Unprivileged in my belligerentness

June 11, 2004 1:36 AM

You, Sir, are an unprivileged belligerent... The US charge David Hicks, the one Australian in Guantanamo, with being an "unprivileged belligerent". Confused? Try this brief (PDF) from Harvard's Program on Humanitarian Policy and Conflict Research (cached HTML) and learn how to ensure that your belligerentness stays privileged (and thus grants you rights as a prisoner of war).
posted by humuhumu (23 comments total)

Not the only Australian citizen.
posted by johnny7 at 2:09 AM on June 11, 2004

Not the only Australian in Guantanamo.
posted by Jimbob at 2:11 AM on June 11, 2004

Damn. What he said.
posted by Jimbob at 2:12 AM on June 11, 2004

I stand corrected... makes me wonder if all the attention given to Hicks is because he's (i) white or (ii) has been one of the hot prospects to be charged (and has been granted a lawyer, Michael Mori, who has been bringing a lot of attention to his case). Of course, (i) may be one of the reasons for (ii), as well.
posted by humuhumu at 2:20 AM on June 11, 2004

Hicks was actually charged with conspiracy to commit war crimes; attempted murder by an unprivileged belligerent and aiding the enemy. He's not charged with "being" an unpriveleged belligerent.
posted by David Dark at 2:38 AM on June 11, 2004

Trial in August. Then the election.

Oh for a Zola.
posted by emf at 3:32 AM on June 11, 2004

David Hicks has attracted attention because he's a good old ocker Aussie from the suburbs. His involvement with terrorists is clearly a case of the wrong choices of a confused kid. Surely he didn't mean anyone any harm? We're rootin' for ya buddy! Habib, on the other hand, is a dirty Ay-rab who's clearly as guilty as he looks. No need to defend him. </Australian Media Coverage>
posted by Jimbob at 3:59 AM on June 11, 2004

It's interesting that he went out and fought for the KLA in Albania in 1999 before going out to Pakistan and Afghanistan in 2000 (so quite a while before 9/11). He was captured in the tail end of 2001.
posted by humuhumu at 4:14 AM on June 11, 2004

Trial in August.

Well... tribunal in August. Let's not get carried away and call it a 'trial'. That conjures up all sorts of images of juries and impartial judges and fairness...
posted by humuhumu at 4:15 AM on June 11, 2004

...aiding the enemy...

How can you charge a foreign national with this?
posted by signal at 6:59 AM on June 11, 2004

What about the merely underprivileged belligerents?

What about them ? That's what I want to know.
posted by troutfishing at 7:06 AM on June 11, 2004

Any citizen who takes up arms for a group against his own country is "aiding the enemy". You can actually lose your citizenship over it.

It's weird...get enough unprivileged belligerents together and you have a militia, which is recognized as a privileged class of combatant...so if David Hicks was with enough people, they were a militia, i.e. a de-facto army, and shouldn't be found guilty of "attempted murder by an unprivileged belligerent and aiding the enemy".
posted by taumeson at 7:35 AM on June 11, 2004

What I want to know is how you can be charged with conspiracy to commit a war crime and still not be considered a prisoner of war when detained.

Either it's just a plain old crime(mass murder or something) or you should be a prisoner of war.
posted by Mitheral at 9:23 AM on June 11, 2004

What I want to know is how you can be charged with conspiracy to commit a war crime and still not be considered a prisoner of war when detained.

Either it's just a plain old crime(mass murder or something) or you should be a prisoner of war.

Modern international humanitarian law is founded on a legal paradigm distinguishing lawful combatants from peaceful civilians. It is predicated upon the idea that the best way to minimize the suffering caused by war is to draw a bright line between civilians and combatants and then separate the two distinctly, so that combatants can avoid or at least minimize civilian casualties. It is assumed that civilians will generally stay out of the fight, and in return they are protected from targeted attack except when directly aiding the war effort.

That's why the Geneva Conventions require that combat units "carry arms openly", "wear a fixed sign recognizable at a distance" and so on. These steps make it easier to know who is a civilian and who is a combatant. In return for voluntarily complying with these "laws of war", and for not deliberately targeting civilians, combatants receive special protection as Prisoners of War.

Al Qaeda strikes at the very heart of the laws of war. They deliberately target civilians; they hide in major population centers, essentially using civilians as "human shields"; they refuse to carry arms openly. By erasing the distinction between civilian and combatant, Al Qaeda undermines the very foundation of international humanitarian law.

Anyway, that explains the two reasons why war crimes are crimes above and beyond mere murder, taking you out of the Prisoner of War category:

First: it not, generally, a crime to walk around without a "fixed insignia"; it only becomes a crime when you're conducting war without a fixed insignia. The laws of war thus create a category of crimes independent of the "mala in se" crimes that most nations recognize (such as a prohibition on murder). Therefore, targeting a civilian during war is both murder and a violation of the laws of war.

Second: the only mechanism international law has to encourage compliance with these extra laws of war is to deny Prisoner of War protection to states and other groups which target civilians. Without that, combatants have no incentive to distinguish themselves, and great incentive to engage in terrorism or at least pretend to be civilians while waging war.

It's weird...get enough unprivileged belligerents together and you have a militia, which is recognized as a privileged class of combatant...so if David Hicks was with enough people, they were a militia, i.e. a de-facto army, and shouldn't be found guilty of "attempted murder by an unprivileged belligerent and aiding the enemy".

Except that Article 4(A)(2) of the Third Geneva Convention requires that militias obey the laws of war. Those militias that don't obey the laws of war and, say, target civilians deliberately, lose POW protection. So, even with a whole bunch of unprivileged belligerents, you don't get protection if you target civilians.

Which, by the way, brings out the perversity of the ICRC's interpretation of the Geneva Conventions. The ICRC argues that there's no such thing as an unprivileged belligerent under the Conventions; that everyone is either a POW or a civilian. The trouble is, Al Qaeda members can't be POW's, because they target civilians. This would, theoretically, make them civilians; with the result that groups which deliberately violate the laws of war get the special high level of protection provided to civilians precisely because they committed war crimes!

That's why, whatever the Bush Administration's attitude towards international law might actually be, their contention that some members of Al Qaeda are unprivileged belligerents actually has to be at least partially correct.
posted by gd779 at 4:45 PM on June 11, 2004

Sure, unlawful and unaffiliated combatants and terrorists don't fit within the framework of the Geneva Conventions. Should that remove the protections against "torture, corporal punishment, and humiliating or degrading treatment" and other protections afforded by the prisoner of war status without affording them something at least minimally equivalent? Hell no.
posted by azazello at 7:46 PM on June 11, 2004

gd779: Sure, if they're not within the category of that of a Prisoner Of War, and not therefore subject to the Third Geneva Convention, then they're civilians and thus subject to the Fourth Geneva Convention. But there's nothing in the fourth which says you can't be prosecuted and punished if you happen to be a mass-murderer or what have you. It's not like anyone from Al-Q would be thumbing their nose and going "Nyah, Nyah, you can't touch this...".

"Unprivileged belligerents" my aunt Moe. Does the USA just make this stuff up or what? Don't answer that, it's rhetorical.

(btw, those committing a war crime can still be prosecuted regardless of whether they're civilians or POWs)
posted by kaemaril at 7:14 AM on June 12, 2004

azazello: Actually, protection from "torture, corporal punishment, and humiliating or degrading treatment" etc is not afforded just to POWs. The fourth Geneva Convention (Geneva Convention relative to the Protection of Civilian Persons in Time of War) also expressly forbids such treatment for civilians also. It is for this reason, I assume, that the US doesn't like terrorists falling into either category, and thus must make up an additional category which has no protections whatsoever.
posted by kaemaril at 7:22 AM on June 12, 2004

"Unprivileged belligerents" my aunt Moe. Does the USA just make this stuff up or what?

The term “unprivileged belligerent” is not mentioned in any of the Geneva Conventions. It is, however, a long-recognized category under customary international law, and was incorporated into the Third Geneva Convention by reference. So the US isn't "making up" anything: there has traditionally been a category of combatant that receives no protection under international humantarian law by virtue of their refusal to abide by the laws of war.

Customarily, the international humanitarian law regime has enforced the separation between civilians and combatants (I mentioned this before) through the four general requirements laid out in Article 4(A)(2) of the Third Geneva Convention. Article 4(A)(2) requires that militias and other volunteer corps be “commanded by a person responsible for his subordinates”, have “a fixed distinctive sign recognizable at a distance”, carry arms openly, and conduct their “operations in accordance with the laws and customs of war”. These four requirements of customary law were first embodied in the Brussels Declaration of 1874 and then later in the 1907 Hague Conventions. Taken together they are intended to enforce the distinction between lawful and unlawful belligerency.

(The first and fourth requirements mandate compliance with customary international humanitarian law, including the prohibition on targeting civilians, and help to ensure that combatants actually comply with those rules. The second and third requirements aid combatants in recognizing the difference between enemy combatants and enemy civilians.)

Article 4 of the Third Geneva Convention was drafted “in harmony” with the Hague Regulations, which had required the four above criteria to be met even with respect to the official armed forces of a country. If the four criteria were not met, then the "unlawful belligerants" were denied protection under international humanitarian law.

Subsequent developments in international law have tended to confirm this view. The United States refused to ratify Protocol I Additional to the Geneva Conventions in large part because it would dilute the traditional requirement under customary law that protected POW’s must comply with the four traditional requirements in order to receive protection. For example, Protocol I specifies that “[T]here 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: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.” Commentators have summarized this provision as follows: “Unquestionably, the intent [of the provision] was to ensure that captured members of national liberation movements would fall within the definition of prisoners of war, whatever their prior conduct may have been.” When the United States government considered ratifying this Protocol, the protection that this provision would provide to terrorists was used as the basis for opposition to ratification by President Reagan, the State Department, and the Department of the Navy, among others.

In other words, the category of "unlawful belligerants" (receiving no protection under international law because of a refusal to abide by international law) has a long tradition dating back to the very dawn of international humanitarian law.
posted by gd779 at 7:28 AM on June 12, 2004

It is for this reason, I assume, that the US doesn't like terrorists falling into either category,

International humanitarian law recognizes that some warfare is lawful, and protects the soldiers who participate in this lawful belligerency as Prisoners of War. They cannot be prosecuted for fighting. However, the terrorism of Al Qaeda is unlawful belligerency. Providing Al Qaeda members protection as Prisoners of War would remove the ability to prosecute them simply for attempting to take part in the "war" effort, and would force the US to release them while they are still dangerous. Additionally, you cannot interrogate POW's (well, not beyond asking for name, rank, and serial number, basically). These restrictions not only voilate the "spirit" of international humanitarian law, they are unacceptable from a security perspective. So Al Qaeda members cannot be POW's, legally or on policy grounds.

Al Qaeda members also cannot be civilians. In addition to the absurdity of providing greater protection to combatants who willfully target civilians, declaring Al Qaeda terrorists to be civilians would make any "war" against them (anything from rounding them up and arresting them to actually trying to kill them) illegal! Even if you did arrest them, under no circumstances could you remove them from their home country. You certainly couldn't interrogate them, because the assumption under international law is that civilians are not combatants and don't have anything to do with the war effort. So Al Qaeda members also cannot be civilians.

International law simply isn't prepared to deal with the realities of modern international terrorism. But it is clear that, under the traditional principles of international humanitarian law, Al Qaeda terrorists deserve no legal protection under the Geneva Conventions.
posted by gd779 at 7:38 AM on June 12, 2004

Well, then, I am disgusted by the very concept that there exists a group of people (however bad they may be) who the international community deems deserve no legal protection.
posted by kaemaril at 8:09 AM on June 12, 2004

Well, then, I am disgusted by the very concept that there exists a group of people (however bad they may be) who the international community deems deserve no legal protection.

Well, first of all, that just underscores the seriousness of the rule that you don't get to intentionally murder enemy civilians, ever..

But when I said that unlawful belligerents receive no protection under "international law", I wasn't thinking. They receive no protection under international humanitarian law. Some basic human rights law should still apply, although some basic human rights can be lawfully violated during a national emergency, which we are arguably still in. And unprotected detainees must have some recourse to the judicial system; at a minimum, they must have the right of habeas corpus. And unprotected detainees must never be detained indefinitely.

But, basically, international "law" is a misnomer, because there is no law giver and no enforcement mechanism (except for reciprocity, which is what you don't like). In the Western world, we've largely forgotten one of the ugly truths about life: it's dangerous and unfair. International law deals with that as best it can, but punishing violators of international law to encourage compliance, but until some benevolent world power decides to be the "world's police" (which nobody seems to want the US to do) or just conquer the world outright, there will be times when our Western conceptions of the "rule of law" simply can't be rigidly applied.

I don't know if you've ever lived abroad, but when I lived in China I learned two very important lessons about this, which I think are the "two things" about legal theory:

First, the rights I think are "sacred" are just one way of looking at things; there are other valid ways of organizing society. There is no such thing as "law" in any universally binding moral sense, outside God.

Second, the illusion that the law is universally binding and morally compelling is necessary within a democracy.

Ironically, I part ways with you for precisely the same reasons that I part ways with the neoconservatives: you both think you've got a handle on absolute moral truth. The only difference is, the neoconservatives have the power to enforce their vision of absolute rights and are willing to fight those who violate the rights of others.
posted by gd779 at 10:14 AM on June 12, 2004

I don't think I've got a handle on absolute moral truth at all. There are many issues where I wouldn't have the faintest idea what is true and what isn't. The only certainty I have is this: in a fair and "free" democratically run (for the most part) Western world nobody should be able to classify anybody as having no rights. That way, pretty obviously, lies tyranny. No body should be able to say "Well, these people are so bad, they don't deserve any rights". If you want to constrict those rights, for practical reasons, then do so - in a clear and democratically accountable fashion. Don't lock people up without charge, indefinately, without recourse to the courts and without review, on the pretext that they're too dangerous for "conventional" justice, or that conventional justice doesn't or shouldn't apply to them.
posted by kaemaril at 12:31 PM on June 12, 2004

John Yoo: With 'All Necessary and Appropriate Force'

Michael Froomkin: Yoo, Unrepentant
posted by homunculus at 2:21 PM on June 12, 2004