Talk:Unlawful combatant/Archive 4

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See Archive 2 for the history of talk page before this time stamp Philip Baird Shearer 16:44, 15 Jun 2005 (UTC)

Page 3

(Part II) Now regarding fundementalist crazies. Yes, they are deluded by religion, hence therefore we must treat them as children. We must in essence, create conservators or guardianships, administrated by secular rulers in cahoots with the Western forces of Dar al Harb because they are incapable of making decisions for themselves. We can speak lofty of human rights, but in this particular case, we adjudge them as being incapable of negotiating and playing by the same rules as the civilized world does. Their refusal to abide by the Laws of Civilized Nations ( as referenced in the Nuremberg War Crimes Tribunal, renders them "uncivilized", and we can only pretend their alliegence to Islam is not what it is). This creates a politically incorrect problem for International Law, cause the true interpreation of Islam appears "uncivilized", under our own Western dictatated definitions of International Law. They are at war with the enemies of God. The United States Constitution, the United Nations Charter, and the Geneva Convention, are all blasphemous against Allah, presupposing that man can take Allah's place. They seek to destroy all these infidel insitutions and replace it with Shar'ia (the way, or path). We, in our arrogance, deem them unfit to exercise their own God-given rights, because of course, we are enemies of Allah. Hence we seek to impose the Geneva Convention upon them, an institution they themselves are at war with. (Save all the arguements about how we really seek to impose its restraints upon ourselves til later, irregardless of whether these legally incapacitated children agree or not). The problem is, we are not dealing with children here. These persons know and understand full well the issues involved, and better, I might say, than the average Western does. They may even interpret enforcement of the Geneva Convention on them as violation of their rights, cause it once again imposes a system of Western hegemony (i.e., the encrouchment of the forces of Dar al Harb within the historical lands of Dar al Salam) upon them. (end Part II) Nobs01 17:18, 15 Jun 2005 (UTC)

This is not a forum. I suggest trying www.blogger.com --Ben 00:28, 21 Jun 2005 (UTC)

Confusion

• Unlawful combatants may retain rights under the Fourth Geneva Convention in that they must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".
• However as the United States' courts have not yet ruled that any of the detainees have faced a "competent military tribunal", this phrase is not a legal description of the detainees' status.

These sentences in the opening of article seem contradictory, but it may be that I am misreading them, can someone give a clarification, or possibly reword it. Where does the idea that they must face a "competent military tribunal" before they are labeled come from? Can we get a reference or a link there? -bro 172.172.94.62 05:13, 16 Jun 2005 (UTC)

You were right, it needed clarification, so I have added Art 5 GCIII. I do not think there is a need for a reference as the process and the refernces are provided in the main body of the article. Philip Baird Shearer 08:06, 16 Jun 2005 (UTC)

• It is likely that if they have been found to be "unlawful combatant" by "a competent tribunal" under GCIII Article 5

This is another reference to the "competent tribunal", and it seems to reference it coming from GCIII article 5, which is quoted (I assume in full) above it, and my tired eyes do not see this wording, or even idea in that article. Anyone else wanna take a look? By the by, thanks philip, much better. -bro 172.149.165.234 02:57, 19 Jun 2005 (UTC)

Ahh, I see, its in reference to "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." earlier in the article. It still seems to me that it is not neccessary for a "comptent tribunal" to rule on a person for them to become an "unlawful combatant", only "Should any doubt arise". Perhaps its not unclear, but it seems to be saying that every one must face this tribunal before being deemed an unlawful combatant. -bro 172.149.165.234 03:04, 19 Jun 2005 (UTC)

The American Supreme Court seems to think that this is true. From the article "On July 7, 2004, In response to the Supreme Court ruling, the Pentagon announced that cases would be reviewed by military tribunals, in compliance with Article 5 of the Third Geneva Convention." Philip Baird Shearer 09:59, 21 Jun 2005 (UTC)

I guess we can assume then that the supreme court provided this 'doubt'. I'm not all too familiar with that particular ruling, I'll try to give it a read over, or perhaps someone who has already might be able to shine a light on it. The wording of article 5 itself doesn't lend itself to the idea that they must face a tribunal to be classified as an unlawful combatant, but I've certainly seen stranger rulings. Regards. -bro 172.164.13.81 10:26, 23 Jun 2005 (UTC)

Clarity

From history ( 17:24, 26 Jun 2005 GPS Pilot):

One paragraph says the term is not clear or well understood; the following paragraph gives a clear, definitive definition. Can't have it both ways.

I am confused, the following paragraph to the one which you (GPS Pilot) altered by removing "So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not." is:

The Geneva Convention relative to the Treatment of Prisoners of War, 12 August (1949) (GCIII) of 1949 defines the requirements for a captive to be eligible for treatment as a prisoner of war (POW). A lawful combatant is a person who commits belligerent acts but if captured, would be a considered POW. An unlawful combatant is someone who commits belligerent acts, but does not qualify under GCIII Articles 4 and 5."

Which does not seem to me to give a clear "definitive definition" of the term "unlawful combatant". So which paragraph if any is GPS Pilot referring to? -- Philip Baird Shearer 18:15, 26 Jun 2005 (UTC)

I considered the sentence, "An unlawful combatant is someone who commits belligerent acts, but does not qualify under GCIII Articles 4 and 5" to be a clear definition of "unlawful combatant." By the way, thank you for adding the two links about Combatant Status Review Tribunals. -- GPS Pilot [03:21, 27 June 2005 (UTC)]

The paragraph is a re-write of the quote lower down the article by a legal advisor at the Legal Division of the ICRC. There is at least three other groups that I can think of who qualify as unlawful combatants in addition to those who are not GCIII POWS (and no doubt others can think of more):

• Combatants who are tried and found guilty of war crimes under their own military code.
• Combatants who are tried and found guilty of war crimes by an international court or tribunal, who are detained and handed over by their own side for trial and not by an enemy.
• Those who are alledgedly unlawful combatants and are not brought to trial eg mercenaries who are not captured by an enemy.

--Philip Baird Shearer 4 July 2005 19:37 (UTC)

Reuters report

I added the Reuters report to the paragraph which used the DoD Combatant Status Review Tribunals Updates, to present a more NPOV to the paragraph and I am going to revert the change to the paragraph to keep the NPOV. To explain why I will answer the two points raised by GPS Pilot in the history:

The Reuters article contains two comments in favour of the tribunals, and one critical comment. Selectively, only the critical comment had been reproduced here. Now all three appear. 05:57, 29 June 2005 GPS Pilot

There is no need to mention the two DOD official to because to paraphrase Mandy Rice-Davies "Well, they would, wouldn't they"? and the first half of the paragraph reports that the DoD has stated that their internal procedures have met the criteria for GCIII art 5 for a "competent tribunal". But as they were forced to do this by the U.S. Supreme Court, many (not just thoses sympathetic to the detainees alledged cause,) are not sure that the tribunals were fair and impartial and they will continue to think that until the Supreme Court rules on them. The comment by one of the detainees lawyers is a way to balance the DoD statement.

What is the point of reporting that only four unlawful combatants have been charged? Prisoners of war are not charged with crimes, and unlawful combatants have fewer rights then prisoners of war. 05:34, 29 June 2005 GPS Pilot

Yes they do have fewer rights than POWs but if they were unlawful combatants then they should be charged with war crimes or crimes against humanity. That so few have been charged suggests that the DoD's case of them being war criminals may not be very strong, or that the punishment for the crimes that they have committed would not produce very long sentences. For example if a person was fighting out of uniform, but had not killed anyone, then given the length of sentences issued in the Abu Ghraib torture and prisoner abuse the might well walk free given the time they had already spent in prison. Either way that so few have been charged is note worthy. --Philip Baird Shearer 4 July 2005 19:37 (UTC)

I don't see that as true. There is no need to be charged with anything. Engaging in combat is sufficient alone to detain for the duration of the conflict. Engaging in combat unlawfully is suffficent to strip you of Convention protection as I read it, same as being a national not covered by the Convention. So there is no need to charge with war crimes or otherwise. Also, the Supreme Court ruling is not apropo because Gitmo is under US control such that additional military tribunalsand due process is afforded Gitmo prisoners, including habeas corpus. The ruling is not based on Gen. Con.. Cyferx 05:40, 11 July 2005 (UTC)

All unlawful combatants are civilians?

This statement is made in the article: If that tribunal rules that the combatant is an "unlawful combatant" then their status changes to that of a civilian which may give them some rights under Fourth Geneva Convention. How so? Where is the citation for this? It seems rather that if they are not determined to be a lawful combatant, but they engaged in combat anyway, then they are a non-lawful combatant and not subject to the protections of the Convention. It seems clear that the Conventions were meant to do more than encourage proper treatment of POWs but to encourage proper conduct of wars, including wearing of identifying insignia and carrying arms in the open and so on to help protect civilian populations. Even when hostilities occur too rapidly for the donning of insignia, lawful combatants must carry arms in the open.

I think that it is clear from the documents that there are four kinds of status under the Conventions: lawful combatants, civilians supporting lawful combatants, non-combat civilians, and those not protected by the Convention, which include those individuals from non-contracting countries and others who do not fall into one of the previous three categories. The idea that those combatants who do not follow the rules of war are somehow just simply civilians would make the Conventions meaningless. Why would we care then how they conducted themselves in combat?

So I think the article should state the facts, or if it is going to give novel legal opinions, then it should cite the source of these opinions. --Cyferx 02:19, 11 July 2005 (UTC)

The idea that those combatants who do not follow the rules of war are somehow just simply civilians would make the Conventions meaningless. Why would we care then how they conducted themselves in combat?

Civilians who engage in warfare are commiting crimes (murder, assault, etc.) so we would be concerned about their conduct for this reason. The Geneva conventions legalise certain kinds of warfare which are considered legitimate, but they do not need to specify illegitimate acts of war as illegal because acts of war are already illegal within ordinary criminal law. It is only because we have special laws and conventions relating to warfare that soldiers are not in general taken to be criminals. At least, that's the way I see it, I'm certainly no expert so corrections are welcome. Cadr 06:45, 11 July 2005 (UTC)

I would agree except that they do not receive the same protection as non-violent civilians, or even civilians committing other crimes, i.e., attacking the occupying force in a non-military manner often subjected one to execution (similar to looters who may be shoot on sight). Granting civilian status to military personnel who violate the Conventions is contrary to the intent of the agreements. Military prisoners before were often killed. The point is that if you agree to fight fair then you will be treated fair, rather than poorly treated or even executed. In any case, I think this opinion should be cited and not be a bit of original research or novel opinion. Cyferx 04:09, 13 July 2005 (UTC)

Well, if their status has to be decided by a competent tribunal before it can be determined whether or not the convetion applies to them, surely summary execution of unlawful combatants would be prohibited by the convention. Having said that, I think this has more to do with the law of the country whose military is doing the executing than with the convetions themselves. If you are not explicitly granted rights by the convetions, you have whatever rights your government (or occupying power) grants its citizens/subjects. Unfortunately, this may or may not include the right to due legal process. Cadr 10:33, 13 July 2005 (UTC)

That's not how it reads. Triubunals are only needed if their staus is questionable. And I am still only looking for a cite. I am really not advocating for one reading over another, I am saying that you have to have a cite for statements like that. Who is saying it? Citation: It is what makes a work authoritive rather than just talking off the top of one's head. Cyferx 18:47, 13 July 2005 (UTC)

Fair point. To be honest I was expecting someone who knew more about this would post something here, but since they haven't I'll have to do some research. Cadr 07:13, 14 July 2005 (UTC)

I have added a footnote to the article to cover this point from a footnote in a weblink which cits . Footnote 1: International Committee of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: 1958), p. 51 (emphasis in original). The International Criminal Tribunal for the Former Yugoslavia, charged with prosecuting war crimes and crimes against humanity committed during the recent conflicts in the Balkans, has explicitly affirmed this principle in a 1998 judgment, stating that "there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied." Celebici Judgment, para. 271 (1998).

Celebici Judgment: Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No. IT-96-21-T Delalic et al. (I.T-96-21) "Celebici" 16 November 1998 Part III B, Applicable law 2. Status of the Victims as "Protected Persons" See: Para. 271 continues: "[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view." footnote to: Jean Pictet (ed.) – Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) – 1994 reprint edition.

--Philip Baird Shearer 18:22, 2 December 2005 (UTC)

BigRat 17:30, 28 August 2005 (European Central Time)

There's no mentzion of the "freedom fighter". This might not be 100% relevant as to the legal issues, by historically it plays a very large role - Vietnam, Italy (Garibaldi) and Greece (Byron) for example.

Footnotes

The footnote numbers in the article do not match up the enumerated list. (Previous unsigned comment by 161.253.11.129 on 9 October 2005.)

Introduction

I am reverting the introduction back to a simpler one used earlier in the year because the current one is full of inaccuracies. For example "is a spy, saboteur or a terrorist" This is just not true. The SAS are saboteurs but they fight in uniform so are not unlawful combatants. What is a terrorist? There is no mention of them in the Geneva conventions. What about unlawful combatants who are mercenaries, or soldier who have breached the law of war through perfidy? etc, etc.

There are many special cases, as well, including those in recent years of armed militants who are deemed not to enjoy protection of the Geneva Convention (GC) on the grounds that they are not part of any country which is a treaty signator.

This has not changed in recent years and is a POV statement. (It might be a American legal POV but that does not make it any less true under international law). What has changed in recent years is the introduction of the International Criminal Court and that more countries have signed up for Protocol I which will become part of international law binding on all eventually if enough sign up to it. See Judgement : The Law Relating to War Crimes and Crimes Against Humanity: Several of the belligerents in the recent war were not parties to this Convention [ Hague Convention of 1907]. In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt "to revise the general laws and customs of war," which it thus recognised to be then existing, but by 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the Charter.

Nevertheless, many Western advocates who oppose America's conduct in the War on Terrorism advocate extension of combatant status to unlawful combatants, claiming various humanitarian, legal and political grounds. There is the humanitarian idea that everyone should get a fair trial. There is the legal theory that the Geneva Convention automatically applies to all enemies of treaty signatories. There is the political idea that requiring America to extend GC protection to its detainees is good, because it will otherwise undermine its military strategy.

This is just US specific and should go in "United States" section if anywhere. --Philip Baird Shearer 09:40, 2 December 2005 (UTC)

International criticism of unlawful combatant status

I think this section should be reserved for the problems under international law of the creation of "unlawful combatant status" in that because there is no mention of the status in international treaties, it is not clearly defined and the worry is that the US is setting a precident which will be abused by others in the future.

Any criticisms of the US administrations policies on this issue should be in the section "Critics and Proponents"

It seems to me that the problem in the US has been that because the last major cases, (before the current ones), relating to unlawful combatants were ex parte Quirin (1942) and Johnson v. Eisentrager in (1950). Consequently any development in international law Particularly Geneva conventions in 1949, was not reflected in the domestic laws of the USA. It seems to me that as the cases grind their way through the US courts the critics of the US government are being proved correct. For example one of the early criticisms was that the detainees should be subject to ("a competent tribunal" GCIII (article 5) if the US government said that they were "Illegal enemy combatants". The US government argued this was not true, but in the end the courts ruled that it was, and the US government then put all the detainees through "Combatant Status Review Tribunals". So it is taking time but the US internal laws and practices are gradually following international law.

One thing to bear in mind thought is that if a detainee is a citizen of a neutral country or the US then although GCIII applies for all combatants (and hence the need for "a competent tribunal"), GCIV does not apply to them, and an argument can be made for holding those who do qualify under GCIV under GCIV Article 42 because the "security of the Detaining Power makes it absolutely necessary".

--Philip Baird Shearer 17:58, 3 December 2005 (UTC)

You removed my reference to international law. I don't understand why because this is exactly why other countries criticise the US. Clearly this should be mentioned in this section. Therefore I inserted it again. Of course if you think this is does not constitute international critique you might want to explain why before removing it again.

The Geneva Convention is not dependent on US law. Any citizen from a country that signed is entitled protection. I know the Bush administration claims it is not but that is exactly why this comment is needed in this article. Furthermore, you will see that the references supplied explain why the Bush administration's stance is thought to be wrong.--Nomen Nescio 01:58, 4 December 2005 (UTC)

I thought I had explaind my reasoning in my last posting to this page this section (17:58 3 Dec)

• Any criticisms of the US administrations policies on this issue should be in the section "Critics and Proponents"
• .... For example one of the early criticisms was that the detainees should be subject to ("a competent tribunal" GCIII (article 5) if the US government said that they were "Illegal enemy combatants". The US government argued this was not true, but in the end the courts ruled that it was, and the US government then put all the detainees through "Combatant Status Review Tribunals".
• etc etc

Obviously any civilised government must obey its domestic law. Day to day international law only exists to the extent that treaty obligations are incorporated into domestic law. There is a difference between criticising US government policy and the implications of a president being set which creates a new de facto status for some combatants. --02:48, 4 December 2005 (UTC)

There was critisism and international criticism. Since I placed it under international criticism, which it is, I don't understand the problem. However, I have merged both paragraphs so there can no longer be any confusion. Hope you agree.

As to the Geneva Convention. The Bush administration has not fulfilled its obligation for two reasons. 1 Not all captives have been granted a review by the so called "competent tribunal." 2 The "Combatant Status Review Tribunals" were not exactly what is meant by "competent tribunal."

Civilised countries are bound by domestic AND international law. Whatever the Bush administration my claim, the U.S. still is bound by international law prohibiting violations of human rights, prohibiting torture, prohibiting rendition, demanding due legal proces, et cetera. If not, than why is SH on trial? His local law did not prohibit human rights violations. This means that the current use of unlawful combatant is invented by the Bush administration. To allow for that there has to be a review by a "competent tribunal." This has not been done adequately. By not doing so the US violates the Geneva Convention, and no, the president does NOT have the power to do so. Even mr Bush is bound by U.S. AND international law! Which explains why this administration was looking for loopholes regarding war crimes, see the Gonzales memos. And it also explains this administration vehemently resisting the International Criminal Court.--Nomen Nescio 18:55, 4 December 2005 (UTC)

A civilised state may be bound by some international treaties to which they have not subscribed, however that is still very debatable. But an individual is bound by domestic law. If of course the state has international treaty obligations and they have a competent judicial system the two will eventually tally. Which is what has been happening in the US as the cases grind their way through the courts. To be more specific for a moment: Which captives who are called as "illegal enemy combatants" by the Bush administration have not been in front of a "Combatant Status Review Tribunals"? Who says that they are not "competent tribunal[s]" in the meaning used in GCIII? (See footnote 19 in the article)

I think there should be two different sections. One for the academic debate over what is an unlawful combatant, and what their status is under international law. Is there such a thing as an unlawful combatant under international law? For example is a mercenary an unlawful combatant or just a common criminal?

That is different from criticisms of the specific U.S. administration's policies, which are gradually through the US legal system are gradually being brought into line with international law. BTW it is two way street, the Interpretation by the US Supreme Court of US treaty obligations will have an influence on how others interpret international law.--Philip Baird Shearer 20:48, 4 December 2005 (UTC)

Who has been denied a "competent tribunal?" How many of those held on Guantanamo Bay have been in front of such a competent tribunal? Furthermore, what does this mean? I think this would suffice to warrant the statement: not all captives have been in front of ...........

Of course you are right that it is possible to be bound by international law you have not signed to. However, that is not the case. The US has signed the Geneva Convention, the US has signed the treaty against torture, the US has signed the universal decleration of human rights. So, I fail to see what you are trying to say. At this moment, the US is bound by all these international treaties, and the use of "illegal combatant" clearly violates several of them. Heck, Padilla has shown there is even a violation of the US constitution. Also, Padilla shows how the Bush administration tries to evade legal challenges to their policies regarding "enemy combatant" status.

As to the legal principle of unlawful combatant, I think the entire notion is ridiculous. Just think of it, how can a combatant be illegal? Is he illegal because you just deny he is at war with you? Is he illegal because he is wearing the wrong clothes? Is he illegal just as the notoriuos "illegal alien?" Is he illegal because he was not at the location you claim he had to be? You see these are exactly the arguments used by the US administration, which if you look at US actions would also apply to US officials (rendition!). Each of these explanations is not only illogical, they also warrant a debate on the legallity under international law. But is this not what critics are doing? Therefore the two different paragraphs in my opinion could be in one. But let's leave it as it is. --Nomen Nescio 09:42, 5 December 2005 (UTC)

• Is he illegal because you just deny he is at war with you? No to be an enemy combatant either legal or illegal you have to be in a state of armed conflict with a Power that person fights for.--Philip Baird Shearer 10:35, 5 December 2005 (UTC)

In other words they are a POW!--Nomen Nescio 19:14, 5 December 2005 (UTC)

• Is he illegal because he is wearing the wrong clothes a combatant is "obliged to distinguish themselves from the civilian population" but "Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly". Protocol I Which is a looser definition than GCIII and has not been signed by the US, but even so there are people who do not fit that criteria.--Philip Baird Shearer 10:35, 5 December 2005 (UTC)

As we know the CIA does not introduce themselves as such. This would mean they are unlawful combatants. Furthermore, several of these unlawful combatants have been apprehended outside the battlefield (Europa, Canada, and the US) why should they be seen as combatants?--Nomen Nescio 19:14, 5 December 2005 (UTC)

• Is he illegal just as the notoriuos "illegal alien?" No--Philip Baird Shearer 10:35, 5 December 2005 (UTC)

• Is he illegal because he was not at the location you claim he had to be Not sure what you mean by this.--Philip Baird Shearer 10:35, 5 December 2005 (UTC)

Several of these unlawful combatants have been apprehended outside the battlefield (Europa, Canada, and the US) why should they be seen as combatants?--Nomen Nescio 19:14, 5 December 2005 (UTC)

They are "unlawful combatants" if they are found to be so by a "competent tribunal" under GCIII or if found to be such by their own side after a similar tribunal usually a court martial. --Philip Baird Shearer 10:35, 5 December 2005 (UTC)

Indeed, after they have been in front of a competent tribunal.--Nomen Nescio 19:14, 5 December 2005 (UTC)

Critics and Proponents

I am not convinced that the paragraph "Furthermore... Because of this legal experts contradict the U.S. administration's claim they can deny a prisoner of war status and detain suspects as "unlawful combatant." is needed. It repeats the main part of the article about GCIII and GCIV and only becomes relevent if there are detanees who the US administration called "illegal enemy combatants" who have not been in front of a GCIII "competent tribunal". So:

1. Which captives who are called as "illegal enemy combatants" by the Bush administration have not been in front of a "Combatant Status Review Tribunals"(CSRT)?
2. Who says that CSRTs are not "competent tribunal[s]" in the meaning used in GCIII?

See footnotes 19 and 21 which include: [1] and [2])

There is a further argument that if a detainee has been in front of a "competent tribunal" and be have found to be an "unlawful combatant" and they come from Afganistan (so fall under under GCIV) then they should be put on trial under the "fair and regular trial prescribed by the present Convention". This seems to me a more relevent area to discuss as that is the area which is still not settled in the US courts. --Philip Baird Shearer 10:35, 5 December 2005 (UTC)

1 As you know, many unlawful combatants have been apprehended in Europe, Canada and the U.S.. Since these suspects were not engaged in combat, nor even present on the battlefield, this means they are civilians. Or, at best criminals. They do not fall into the category of combatants. Therefore unlawful combatant seems unwarranted and not supported by the Geneva Convention.

2 Some have not been in front of a "competent tribunal," as can be seen here.

If they are on a list of "Ghost Prisoners" then persumably the US administration is not claiming that they are detained "enemy combatants". -- Philip Baird Shearer 00:08, 30 December 2005 (UTC)

Which is even worse. The US is holding people without informing the Red Cross. Yet another violation of the Geneva Convention! And possibly a war crime.--Nomen Nescio 13:30, 12 January 2006 (UTC)

3 The Combatant Status Review Tribunals are flawed, which can be seen in these cases: a A military tribunal determined last fall that Murat Kurnaz, a German national seized in Pakistan in 2001, was a member of al Qaeda and an enemy combatant whom the government could detain indefinitely at the U.S. military prison at Guantanamo Bay, Cuba. <......> evidence, recently declassified and obtained by The Washington Post, shows that U.S. military intelligence and German law enforcement authorities had largely concluded there was no information that linked Kurnaz to al Qaeda, any other terrorist organization or terrorist activities.[3]. b Moazzam Begg in which the conclusion was that the Combatant Status Review Tribunals do not have the discretion to determine that a detainee should be classified as a prisoner of war -- only whether the detainee satisfies the definition of "enemy combatant" as provided in references (a) and (b). This is incorrect since such is the entire raison d'etre of any "competent tribunal." The status of these prisoners is supposed to be determined by a competent tribunal. Oddly enough this is not done, which would make this ruling in violation of the Geneva Convention. c In an ostensible effort to comply, the Department of Defense (DoD) impaneled combatant status review tribunals (CSRT) for the 560 still-imprisoned detainees. The CSRT conducted rudimentary proceedings to ascertain whether the detainees were enemy combatants and released three dozen who, the tribunals concluded, were not. The CSRT afforded detainees few basic protections. Many lacked counsel. The CSRT also informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified. Moreover, detainees had no right to present witnesses or to cross-examine government witnesses.[4][5] d U.S. District Judge Joyce Hens Green said the reviews designed to determine (their status) are so stacked against them that their findings cannot be trusted. <.....>Green criticized the military for using what she called an illogically broad definition of "enemy combatant" in deciding to hold Muslim men from dozens of countries for as long as three years. She said in many cases people were detained simply for being alleged members of groups that do not like Americans. Green quoted extensively from the tribunal proceeding against Mustafa Ait Idir, 34, an Algerian living in Bosnia who was accused of plotting with others to blow up a U.S. embassy there. Idir noted that a Bosnian court found no evidence against him and repeatedly but unsuccessfully asked tribunal officials to present their evidence that he was an al Qaeda fighter. He argued he could not prove a negative, and that he would hit a person who claimed he was a terrorist in the face, which prompted the tribunal members to laugh. The exchange "might have been truly humorous had the consequences of the detainee's 'enemy combatant' status not been so terribly serious and had the detainee's criticism of the process not been so piercingly accurate," the judge wrote. [6] e It appears ... that the procedures of the Combatant Status Review Tribunals do not qualify as status determination under the Third Geneva Convention. <......> The fact that no status determination had taken place according to the Third Geneva Convention was sufficient reason for a judge from the District Court of Columbia dealing with a habeas petition, to stay proceedings before a military commission. Judge Robertson in Hamdan v. Rumsfeld held that the Third Geneva Convention, which he considered selfexecuting, had not been complied with since a Combatant Status Review Tribunal could not be considered a ‘competent tribunal’ pursuant to article 5 of the Third Geneva Convention.[7]

4 Even if we disregard the previous points, it is evident the Bush administration violates article 5 of the Geneva Convention, which states such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. This clearly means that were we to accept the invented status of unlawful combatant, this could only be used after and not before their status has been determined. The Bush administration first determines prisoners are unlawful combatants, denying a prisoner of war status, and then looks if that is warranted. This alone constitutes a violation of article 5. A "competent tribunal" is only necessary if one would like to choose a different status, let's say unlawful combatant. It is not meant to determine if these prisoners are POW, that they are until such time as their status has been determined by a competent tribunal.

It is evident there are numerous flaws in the position taken by the Bush administration and therefore these misrepresentations of international law should be discussed in the article. As to your critique on the military tribunals, that is correct. This violates the right to due legal process. --Nomen Nescio 16:19, 5 December 2005 (UTC)

Not "engaged in combat"? Would this exclude the unlawful combatants planning and carrying out thier operation (eg., planning terroristic action around the globe)? ... what is the area of the "battlefield" concerning terrorist? JDR 21:38, 5 December 2005 (UTC)

You clearly think it is necessary to arrest any person, at any place, at any time. Personally I think this constitutes a police state. --Nomen Nescio 22:19, 5 December 2005 (UTC)

Sorry but the extreme hypothesis fails... a "unlawful combatant", "terrorist", or other "militant" engaging in "combat" does not equate them with individual opposing the actions of the government of the day without being violently opposed to the system (a political or social one; eg, conducting "operations"). The difference of the two does not dictate that it is "necessary to arrest any person, at any place, at any time". Sincerely, JDR 22:37, 5 December 2005 (UTC)

Evidently you miss the point. On what grounds is the "terrorist" arrested? As you know, many so called unlawful combatants turn out to be innocent. Not merely because the Red Cross or Human Rights Watch says so, even US military acknowledges this. And what is the difference between a terrorist and people disagreeing with the government (you are aware the FBI has been targetting human rights and animal rights groups)? With that in mind how do you prevent innocent people (any person) to be arrested? And on what grounds can such a person be arrested in a non-combat enviroment (any place)? Don't forget we are talking about people being appprehended and determined to be unlawful combatant, not just criminals. --Nomen Nescio 22:49, 5 December 2005 (UTC)

I would like to answer you points here and develop them further but it is taking time to put the information together (a lot to read) So please give me 24 hours. Philip Baird Shearer

No problem.--Nomen Nescio 22:20, 5 December 2005 (UTC)

I have not forgotten that I want to make some points. But reading the CSRT article led me to Moazzam Begg and this link in the external links: documents from Moazzam Begg's Combatant Status Review Tribunal, hosted by cageprisoners.com

It is a PDF file. Which I have run that through a program "pdftotext", but the text is not all that clean and it is taking time to clean it up. I am doing this because the articles have quotes from the documents which include references to other documents like the terms of reference for the Tribunals which would be useful feed back into the articles. However Page 100 of the PDF is a reference document and it is not the Wikipedia source but the Wikipedia commentary on Geneva Three referenced as "exhibit D-f" and on the page is hand written "Exhibit D-f" so it is not a transcription mistake on the copy, it was a mistake in the original archive. The mind boggles at the thought that no one noticed that it was not the correct document and that page 2 owards of the supposed document is a different document from another web site! There is an intriguing but worrying thought, that who ever presented the documents to be appended to the hearing's main documents was reading Wikipedia for tips! --Philip Baird Shearer 23:43, 8 December 2005 (UTC)

Of course there is no hurry. The points warrant serious discussion, so take your time.--Nomen Nescio 11:17, 13 December 2005 (UTC)

I think that the Moazzam Begg transcript raises a lot of interesting issues particularly on the terms of reference of the CSRT. Presumably this will eventually be addressed by the US courts. --Philip Baird Shearer 00:08, 30 December 2005 (UTC)

Recent events have made it evident no legal review will take place. If the Bush administration has its way Habeus corpus is suspended and all pending cases will be stopped. How about unlimited and unchallenged power?[8][9]--Nomen Nescio 13:38, 12 January 2006 (UTC)

Introduction

I am going to revert most of the changes made to the introduction because UC is not just an American administration invention. As the rest of the page makes clear. The "Detaining Power" may choose to accord detained combatants the rights of prisoners of war is not true. Not to grant POW status would be a war crime. The original wording was correct. --Philip Baird Shearer 21:32, 5 December 2005 (UTC)

Maybe not only, but certainly primarily a US administration POV.

Added criticism. This should be included in introduction, hope this is acceptable.

"The "Detaining Power" may choose to accord detained combatants the rights of prisoners of war is not true." Since the status of "unlawful combatant" is what is debated don't you think "prisoner" would be preferable. Will leave it, but please explain why "unlawful combatant" should be used.--Nomen Nescio 22:12, 5 December 2005 (UTC)

I will come back to the other section a little later (as I have been busy doing other things). But I think that line you addded to the introduction "Legal experts, however, doubt this interpretation of the Third Geneva Convention" should be removed. The reasons for this are:

1. reference 1 is a critisism of the Bush Administration interpretation of GCIII not about the concept of "unlawful combatants" in general. If it were to go anywhere it ought to be in the section "Critics and Proponents". But I do not think it is not a very good analysis of GCIII, for exampe it ignores such things as the status of mercenaries, perfidy etc (because I guess it is conentrating on critisising the US administration's current position), but that is another matter, and if you like I could go into details.
2. Reference 2 is a none starter because in the last paragraph of the article it says "Nonprivileged or unlawful combatants maybe charged with criminal offenses" So it clearly recongnises that such a status exist.
3. and as the reference in the article (The legal situation of unlawful/unprivileged combatants) which says "They ["unlawful combatant", "unprivileged combatants/belligerents"] have, however, been frequently used at least since the beginning of the last century in legal literature, military manuals and case law. The connotations given to these terms and their consequences for the applicable protection regime are not always very clear."

So we now have at least two articles which oppose the US administrations interpretation of UC, but both recognise that such a status exists under international law. --Philip Baird Shearer 12:32, 13 December 2005 (UTC)

It is true that legal experts doubt this interpretation of the GCIII. It is also interesting and important. Kevin baas 20:47, 14 December 2005 (UTC)

I am sorry but I do not understand what you have written please could you explain further. -- Philip Baird Shearer 22:46, 14 December 2005 (UTC)

For definitions see enemy combatant, combatant status, mercenaries— Preceding unsigned comment added by Nescio (talk • contribs) 16:15, 16 December 2005

My comment was addressed to KB, but thanks for the information Nescio. The first document is about the internal US postion on the status of US administration's "enemy combatant", so it is not relevent to the introduction of this article, but is relevent to the US domestic section. However in the document, first paragraph page 4 it says: "The [administration's] term "enemy combatant" actually encompasses two previously-recognized classes of detainees during wartime. "Lawful combatants," or prisoners of war..."Unlawful combatants" do not receive these protections and by additionally be....". So this document agrees that the status "unlawful combatant" exists, primarily in US law, but it does not argue against the SC Ex parte Quirin interpretation of the laws of war on this issue.

The www.globalissuesgroup.com is a useful website. But it has nothing to say on the interpretation of unlawful combatant as expressed at the start of this article. BTW there is at least one mistake in the page "A mercenary does not have the right to be a combatant or a prisoner of war. (Protocol I, Art. 37)" should read "Art. 47 (1)". Philip Baird Shearer 09:50, 17 December 2005 (UTC)

Globalize & Too big

• This article is too big. Law articles should be quoted only partially, and sub-sections lead to main entries Prisoner of war as the status of POW is discussed well enough over there. Here is not a discussion of the POW status, but of the "illegal combatant" status. Which brings us to the 2nd point:

I do not think that main articles is necessarily a good way to go as the same can be said with in line links which look less disjointed. --Philip Baird Shearer 16:48, 9 January 2006 (UTC)

• This article does not reflect world-wide views. Why? Because it lacks the most elementary NPOV, which would be to write in the first sentences that the Bush administration has invented this status. This is no judgment on this administration, but a fact on which all can agree. Defenders of the necessity of this new status can argue in favor of it, but we must all admit that this status is a consequence of 11-S !

UC is not a new term. It has been around for at least 100 years (and the references in the article say as much). It has been in US domestic law at the highest level since at least 1944 (and the references says as much). This is an international encyclopaedia not a US one, for Bush and the US POV should be under the USA section. -Philip Baird Shearer 16:48, 9 January 2006 (UTC)

• I made sweeping changes, so i understand why they have been reverted. However, some, such as quoting philosopher Giorgio Agamben's Homo sacer are genuine additions to the entry which have no true reasons being deleted. Let's take those issues separately, and see if we can reduce the size of this entry... Kaliz 15:57, 9 January 2006 (UTC)

A much better idea. --Philip Baird Shearer 16:48, 9 January 2006 (UTC)

Maybe you could first discuss before making such numerous changes. Especially since many of your objections to the neutrality are met by a myriad of references.--Nomen Nescio 17:59, 9 January 2006 (UTC)

Moved subsection "Other countries" here:

"Other countries, including the United Kingdom, Israel, Australia, Canada, and New Zealand make theoretical distinctions between lawful and unlawful combatants and the legal status thereof ." No source backing it up (if there is one, please put an endnote). As shown by this myriad of references, we're talking about a "post-11 S no man's land" or other "juridical vaccum". Kaliz 19:26, 9 January 2006 (UTC)

Britain and other Commonwealth countries make this distinction. Lord Kitchener proclamation against the wearing of British uniforms by the Boers during the Second Boer War. The Boers were forced to do this during the later stages of the war as nearly all their supplies and equipment was aquired through raiding. See Commando Chapter 22 Moss-Trooping: Deneys Reitz

There was plenty of beer and spirits at the inn, and although few of the men had tasted liquor for a year or more, there was no drunkenness, but Piet de Ruyt, our Hollander companion, took too much, and when the commando moved away at dusk, he was left asleep unnoticed.

Weeks later we learned that he had been discovered in a room, and as, like most of us, he was dressed in a British uniform. the poor fellow was executed, in all probability before his fuddled brain had time to take in what was happening.

Neither then, nor for weeks later, did we know that the death penalty attached to the wearing of khaki, and although after a while rumours reached us through the country people that our men were being executed, these stories left us doubting and perplexed. We could not believe that the English were resorting to the shooting of prisoners, and it was only after many had been executed that we learned of Kitchener's proclamation ordering the death of all Boers caught in khaki. As far as I know no steps were ever taken by the military to acquaint us with its contents.

... As I have said before, we had not heard of Lord Kitchener's proclamation against the wearing of British uniforms, and I went about wearing Lord Vivian's khaki tunic, with regimental badge and buttons, and the 17th Lancers skull and cross-bones in my hat, not a little proud of my well-earned trophies, and never dreaming that I was under sentence of death.

... In the course of our return journey Ben Coetzee and Edgar Duncker branched away on their own, and soon after, hearing several shots, we galloped in their direction. When we came up we found them sitting their horses in considerable agitation, while on the ground lay an officer and a trooper, both dead. It appeared that shortly after leaving us, as they rounded a piece of thorn bush, they ran into a small English patrol. So unexpected was the encounter that they were alongside before they could think, and Duncker, on the spur of the moment, called out, 'Don't fire, we are the 17th Lancers' The officer in charge, a Captain Watson, said, 'I don't believe you; all Smuts's men are dressed in khaki. Put up your Hands.' Then Coetzee and Duncker, both of whom carried Webley revolvers fired simultaneously, killing Captain Watson and one of his men, and seriously wounding another, who, however, got away with the rest.

This was a very unlucky incident, for the wearing of British uniforms had without doubt been the proximate cause of the death of these two men, and although we knew nothing as yet of Lord Kitchener's proclamation, General Smuts pulled a long face when he was told of the business. Indeed, long afterwards, when we met Lord Kitchener himself, he cited this very case in defence of the execution of so many of our men for wearing khaki.

Well the harm was done, and I can only say that none of us ever wore captured uniforms with the deliberate intention of decoying the enemy, but only out of sheer necessity.

This quote might be interesting. However, the concept of "unlawful combatant" does not appear anywhere in it. If the point is just to say that war involve treachery, well, better quote Herodotus's history than anything else. Tazmaniacs 15:16, 12 January 2006 (UTC)

"At least 100 years"... Indeed this view is uphold by a reference. But this is too general (and therefore confusing) a sentence. It should be quoted and directly linked (thru endnotes) to the reference in question.

It does not need quoting more than once. The quote is referenced. I see little point in referencing the claim more than once. --Philip Baird Shearer 22:04, 10 January 2006 (UTC)

Beside, the difference between subsection "International criticism of unlawful combatant status" and others "Critics" is unclear at best. They should be merged, or rewriten.

The difference is important. One is a criticism of the general concept the other is a criticism of the USA's implementation of it. --Philip Baird Shearer 22:04, 10 January 2006 (UTC)

No differences. Critics of the general concept critics the USA's implementation of it, and vice-versa. It is not a problem of anti-Americanism here, simply a concern for civil rights, which are de facto denied by this new juridical status of so-called "Enemy combatants". Amnesty International and others NGO will critic just as much any other countries using this status. Reading the text in those two sub-sections clearly shows that they overlap. Tazmaniacs 15:22, 12 January 2006 (UTC)

enemy combatant

Enemy combatant as used by the US military must be a short hand for "Illegal enemy combatant" because in any war there are combatants, friendly and enemy. For example in the Falklands War British Royal Marines who were captured at the start of the war were enemy combatants to the Argentinian and were treated as POWs when they surrendered. Later in the war when the British captured enemy combatants the Argentinian soldiers were treated as POWs. So including the term in "enemy combatant" in the title is confusing as not all enemy combatants are illegal enemy combatants. --Philip Baird Shearer 00:08, 11 January 2006 (UTC)

Your deductions certainly are interesting. However, Bush administration doesn't talk about "illegal enemy combatants", but COMMONLY use the term "enemy combatant". We will therefore keep this term here in Wikipedia. Tazmaniacs 15:10, 12 January 2006 (UTC)

Bush administration

Since it was the Bush administration that introduced the term into current legal and popular view it would be wrong not to mention this.--Nomen Nescio 00:44, 11 January 2006 (UTC)

Please explain why the reference to the Bush administrations keeps being deleted from the introduction. Could you at least let me know which other country or administration used this term in recent history? Otherwise I feel the deletion is unwarranted and I will insert it once more.--Nomen Nescio 02:18, 11 January 2006 (UTC)

Since no source has been advanced, showing other countries using the term "unlawful combatant," I am once more inserting the reference to the Bush administration in the introduction. Please do not remove it without discussing it first and showing proof it is incorrect. In other words: what other government (US or other) used the phrase prior to 9-11 and prior to the Bush administration?--Nomen Nescio 13:13, 12 January 2006 (UTC)

Sources are given in the article for Israel and Liberia using the term in modern times, there are bound to be other governments as well. The reason for deleting them is because the US administration is not the only organisation to use the term. See below my comments on a rant.

Enemy combatant is not an acceptable alternative title as enemy combatants can be legal and illegal and unlawful combatant can in theory also be a friendly combatant tried for a similar breach in the laws of war.

Your new additions to "ex parte Quirin" is addressed in detail in the case lower down the page so it does not need repeating yet again. Further the addition about "ex parte Quirin" is a straw man as the whole point of holding the men at camp X-ray was the Johnson v. Eisentrager case. The comment by the Bar Council (if needed) should appear only after the other cases are presented lower down the article.

Nescio in general I do not like you new wording because it is turning this article from a balanced piece into an article which reads like a rant against the Bush administration. I am having real problems with my IPS's broadband service at the moment so I am not on line as much as I would like to be, so my responses to your points are more tardy than I would like them to be. --Philip Baird Shearer 17:06, 13 January 2006 (UTC)

You disagree the Bush administration has introduced the use of the word in current times, yet I know of no other country that did. Evidently it has been advanced by the Bush administration based on legal literature, but to say it was well known and used is not supported by facts. I looked at the example of mercenary, but to say a mercenary is a enemy combatant is not entirely correct. Of course, the entire debate is: what makes one an unlawful combatant. It is clear that those the Bush administration deems unlawful combatant would previously have been called criminal. Hence, the by the Bush administration introduced erroneous interpretation, suggesting these prisoners do not have the right to due legal process and can be held incommunicado indefinitely, is a radical new way of thinking. As is the claim Bush as President is above the law from which it is taken. Which is explained by the sources I supplied.

The Quirin example warrants critique in the same paragraph. It would be illogical to suggest it is the basis of current policy without explaining the legal difficulties surrounding that view, let alone the fact the American Bar Association disputes that claim. The sources emphasise the need for nuance.

This is not meant to ridicule the Bush administration, but we would be wrong to leave out the enormous influence it has on the current debate. Not mentioning the Bush administration would leave people to mistakenly believe the term was common usage in legal discourse previous to 9-11-2001. That is incorrect as you know.

I'll revert. Sincerely --Nomen Nescio 17:49, 13 January 2006 (UTC)