I was involved in a discussion over on Mark Shea’s blog about legal and illegal combatants, and how they are to be treated when they are detained. I claim no special expertise, but I’ve had probably 40 hours of training over the last 13 years in the law of war, because members of my Marine unit were expected to be the “duty experts” on the subject so we could advise commanders.
So I’m not talking from a position of total ignorance, either. Below is an expanded and edited response to one of the more intransigent, confused people in the Mark Shea comment box.
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Certain prisoners under U.S. control — especially the ones from Afghanistan, and probably many in Iraq, are illegal combatants.
If the U.S. government makes it a policy to treat illegal combatants better than it is legally required to do, that’s its prerogative. However, neither civilian appointees nor DOD regulations trump the Geneva Conventions, which, as treaties signed by the president and ratified by the Senate, assume the same level in American law as the consitution.
Those Conventions state that if an irregular force (i.e., a group of fighting men not authorized by the state) meets certain conditions, they are entitled to protected status and should be treated as legal combatants. The Third Geneva Convention says:
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
Terrorists often meet the first condition but not the other three conditions, so they are not legal combatants. Since they fall outside the protection of the Conventions, an opposing force may execute them as spies or saboteurs. That isn’t my opinion, it’s the law.
In my view, we should have executed at least some of the illegal combatants from Afghanistan, as an example to others. I say this not because I am bloodthirsty, but because it might have encouraged our enemies to fight more humanely. If we made it clear that we would kill any terrorist who targeted civilians or used other illegal warfighting methods, but we would intern those who respected the law of war, that would provide an incentive for our enemies to stop murdering the innocent. That’s a worthy goal, isn’t it?
I have to agree. A war should be fought in such a way as to end it as decisively and as expeditiously as possible within the confines of the rules of war. Doing less than that may prolong the conflict and cause more death and destruction (to both sides) than would otherwise be the case. Terrorists are simply not entitled to the same treatment as legitimate combatants.
And by the way, thank you for your service.
I am reminded of the photo of the South Vietnamese officer shooting a Viet Cong guerrilla in street clothes in the head. If I remember correctly, the executed man had just killed members of the officers family. The Tet Offensive was in progress. Of course his action was completely legitimate but the press turned it into propaganda for the enemy. People simply are unable to think straight about the realities of war.
People simply are unable to think straight about the realities of war.
You’re not alone in that assessment:
A View from the Eye of the Storm
http://www.jerrypournelle.com/mail/mail309.html#Sunday
Your argument is entirely correct, Eric. Terrorism undermines the entire basis for a government to fight a just war. Terrorists as described by contrast with the Third Geneva convention, assault the very foundations of civilization. Wars fought justly as you describe them, do not.
In other words, terrorism is a grave assault on the common good, at its most basic level: the ability of human beings to conduct society and care for families. Executing terrorists is completely justifiable.
Eric
I must agree with you and the previous commenters. You state the law as I learned it in the Viet Nam era, a terrorist or guerilla has no protection under the Geneva Convention.
Terrorism undermines civilization as we know it and must be dealt with accordingly.
Paz y bien
Ron
That picture of Gen. Nguyen Ngoc Loan executing the Viet Cong prisoner doesn’t tell even a tenth of the story. Here’s a good summary of the whole tale:
http://www.treefort.org/~cbdoten/rvntanks/080-4450.htm
The executed man had just murdered a policeman and seven family members. Eddie Adams, the AP photographer who took the picture, hated how his work was misused, saying after Loan died, “The guy was a hero. America should be crying. I just hate to see him go this way, without people knowing anything about him.”
Loan escaped South Vietnam after it fell to the North — he would almost certainly have been executed himself — and opened a restaurant a few miles away from where I live. He died at his home in Burke, Virginia.