Should the United States have the right to execute War on Terrorism POW's?

[DanS]

Interesting article in today's Post that touches on these issues as it relates to the Guantanamo facilities...

http://www.washingtonpost.com/wp-dyn/articles/A16565-2002Jan8.html

[MichaeltheGreat]

Mike:

"Yes, the Geneva convention specifically distinguishes spies, saboteurs and mercenaries from combatants entitled to protection and POW status under the convention.... the limits to a mercenary's rights are that the embassy of the mercenary's home country be notified of his fate."

AFAIK the combatant status of mercenaries is a disputed matter*, and not automatically related to the ban on using mercenaries. Also I doubt that Al Queda guys meet the definition of mercenaries, which is usually related to material gain.

* For a serious argument, I'd have to read up A. Cassese, "Mercenaries : Lawful Combatants or War Criminals ?", Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1980, pp. 1-30. I don't think the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries changed anything significant there.

The last mercenary cases I remember involving the US or US citizens were Eugene Hasenfuss in Nicaragua in 1984 (CIA covert operative, not acknowledged as such by the US, which took the standard position that this guy acted on his own) who was sentenced to 30 years by the Sandinista government for attempting to fly a planeload of military supplies to the Contras, and back in 1979, some sad sack who was a mercenary fighting with the predecessor to UNITA in Angola, captured when the commie thugs took over most of the country from the other commie thugs and the right-wing South African and US supported thugs.

He was shot, and the official US position was that "we'd appreciate it as a favor if you didn't do that, but it's up to you"

As far as al Qaeda members being classified as Mercs goes, it seems a bit strange to hinge it on compensation - they certainly are paid fighters, so would there be an issue hinging on whether they were smart enough to get paid well? And half the thing about being a merc is the sheer fun of it, not the pay.

Tingkai - I have a few leftist friends (*shock* *gasp* ain't that a surprise? ) here and further south. Che Guevara is slightly fashionable among the spoiled university leftist crowd, who are mostly fashionable leftists (i.e. lets have the occasional fun demonstration, take over and trash the uni before we graduate, but not really risk our lives or dedicate ourselves seriously to a cause), but leftist (even far left dedicated communists) politicians and such never refer to him, the working class left never pays attention to him - here, the figure who drew a lot of attention until recently was Subcommandante Marcos, leader of the EZLN. There's a lot of pragmatic reasons - Marcos is alive, and an effective leader, Guevara is dead, and simply got lucky in Cuba, while having no chance to do anything in the Congo, and ****ing up badly in Bolivia. There's also a sense of mystery about Marcos - who is he really? Everyone knows Guevara's just plain dead.

Nowadays though, nobody pays attention to Marcos after the "Zapatour" last year - he and the government essentially made a deal to ignore each other and each do their own thing, and there's just not much going on. Marcos was popular outside the EZLN because he was sticking it to the corrupt PRI governments that had plundered México and rigged elections for 71 years, but once the PRI got thrown out of control in legitimate elections, the one universal charm that Marcos had (effective thorn in the PRI's side) became irrelevant.

Most of the working class and rural poor in Latinamerica are decidedly unrevolutionary - what they want is almost wholely middle class in nature, and something like European Social Democrat parties in implementation. For every Guevara you can conjure up, everyone can also recall some armed right wing type, and people really just want steady work, decent schools for their kids and health care and a little better standard of living.

[Roland]

"The last mercenary cases I remember involving the US or US citizens were Eugene Hasenfuss in Nicaragua in 1984 (CIA covert operative, not acknowledged as such by the US, which took the standard position that this guy acted on his own)"

The contras were quite questionable as combatants, and an individual in covert operations (did the plane have the insignia of a combatant?), and Sandinista state practice ? I don't think that's getting us very far.

"As far as al Qaeda members being classified as Mercs goes, it seems a bit strange to hinge it on compensation - they certainly are paid fighters, so would there be an issue hinging on whether they were smart enough to get paid well?"

US soldiers are not paid for being fighters ?

"And half the thing about being a merc is the sheer fun of it, not the pay."

Seems inetrnational law focusses on the motive of material gain. Fun soldiers and jihadis are not necessarily mercenaries.

[MichaeltheGreat]

Originally posted by Roland
"The last mercenary cases I remember involving the US or US citizens were Eugene Hasenfuss in Nicaragua in 1984 (CIA covert operative, not acknowledged as such by the US, which took the standard position that this guy acted on his own)"

The contras were quite questionable as combatants, and an individual in covert operations (did the plane have the insignia of a combatant?), and Sandinista state practice ? I don't think that's getting us very far.

How so? Seems international law has a rather different set of definitions than the real world. I had no idea it was so similar to economics.

BTW, the plane was privately owned, had no insignia, and the United States denied any connection to Hasenfuss, the plane, the cargo, or the two crewmen killed in the shootdown.

"As far as al Qaeda members being classified as Mercs goes, it seems a bit strange to hinge it on compensation - they certainly are paid fighters, so would there be an issue hinging on whether they were smart enough to get paid well?"

US soldiers are not paid for being fighters ?

US soldiers are authorized and under orders by their commander-in-chief, the President, and are fighting as official instruments of US policy. Al Qaeda members are there with no official connection to their national government or policies.

"And half the thing about being a merc is the sheer fun of it, not the pay."

Seems inetrnational law focusses on the motive of material gain. Fun soldiers and jihadis are not necessarily mercenaries.

So in other words, only white Europeans or Americans can be mercenaries - everyone else is assumed to have nobler motivations that entitle them to POW status?

Taking the good ol' Congo in 1965 as an example, "Mad Mike" Hoare and his bunch are mercs, but Guevara and his bunch would be POWs, as would Mulele and the Simbas? Doesn't make much sense.

[Roland]

"Seems international law has a rather different set of definitions than the real world."

That's why relations between law and the realworld depend on translators, commonly called "lawyers".

"BTW, the plane was privately owned, had no insignia, and the United States denied any connection to Hasenfuss, the plane, the cargo, or the two crewmen killed in the shootdown."

So where would be a point supporting his combatant status ? Looks obvious that he wasn't one.

"Al Qaeda members are there with no official connection to their national government or policies."

Irrelevant. The national government were the Taliban, recognition of that government is irrelevant, too. Even if they are only a military organisation fighting openly in a domestic war, the humanitarian rules of war apply.

Or would you say that the Taliban awarding them Afghani citizenship would have instantly turned them into legitimate combatants ?

"So in other words, only white Europeans or Americans can be mercenaries - everyone else is assumed to have nobler motivations that entitle them to POW status?"

As said I'm not sure whether "mercenaries" under whatever definition are actually excluded at all. So a sense-making (whatever that is, it is a bit subjective) result might be that even the for-gain mercenaries would be POWs. I think for example members of the french foreign legion were usually considered POWs, were they not ?

Guevara - would depend on the situation. Combatant or not ? Was David Koresh and followship a combatant party ?

[MichaeltheGreat]

Originally posted by Roland
"Seems international law has a rather different set of definitions than the real world."

That's why relations between law and the realworld depend on translators, commonly called "lawyers".

The less of them, the better for the rest of us. Are they covered under the Geneva convention?

"BTW, the plane was privately owned, had no insignia, and the United States denied any connection to Hasenfuss, the plane, the cargo, or the two crewmen killed in the shootdown."

So where would be a point supporting his combatant status ? Looks obvious that he wasn't one.

No more or no less than any military transport pilot flying arms and supplies to combatant forces in the field. The plane they were flying, a C-123 Provider, is a standard counter-insurgency, covert ops type plane that used to be used in the US military (obselete at the time Hasenfuss was downed) to resupply SOF missions - they had arms and ammo palleted with cargo parachutes, and were flying regular supply missions to the Contras. Something UPS and FedEx typically avoid.

"Al Qaeda members are there with no official connection to their national government or policies."

Irrelevant. The national government were the Taliban, recognition of that government is irrelevant, too. Even if they are only a military organisation fighting openly in a domestic war, the humanitarian rules of war apply.

Or would you say that the Taliban awarding them Afghani citizenship would have instantly turned them into legitimate combatants?

So what are the substantive differences between them and mercenaries? Mercs usually fight for a "legitimate" combatant government too.

"So in other words, only white Europeans or Americans can be mercenaries - everyone else is assumed to have nobler motivations that entitle them to POW status?"

As said I'm not sure whether "mercenaries" under whatever definition are actually excluded at all. So a sense-making (whatever that is, it is a bit subjective) result might be that even the for-gain mercenaries would be POWs. I think for example members of the french foreign legion were usually considered POWs, were they not ?

The FFL are regular armed forces, in uniform and under proper command, of a Geneva Convention signatory. Quite a different situation than an autonomous command.

Here's the actual language of Article 4 of the convention:

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

I don't see room for al Qaeda in there - they don't fit into any of the categories.

Guevara - would depend on the situation. Combatant or not ? Was David Koresh and followship a combatant party ?

Guevara IMO would clearly not be covered - in all cases, he was a foreigner, out of any recognizable uniform, not respecting the laws and customs of war (execution of captured wounded and prisoners, etc.)

Koresh was a domestic criminal with enough guns to be a small third world military force (no mountain navy though, it's pretty dry and flat country there ), but having a bunch of guns doesn't make a legitimate military force.

[Roland]

"Are they covered under the Geneva convention?"

As an atrocity ?

"No more or no less than any military transport pilot flying arms and supplies to combatant forces in the field."

Those would fly planes with insignia, and the pilots would be integrated into a military command structure. "Covert ops" may be a problem here. Don't know how crucial the insignia issue is for air warfare rules.

"So what are the substantive differences between them and mercenaries? Mercs usually fight for a "legitimate" combatant government too."

Let me ask from the other side: What is the crucial difference from normal combatants in your view ?

"The FFL are regular armed forces, in uniform
and under proper command"

Militarily organised Al Qaeda groups in Afghanistan should meet that. Al Qaeda terrorists sitting in Afghanistan as restroom not.

"of a Geneva Convention signatory"

The rules of war have made their way into customary law, and been extended (IIRC by a convention) to even domestic armed conflicts. So recognised state, signatory etc do not matter.

"an autonomous command"

The command structure... on what do you base special requirements for this ? Taliban and Qaeda forces were fighting alongside in Afghanistan... either the latter were subject to the former, or formed a biligerent party of their own.

Whether and where you put them in the categories of combatants depends on their organisation etc.

"Guevara IMO would clearly not be covered - in all cases, he was a foreigner"

Why is the citizenship important ?

"Koresh was a domestic criminal with enough guns to be a small third world military force, but having a bunch of guns doesn't make a legitimate military force."

Right. On the other hand, an organised force that exercises territorial control, eliminating heteronomous police powers, exercising state functions...

[DinoDoc]

Here's an interesting article I found: Status of Detainees in International Armed Conflict, and their Protection in the Course of Criminal Proceedings

I hope that it is at least relevent to the current discussion going on.

[Roland]

Originally posted by DinoDoc
Here's an interesting article I found: Status of Detainees in International Armed Conflict, and their Protection in the Course of Criminal Proceedings

I hope that it is at least relevent to the current discussion going on.

Excellent.

Must be quite fresh. First, couple days ago I looked at ASIL for such a summary but couldn't find one. Second, no objections/add-ons yet...