"...an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."
Likewise, from the very same two paragraphs you reference you would find that the Bush-definition of enemy combatant describes an "unlawful combatant" who has no right to POW status under Geneva or the LOAC.
That doesn't mean that such civilian combatants have no rights whatsoever, but they are far limited compared to what Geneva provides for uniformed forces, and there is indeed precedent in international (and U.S.) law. For instance, Hamdi v. Rumsfeld was argued to the U.S. Supreme Court in 2004, which ruled (among other things) "... repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge.". Congress tried to clarify in 2006 with the "Military Commissions Act of 2006" which does indeed contain a definition of an unlawful enemy combatant (one not reliant solely on the will of the executive). Likewise, several Supreme Court rulings have further eroded the position taken by Bush regarding the legal rights afforded to unlawful combatants held in Gitmo and other places.
And going back to the subject here (of whether the executive can unilaterally declare Snowden to be an 'enemy combatant' and send him to Gitmo): "On 18 December 2003, the Second Circuit Court of Appeals declared that the Bush Administration lacked the authority to detain a U.S. citizen arrested on U.S. soil as an "illegal enemy combatant" without clear congressional authorization (per 18 U.S.C. § 4001(a)); it consequently ordered the government to release Padilla from military custody within thirty days." (Padilla was a U.S. citizen arrested on U.S. soil).
But, that case ended up being thrown out on a technicality. When it was re-argued in the right court, they "ordered the Bush administration to either charge Padilla or release him.". They relied for that ruling on the Supreme Court ruling I'd just mentioned.
So no, Snowden should be perfectly safe from treatment as any kind of weird unlawful combatant should he return. In fact the term 'enemy combatant' was dropped in 2009 coincident to a certain regime change in the U.S.
Unlawful combatants don't have access to the rights under war laws, except Article 3 of the Geneva Conventions (see quote below).
Hence, the question is not if you treat them as POWs or as civilians -- but if they have the protection of a POW at all.
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[This was my reference for the previous claims. The Wikipedia link go to the Convention. I earlier referenced the relevant US law and their Supreme Court, which also discuss this.]
The Geneva Conventions do not recognize any lawful status for combatants in conflicts not involving two or more nation states. A state in such a conflict is legally bound only to observe Article 3 of the Geneva Conventions and may ignore all the other Articles. But each one of them is completely free to apply all or part of the remaining Articles of the Convention.[6]
So either they're civilians that have been arrested for crimes or they're prisoners of war. You have to choose and then play by those rules. Inventing new terms ("enemy combatants") isn't going to convince anybody but the most gullible.
The term is "unlawful combatant" and has the meaning of someone on the battlefield out of uniform. In the case of spies, they can be summarily executed perfectly legally - i.e. without breaking the Geneva Convention (which doesn't even apply in this case - it requires both sides to be signatories, and the Taliban aren't).
“Illegal combatants” was a term made up by the Bush administration so they could pretend they didn’t need to treat their POWs according to the Geneva convention. So we have a group of people who don’t get the protection of either the Geneva convention or the civilian courts. It’s a war crime is what it is.
> Speaking of international laws of combat: no protections apply to non-uniformed combatants pretending to be civilians. None. They can be tortured, executed on the spot, whatever.
Speaking of "armchair international law experts", this is completely wrong.
BLUF: Failing to distinguish does not deprive you of fundamental guarantees of humane treatment, including the prohibition of torture and summary execution - both of which are war crimes.
The individual obligation to distinguish is linked to Prisoner of War (POW) status - those who do not distinguish, do not get the protections of that status. That is the only consequence of the failure to distinguish. All those persons who are not POWs are automatically civilians, as made clear by the residual clause in Article 4(4) Fourth Geneva Convention (GC IV). While civilians can be interned for "imperative reasons of security", they are entitled to their own detailed treatment obligations (Articles 79-135 GC IV). In any case, even if they are somehow not entitled to that treatment, the fundamental humane treatment guarantees of Art 27 GC IV [1] and Art 75 Additional Protocol I [2] (which, as customary law, applies to all parties to a conflict) nonetheless apply. If we argue that it is a non-international armed conflict (which knows neither POW status nor the obligation to distinguish), Common Article 3 [3] similarly obligates humane treatment. Humane treatment is also a norm under customary law [4].
Under these rules, you cannot torture people and you cannot summarily execute people [4]. Read the provisions yourself. In fact, summary execution and torture are actual war crimes [5]. If you want to punish a person, you need to give them a fair trial (IHL does not prohibit the death penalty).
You seem to be hinting at the Bush-era "illegal enemy combatant" theory but even the Bush Admin never argued that those persons are not entitled to humane treatment (it was mostly about fair trial rights), and the US (as its lone defender) has long since abandoned the position.
Whether Hamas is actually subject to such an obligation to distinguish is highly controversial. On one level is the issue of conflict classification, since POW status and the obligation to distinguish only exist in the law of international armed conflict (IAC). If we accept that there is an IAC (e.g. because of the military occupation), then the question still arises if Hamas somehow "belongs" to the State of Palestine or if they should just be seen as civilians directly participating in hostilities or as being in a parallel non-international armed conflict between Hamas and Israel. In turn, if we accept that there is an obligation to distinguish applicable to Hamas, then Israel also needs to treat Hamas fighters that distinguished as POWs (and, as set out above, if they failed to distinguish, as civilians).
So, give references to international law about what exactly qualify as a war -- and what does not?
Because obviously, the top law specialists don't agree with you -- presidents aren't above the law.
Edit: Here is the US law about unlawful combatants: https://en.wikipedia.org/wiki/Military_Commissions_Act_of_20... It came after a decision from the US Supreme Court. (Another Supreme Court decision says the unlawful combatants are protected by the Geneva protocols.)
Edit 2: I asked for references and got nothing in the answer below. Enough for me.
They’re not necessarily unlawful combatants, it really depends on the specific circumstances. The Geneva Conventions contain a few loopholes. For example, if the United States is a participating party in the conflict, US citizens are not unlawful combatants, even if they aren’t affiliated with the US armed forces.
I think technically it meant that the Geneva conventions were applicable to them, but as the enemy combatants, not civilians. (There is an important distinction with unlawful combatants there.)
You’re thinking of the wrong war criminal. Enemy combatant was a designation invented by the Bush administration to avoid the requirement to treat War on Terror prisoners as would be appropriate to either soldiers or civilians. I don’t think the term existed in the Vietnam era but if it did it wouldn’t apply to NVA/VC forces operating out of Cambodian territory.
I undrestand that there's a good amount of carve outs for wartime stuff.
However, if there's any doubt about whether they even belong in the "enemy combatant" category, it seems pretty basic to allow them their attorney. Otherwise the gov't could claim you're an enemy combatant every time they want to take your rights away, and then lock you up forever.
Sure, eventually it will be overturned, but if the gov't just wants you in there for a bit then that's enough.
There's perhaps a more ambitious argument to be made here about the AUMF, what is actually a war, the classification of ISIS as such, etc. But good luck making that argument in this environment
Not if you just brand them the label 'Enemy combatants' - laws no longer apply then, apparently. I'm still waiting for someone to accuse and convict the US of war crimes and the violations of the rights of prisoners of war.
Unlawful combatants aren't protected by the laws of war, they're protected by the laws of the land they are in. I think you'd be surprised at how lenient the laws of the land can be for people who technically commit crimes like murder against invading forces.
Unless the US has declared war on itself, the capture of an American POW by the US seems contradictory in principle, and should make any American at least a bit uncomfortable.
If it's difficult to consider whether or not the rules of war apply in this case, then maybe that's because the war being waged is unjust in its scope or fraudulent in its definition.
The law of war doesn’t work the way you claim. At all. The Geneva convention specifically addresses non uniformed combatants and people wearing the wrong uniform, and does not permit them to be shot rather than taken prisoner.
"...an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."
Likewise, from the very same two paragraphs you reference you would find that the Bush-definition of enemy combatant describes an "unlawful combatant" who has no right to POW status under Geneva or the LOAC.
That doesn't mean that such civilian combatants have no rights whatsoever, but they are far limited compared to what Geneva provides for uniformed forces, and there is indeed precedent in international (and U.S.) law. For instance, Hamdi v. Rumsfeld was argued to the U.S. Supreme Court in 2004, which ruled (among other things) "... repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge.". Congress tried to clarify in 2006 with the "Military Commissions Act of 2006" which does indeed contain a definition of an unlawful enemy combatant (one not reliant solely on the will of the executive). Likewise, several Supreme Court rulings have further eroded the position taken by Bush regarding the legal rights afforded to unlawful combatants held in Gitmo and other places.
And going back to the subject here (of whether the executive can unilaterally declare Snowden to be an 'enemy combatant' and send him to Gitmo): "On 18 December 2003, the Second Circuit Court of Appeals declared that the Bush Administration lacked the authority to detain a U.S. citizen arrested on U.S. soil as an "illegal enemy combatant" without clear congressional authorization (per 18 U.S.C. § 4001(a)); it consequently ordered the government to release Padilla from military custody within thirty days." (Padilla was a U.S. citizen arrested on U.S. soil).
But, that case ended up being thrown out on a technicality. When it was re-argued in the right court, they "ordered the Bush administration to either charge Padilla or release him.". They relied for that ruling on the Supreme Court ruling I'd just mentioned.
So no, Snowden should be perfectly safe from treatment as any kind of weird unlawful combatant should he return. In fact the term 'enemy combatant' was dropped in 2009 coincident to a certain regime change in the U.S.
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