LibriumArcana.Games

Over the internet and in real life I've heard many misunderstandings (look I'm being nice okay) over the term unlawful combatant. There are those who claim that anyone who points a rifle at an American or British solder is an unlawful combatant. There are a lot more that claim that it's a pretend term thought up by the Bush (Jr.) administration.

Both are wrong. Both are so damn wrong that I am tempted to hold it up as proof of the failure of the public school system to teach people how to look simple facts up.

Unlawful combatant is a term in international law first outline formally in the Hague convention convened in 1899.

Section I On Belligerents

Chapter I On the Qualifications of Belligerents

Article I

The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps, fulfilling the following conditions:

To be commanded by a person responsible for his subordinates;

To have a fixed distinctive emblem recognizable at a distance;

To carry arms openly; and

To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

Article 2

The population of a territory which has not been occupied who, on the enemy's approach, spontaneously take up arms to resist the invading troops without having time to organize themselves in accordance with Article 1, shall be regarded a belligerent, if they respect the laws and customs of war.

Translation: To be a lawful combatant, you must

A: Have a organized chain of command that can be held responsible for your actions.

B: Have a uniform or armband or hat or something that let's us tell you apart from the people who don't want to be involved in the impending firefight.

C: Carry arms openly. Don't hide the fact you got guns and are about to use them.

D: Follow the laws of war. No torture, no rape, no drug dealing, no targeting the noncombatants just to cause pain and terror. You must punish the members of your group that do not follow the laws of war.

People resisting an immediate invasion (I.E the invaders are just over the hill) are covered. Or in other words the Marshal's Posse is covered.

Found here

This was upheld by the US Supreme Court in 1942

From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. And the President, as Commander in Chief, by his Proclamation in time of war his invoked that law. By his Order creating the present Commission he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war.

Found here

So... by that definition, what are the insurgents in Iraq considered?

LadyTevar wrote:So... by that definition, what are the insurgents in Iraq considered?

Criminals, their supposed to be handed over to the criminal justice system after it's determined that they don't meet the criteria for lawful combatants, which I believe must be determined by a military tribunal. They can be held until the justice system is in a proper state to deal with them though. This means that they must be given a certain amount of rights while confined so you can't just treat them like a certain infamous American run Iraqi prison did.

Cpl Kendall wrote:
Criminals, their supposed to be handed over to the criminal justice system after it's determined that they don't meet the criteria for lawful combatants, which I believe must be determined by a military tribunal. They can be held until the justice system is in a proper state to deal with them though. This means that they must be given a certain amount of rights while confined so you can't just treat them like a certain infamous American run Iraqi prison did.

San Quentin?

Lonestar wrote:
San Quentin?

Actually their supposed to be handed over to the nations government in which they committed the crimes. So if Joe Bloe Mohammed blows up an
Iraqi Police station he's supposed to go to an Iraqi facility (pending the fact that the Iraqi facilities and system are in a state to handle him) if Joe Blow Mohammed blows up the Federal Building in Kansas City he goes to a US Federal Prison like you suggest.

The myth that 'Unlawful Combatant' is made up by Bush and Cheney stems from the fact that Cheney basically invented, from the whole clothe, the idea that unlawful combatants can be disappeared and held without charge. It should come as no surprise to anyone this upset people; it violates the Magna Carta and grants the POTUS power that English Kings haven't had in eight hundred or so years.

As well the term "unlawful combatant" does not appear in any of the four Geneva Conventions and the basic terms of a combatant under them is the same as frigidmagi listed but the default position is that if you don't qualify as a "combatant" under the Conventions but you take military action against a legitimate military force in war you are automatically classified as a criminal and subject to prosecution under the host countries laws.

Expect in this case the host government is often unable to do so. Also the laws have applied in places where there are no host governments, due to war or other calamity.

frigidmagi wrote:Expect in this case the host government is often unable to do so. Also the laws have applied in places where there are no host governments, due to war or other calamity.

Then it falls too the capturing forces to detain and "administer" to the captured criminals until the host government is able to. If there is no host government in place for the eventual future (like Somolia) I believe the detainees are able to be tried in either the courts of the country whose forces they attacked or in an international court.

Well under the Supreme Court case I posted qualified military tribunals are acceptable under US law. Recently the Supreme Court ruled that the Gitmo military tribunals did not met specs.

frigidmagi wrote:Well under the Supreme Court case I posted qualified military tribunals are acceptable under US law. Recently the Supreme Court ruled that the Gitmo military tribunals did not met specs.

Well yeah. Military tribunals are only supposed to determine whether or not they meet the criteria of combatant/criminal and whose custody they should be remanded over to, there not supposed to take the place of an actual criminal trial.