifically dealing with the 3rd Geneva Convention (that of 1949) has a link to a Wikipedia entry detailing the prescribed definition of a “lawful combatant”:
http://en.wikipedia.org/wiki/Lawful_combatant
Is that sufficiently specific for the terms of your challenge Sir? I submit that all of the incarcerated from Iraq and Afghanistan fail on at least one of the four stipulated requirements and thus could quite legally be tried by a military tribunal (the apocraphal “two Captains and a Major”) and, if found guilty, be executed. IIRC the US stipulates hanging and not a firing squad though. Personally, I suspect the US will simply continue to deny the existence of the Gordian Knot until the newly empowered Afghan and Iraqi governments ask for their (insert your preferred diplomatic euphemicism here) for trial in their respective courts, at which time this will become the plan all along, don’t you know?
On a more general note, the US constitution specifically declares that all duly enacted international treaties will have the force of law within the US justice system so arguments over the lack of international courts/police seem rather pointless. Remember Manuel Norriega? This was the very justification for the US invading Panama so he could be tried in a US court since he rather short-sightedly never repudiated the pre-existing treaties between those two countries. I have no knowledge of how this matter is regarded under UK law, perhaps those more knowledgable will chime in.
I decline to comment on Della’s obvious Trolling but don’t wish to seem sexist by outright ignoring her.
Sorry about the link screw-up, hopefully I’ll do a better job of it next time.
Blah- War is hell. You do what you have to do in order to win. If Osama Bin Laden wants to sign onto the Geneva Convention, let him. But until that happens, fuggedaboudit. The object of war is to kill people and break things until one side can’t take it any more. It is not patty cake.
This simply is not true. If people for this reason refuse to accept that international law exists despite the fact that politicians, parliaments, diplomats, states, corporations and militaries are all perfectly cognisant of the fact that it DOES exist and act accordingly even to the extent of describing it as international law, there is obviously no point in trying to discuss the implications.
Closing your eyes to reality will not make it go away, and the reality is that international law does actually exist. The people who have to deal with these issues in practice (as opposed to armchair theory) recognise it, so why won’t you?
Just because something can be done does not mean it should be done.
Dispensing summary military justice to terrorists and executing them, whilst it may be legal, will produce exactly the attitude we are trying to change – namely that the west is an unthinking, unfeeling and inconsiderate hegemon. “We were right,” the Islamists will say, “see how they kill our brothers for daring to oppose them? Now will you join us and fight against the infidel?” And yes, people will join. Such a call for summary justice utterly fails to appreciate the political reality of the the tension between western civilisation and militant Islam. All you would do is prove your enemy right, and I assume you really don’t want to do this.
Dispensing summary justice and execution may be legal, but it would be a monumentally and cretinously stupid thing to do, quite apart from being morally repugnant and counter to everything we in the west allegedly stand for.
EG
Euan Gray: “Dispensing summary justice and execution may be legal, but it would be a monumentally and cretinously stupid thing to do, quite apart from being morally repugnant and counter to everything we in the west allegedly stand for.”
So, no change in US policy since 9/11 there, then.
Keep going, guys. There may be a few people left in the rest of the world that America hasn’t alienated yet. But who needs friends when you’ve got Shock ‘n’ Awe (TM)?
The more one reads bloodthirsty blustering from deskbound kids like this, the more reassured one is in the assumption that America has already lost in Iraq, and will be out of it by 2006. Orwell’s comment on Auden’s “Spain” comes to mind.
This is starting to make my head hurt … I actually agree with Euan.
There are no circumstances where torture should be used … ever.
And executing all prisoners will only make each soldier into his own little kamikaze or Alamo. The Waffin-SS did the same during the Battle of the Bulge … and after word got out about that atrocity, the US defences at places like Bastogne suddenly stiffened up.
Idiots … at least current US military policy now recognizes this ( after getting caught being stupid earlier… ).
Luniversal – Yeah, whatever. America won’t lose in Iraq because it simply can’t afford to.
Not at all. Are you? If so, why?
imsufferingfor my art: “Luniversal – Yeah, whatever. America won’t lose in Iraq because it simply can’t afford to.”
Ah, I see: the way it couldn’t afford to lose in North Korea, Cuba, South Vietnam, the Lebanon or Somalia.
Luniversal – examine the economic imperative in Iraq; compare it with the cold war imperatives in most (and certainly the most definitive) of the theatres you mentioned, then get back to me.
There are no circumstances where torture should be used … ever.
Depending on your definition of torture, I agree.
And executing all prisoners will only make each soldier into his own little kamikaze or Alamo.
Do you people have some kind of reading deficiency? How many times do I have to say I support summary trial and execution for ILLEGAL COMBATANTS. Which is not the same as all prisoners. This is the same standard that has been applied historically without turning every soldier into his own little kamikaze or Alamo or whatever.
The Waffin-SS did the same during the Battle of the Bulge …
No, they did not. They executed uniformed soldiers, not illegal combatants.
and after word got out about that atrocity, the US defences at places like Bastogne suddenly stiffened up.
As opposed to what we saw in Fallujah?
I understand the distinction you are making perfectly well, but I still say it is a stupid and counter-productive course upon which to embark.
When you are dealing with a terrorist enemy, it is extremely difficult to inflict a lasting military defeat since you are not up against a formal army organised by a defined state, both of which can surrender and there’s an end to the quarrel. There is NO Republic of Islamism to bring to terms, no formal Army of Islamism to surrender the field. There are instead a number of disparate organisations with their own agenda and their own often highly specific sets of grievances.
Were it a true war, America would win both quickly and convincingly. However, in this case it is necessary not to bomb a state into submission but to persuade hundreds of thousands, if not millions, of people that you mean well. This will NOT be done by executing prisoners, however legally justifiable it may be and however illegal their actions may have been. Even if it could be done, it would still be objectionable because it would be a betrayal of the civilised rules of conduct we are apparently defending.
America is widely perceived as an arrogant global hegemon, and it is undoubtedly fact that the idea of liberal capitalist democracy is by no means as universally approved or even as contagious as many Americans might like to think. In many parts of the world, America and what America stands for is hated, with a passion that would probably surprise the average American who has never left his own country. In particular, the ideas of sexual equality, freedom of expression and a more materialistic world-view are anathema in many deeply conservative Moslem cultures. Given this, it is absolutely necessary for America to win hearts and minds, not just drop bombs and execute illegal combatants.
The American military command frankly and openly recognises that America has never been the slightest bit competent at this, and have often expressed admiration for the British (and in the case of Iraq, Australian) skill and experience in the matter. They know that it is not a good idea to go around bumping off illegal combatants, however good and idea the politicians and armchair generals may think it.
EG
On stiffening enemy resistance:
Whatever the Waffen SS did or did not do in the Ardennes, it should be common sense to even the meanest intellect that putting your enemy in the position where he has nothing to lose will only increase his resolve. This is a completely different issue from persuading him that his whole side will lose the war – you are now talking to him as an individual, not to his army.
Staying in Europe, it might be recalled that one of the major reasons why the Russian counter-attack against Germany from 1942 onwards was successful was that the Russian soldier had little to lose. If he was captured by the Germans, he would probably be shot as a Slavic sub-human. If he ran away, he would be intercepted by the NKVD “special” units stationed behind Russian lines and … shot. So for him, he might as well stand and fight. It has been speculated several times that had Germany treated the Russians as human beings equal to themselves, the eastern war would have ended in Soviet surrender before the end of 1942.
If the Islamist terrorist understands that capture by the west means detention, trial, imprisonment and eventually freedom, he may think twice before giving his life. If he thinks that capture will inevitably result in his death, he might just as well strap the dynamite to his belly and go for a walk towards us. You should never put your enemy in any position where he has nothing to lose – this only makes him more dangerous.
This alone will not end the problem, but failing to do it will only make the problem ever more intractable. We have to spend billions and send men to their deaths, so it seems logical to try and minimise this need, don’t you think?
EG
R C Dean supports summary justice for illegal combatants. This begs the question, how do we know they are illegal combatants in the first place? Clearly many defendants will deny they are combatants at all, let alone illegal ones. Wouldn’t we require due process to determine their status? Summary justice can only really be justified when it is simply not possible to use due process, such as on a battlefield, or during a serious civil uprising or major emergency which has led to a long-lasting breakdown of law and order. Current terror suspects are clearly not in a situation where it is impossible to give them due process. We are not going to have another 9/11 just because some hapless Afghani is allowed a defence lawyer and the right to hear the charges against them. Therefore there is no moral justification for denying them their right to a fair trial.
One should note that many people have already been freed from Guantanamo Bay. Thus the US authorities are admitting that they violated the rights of innocent people – kidnapping, torturing, and imprisoning them, denying them anything other than a kangaroo court, and generally making a mockery of justice. This is a criminal offence, for which the US officials responsible, up to an including the president, should be tried and sent to jail for.
Also, I wish people would stop citing precedent and authority to support their case – past decisions and convention are utterly irrelevent in deciding questions of morality. In 1800 there was countless precedent, convention, law and authority on the side of slavery, but this had no bearing whatsoever on whether slavery was right or wrong. Equally, the mere fact of being an “illegal” combatant does not constitute an immoral act in any way whatsoever. Remember, the “legality” of a combatant is decided entirely by a small collection of violent and oppressive nation states that collectively have slaughtered hundreds of millions of people. The “law” in this case is hardly some objective standard of moral conduct, but rather a set of rules hashed out under the amoral “principles” of realpolitik and international diplomacy. The idea that this is some kind of moral standard which one ought to obey, when most of the nations who decided it were run by bloodthirsty tyrants, is so laughable as to not even be worth considering. Shame on anyone using this argument – the justification for tyrants and dictators throughout history. Many legitimate warriors in resistance movements have fought without uniforms. One should also note that a uniform, by definition, increases the chance of being detected and thus killed. Why should there be a moral obligation to voluntarily increase the ease with which your mortal foe can find and kill you?
The fact is, anyone who took the “line them up and shoot them” position has admitted that they were quite prepared to cold bloodedly murder large numbers of people that even the Bush administration has now decided were not guilty of the charges brought against them, to the extent that those suspects have now been released – and to do so without even a semblance of due process. I would merely advocate the application of the Golden Rule to such people – are you prepared to be hauled off and placed in front of a firing squad, without any trial or due process, with no one to defend you, no possibility of appeal, not even knowing the charges or evidence brought against you, and with no opportunity to explain yourself or rebut the government’s case? My strong suspicion is that the gung ho squad would scream blue murder if one of their friends or relatives were treated in such a fashion, yet they are all to happy to dish out such treatment to people whose only crime was to be of the wrong skin colour, nationality, or religious belief.
“Luniversal – examine the economic imperative in Iraq; compare it with the cold war imperatives in most (and certainly the most definitive) of the theatres you mentioned, then get back to me.”
Any government will sell any other government oil, and within 50 years we won’t be crucially dependent on fossil fuels anyway, so that dog won’t hunt.
The appetite for international crusading has declined sharply in the States since the 1960s. America took nearly 60,000 fatalities in Vietnam. It’ll be out of Iraq before the 2,000 total is hit.
The public will no longer tolerate major losses, and the merest hint of a draft makes politicians shriek their promises not to impose one. But without a draft the US military presence in Iraq is unsustainable. Minior mutinies are already breaking out, and discussions about how and when to withdraw are beginning within the GOP.
Well, not really.
The laws of war are meant to ensure that when war is resorted to it is conducted in a manner which results in the least possible unnecessary brutality. The provisions about non-uniformed combatants are principally intended to protect the non-combatant civil population. This should be obvious enough:
If your enemy wears a uniform, you know who he is and you can be sure that if you kill him your are killing someone who is a formal participant in the war and accepts the risks. If he does NOT wear a uniform, then you have to satisfy yourself that he is actually fighting you and that he is not just an innocent civilian bystander who happened to be in the wrong place at the wrong time. This is what makes it so frightfully difficult to deal with a terrorist enemy – you don’t know who is the enemy and who is the innocent bystander.
In order, therefore, to ensure that innocent bystanders aren’t slaughtered en masse, the rules are for very good and sensible reasons pretty strict about the wearing of recognisable uniforms and about who is and is not a lawful combatant.
The alternative is a free for all where each side simply slaughters anyone who appears to belong to the opposite side, whether civil or military. This is generally accepted as being a Bad Thing, although it would appear that several commenters here would approve. Hopefully they will not find themselves having to deal with the practical consequences of their ideas.
Perhaps this would apply to the red-coated soldiers of the 18th and 19th centuries, but not exactly to the DPM-clad modern soldier whose uniform is designed to make it hard to spot him – but once spotted, it is obvious what he is.
I mentioned this before in connection with the Law Lords’ ruling on the Belmarsh detainees. Whatever the rights and wrongs of the present military campaigns, I find it nauseating that people who allegedly support liberty and individual rights are quite happy to condone the arbitrary arrest and execution of people who happen to have a dusky hue to their skins or don’t happen to altogether approve of the American Way of Life.
I am a conservative, not a libertarian, and yet here I am defending the liberties of people against the profoundly illiberal ideas of supposed libertarians.
It would appear that the state is not your friend when it requires you to pay tax, but it is your best buddy when it’s bashing people you don’t like. There’s a word for this – it starts with “h” and ends in “ypocrisy.”
I think America has reached or passed the point of strategic overstretch. Judging by the actions of the US government in trying to reorganise and prioritise their vast overseas obligations and at the same time reform their military structure and doctrines, this view appears to be held by a number of people in Washington too.
EG
Cobden Bright – Hear, hear.
Euan – I agree that using uniforms will usually help reduce accidental civilian casualties. However, it should be equally obvious that in many cases, using uniforms will ensure defeat. The rules of law permit doing things that can result in higher civilian casualties, if this is necessary to stave off defeat. For example, strategic bombing, landmines, use of area-effect weapons, sieges, cutting supplies etc are all perfectly legal and acceptable in warfare, yet they all directly cause massively more collateral civilian casualties than not wearing uniforms. Failing to wear uniforms does not directly kill or injure anyone, so I don’t see how it can be worse than the legal actions described above.
You are assuming that just because an activity may have harmful consequences, that this makes it morally wrong, and thus it becomes legitimate to punish it (in this case by death). But the morality of an action is never judged purely on its harmful consequences – other things to be considered are the positive consequences, the intent behind the action, and the extent to which the rights of innocent people are infringed. War itself is cleary an action with huge negative consequences, yet the very existence of laws of warfare proves that war is considered to be morally justifiable in some circumstances. This is because sometimes the positive consequences outweigh the bad, and the intent behind it is good (e.g. WWII on the allied side). Since acitons with negative consequences can be morally justifiable, and sometimes even morally obligatory, citing some negative consequences is insufficient to support your position
Legitimate resistance movements, such as those opposing the Nazis in WWII, often did not wear uniforms, out of fear for their own survival. Were they war criminals for doing so? I’ve not heard anyone advance that view. The use of uniforms is simply not a black and white issue. There are arguments in favour and against it – and the greater the disparity of force, and the more righteous the cause of the outgunned forces, the more justification there is for not wearing uniforms.
Finally, I would point out that if one subscribes to the utilitarian view of morality, as you (and most non-libertarians) appear to do, then *any* action is potentially justifiable if it results in sufficiently beneficial consequences. Thus one can never rule out guerilla tactics like wearing civilian clothes, if this were to promote a sufficiently desireable end – such as ensuring national survival against an oppressive foe. Thus the laws of war are inherently inconsistent and self-contradictory even on their own utilitarian terms. Does anyone doubt that every nation on earth would ditch the Geneva Conventions in a heartbeat if it was viewed as necessary for national survival?
Of course, just as the uniform wearing Allies were defeated by Germany in 1945…
The laws of war are intended to apply to organised armies fighting one another. Terrorists, freedom fighters, militants or resistance fighters (all terms can be applied to the same person, depending on your point of view) obviously cannot be expected to be able to do the same things as ‘proper’ armies & so the it is hard to see how the same rules could apply in the same way. One expects the terrorist/insurgent/resistance fighter not to wear a uniform, and indeed this is an advantage the terrorist has – but it is precisely what makes it very difficult to discriminate between fighter an bystander.
Hmm, not really. The Allied carpet-bombing of several German cities in WW2 was a war crime by any standard – the intentional large scale slaughter of innocent civilians, not aimed at any military target. However, the Allies won so none of them got put on trial. Victor’s justice, I suppose, but it was ever thus.
But indirectly it does. Non-combatants are likely to be killed by the opposing side, since they will not want to take a chance – is that guy with the bag carrying plumbing tools or a bomb? This happens, and it is one of the major problems with fighting a terrorist enemy. Hence the rule. I wonder if you would say the same thing if your son was not a soldier or fighting in any way but was killed by the enemy because he “thought” the boy “might” be a soldier not wearing a uniform. Think about it.
The end justifies the means, is what you’re saying. I disagree.
So who decides whether they are legitimate or not? The laws of war do not attempt to say whose quarrel is legitimate or who is right & wrong. What they are intended to do is law down some rules for the process of settling the question such that civilian casualties (‘collateral damage’ to use the American euphemism) are minimised.
Again, who decides which side is more ‘righteous’? In the current war, the west thinks it is more righteous. On the other hand, the Islamists think they are more righteous. Who decides? On what grounds?
I would say the morality you have expressed (ends justifying means, and so on) is rather more utilitarian, and unpleasantly so, than mine.
EG
Hey guys! My name is Jayvee. 19 years old. And a FIlipino. Can you guys help me?
I am in my 3rd year in college, taking up Communication Arts. This semester, I’m enrolled in the subject CA9, Theories of Video Production. As course requirement, I am required to do an investigative video documentary. Now, my topic is “summary executions in davao city”. Davao City is a southern city here in the philippines.
What i need from you guys are arguments. Arguments in favor/against summary executions. And FAQs on the topic. I really need them. On or before Feb. 16.. Hope you guys can help me.
Thanks.
Jayvee