Phil Carter, who is a co-author of the Slate piece that I mentioned below, an expert on law-of-war questions, and my former student, responded:
You wrote: “But I don’t see how the the Third Geneva Convention applies to insurgents who don’t abide by the laws of war, see article 4. (I’m also not sure why ‘prisoner’ status would automatically flow from securing the building.)”
Interesting note, but you’re basically making the same flawed argument as the DOJ and DOD lawyers with respect to the Gitmo detainees. The default position is that a combatant is entitled to Geneva protections, until such time as that combatant is adjudicated by a competent tribunal. (See Art. V) The official US policy is that Geneva III *does* apply to Iraq, unlike the the administration’s position with respect to Afghanistan and Al Qaeda detainees generally. But regardless, the treaty contemplates the situation where a combatant does not qualify for status under Art. IV, and establishes a procedure for adjudicating this. Until that tribunal acts, prisoners are entitled to 3rd GC protection.
As for the question of when someone becomes a prisoner, that’s a really thorny factual inquiry. I think the test was met here, because the Marines secured the building. But we’ll see.
There’s another interesting wrinkle here that we didn’t even cover. The Marines were fighting under a Rules of Engagement document. Even if this shooting didn’t violate the Geneva Conventions, it might have violated their ROE. And consequently, it may still be an unlawful killing. I don’t have access to those ROE documents, but I imagine they’re at the heart of the inquiry right now into this young Marine’s actions.
This one’s going to be studied at the JAG school for a long time.
Phil may be correct, and I can’t even express an opinion about the Rules of Engagement. But I’m skeptical about the need for a tribunal. It seems to me that while tribunals make sense when the question is what to do with a prisoner who is safely detained, they obviously can’t be used in a split-second decision in battle about who’s a possible threat and who isn’t. One could, I suppose, say that therefore soldiers must always err on the side of assuming that the person is protected by the Conventions; but that doesn’t seem right, given the soldiers’ need and entitlement to protect themselves against unlawful actions by unlawful combatants. If soldiers are entitled to deal harshly with wounded enemy soldiers who might be engaged in perfidious acts, surely that entitlement can’t be contingent on holding a mini-trial right there to determine the matter.
Also, the provision is in the Third Geneva Convention, related to treatment of Prisoners of War, “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.” Again, this makes sense once the person has been taken prisoner (hence its presence in the Prisoners of War convention), but not when we’re talking about wounded people on the battlefield, hence its absence in the Sick and Wounded convention — the one that I was discussing in my first post.
But beyond this, I don’t see any doubt in some situations — for instance, when the enemy combatant is captured while fighting in a mosque, which is per se a violation of the laws of war (again, see the first post in the chain), or fighting out of uniform, or otherwise not abiding by the laws of war.
Phil’s follow-up responses, to points similar to those I raise above (though I didn’t ask him about all of the points, so any incompleteness in his responses may flow from that):
[L]ook at the plain meaning of Art. V. In cases of doubt, you treat enemy belligerents as prisoners once captured, not as unlawful combatants or some other invented category. Only a competent tribunal can resolve this doubt. Now, you can still kill the enemy, and in fluid situations where someone may or may not be a prisoner, you can still act to defend yourself. The issues you raise have to deal with adjudicating someone’s status once they’re a prisoner — not what to do with them on the battlefield. I think you’re conflating the issues here, between the determination as to whether someone is still a belligerent, and on the other hand, what status a prisoner should receive after capture.
Seeking shelter in a mosque is generally a violation of the law of war, as is perfidy. Nonetheless, I don’t see any language about reasonable doubt or executive determinations in the GC. The language is very broad — “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.” [emphasis mine] It does not say “reasonable” doubt or anything of the sort, although that’s the argument that DOD and DOJ has made. I think the plain meaning of this article contradicts their interpretation, and so do a number of federal judges.
In any event, that’s not a job for the grunts to sort out. They’re allowed to use force within the constraints of their ROE. If their ROE breaks the law of war, then they have a defense of superior orders available to them, and the officer who drafted the ROE and approved will be on the blame line. Only a competent tribunal can determine these things. The Army’s even drafted regulations for what these should look like (see http://www.army.mil/usapa/epubs/xml_pubs/r190_8/cover.xml).
In any event, those are my views, and Phil’s — hope you folks find them interesting.
Comments are closed.