Rescuing the Law of War: A Way Forward in an Era of Global Terrorism

Parameters ^ | Summer 2005 | MICHAEL H. HOFFMAN

[Axhandle]

Terrorists are gaining an astonishing legal edge over US and other armed forces deployed against them. The present trend promises to burden future generations, as well as our own, with an ad hoc, damaging legal framework sure to thwart counterterrorist operations and even furnish inducements for those tempted to join the terrorist ranks.

The long-term import of recent trends can’t be overstated. The United States is surely—and not so slowly—bestowing legal status and privileges on members of terrorist organizations that have no precedent in the 3,500-year recorded history of warfare. Terrorists are acquiring legal recognition and support of a kind unavailable to members of US and other national armed forces, and for that matter unavailable to insurgents during civil conflict as well. (There are early intimations that the United States may end up unilaterally bestowing similar status and privileges on the members of opposing state forces as well as terrorist organizations.) The notion that opposing forces will ever make these unique legal privileges reciprocally available to the US armed forces simply doesn’t warrant serious consideration.

This troublesome trend stems from uncertainty over how the law of war should be applied to meet terrorist threats. Though terrorism presents unfamiliar legal issues, these aren’t quite as novel as they seem, and we could devise a more pragmatic approach. There is a way forward, but time is working against the establishment of an effective, national-security-focused wartime strategy for counterterrorist action. Steps need to be taken now to ensure the survival of a realistic, useful legal framework that meets these emerging challenges.

[JudgemAll]

Terrorists' legal edge in whose mind? Under what framework?

Root causes is another way of saying Bush's fault or America's fault. It is unacceptable.

Terrorists are not just employees of terror like German Nazies, but entirely business partners of the employment of power struggle.

[kabar]

Good article from US Army War College. The author makes some valid points. The courts are setting some terrible legal precedents, which have long term implications. Judicial activists on the bench are trying to apply the Geneva Convention and our domestic criminal justice system to the WOT. We are hobbling our military by doing so, and that is without precedence.

I agree with his conclusion:

Unlawful belligerency, whether as terrorist warfare or in some other form, may become a familiar and ugly facet of modern life. The executive branch is best equipped to devise rules for this emerging though not entirely unprecedented problem, with oversight provided by Congress. The judicial branch is least equipped to answer these questions, but has taken a rapid lead. A pragmatic response to terrorism will require the systematic presentation of a clearly articulated set of customary rules of war. These must be established without further delay.

[theBuckwheat]

It would be productive to restore an archane word back into common usage: outlaw. This word means a person who exists outside of the protection of law because of his behavior or the people he associates with. The Islamo-jihadists are outlaws. They, like cancer cells, must die or they will destroy the healthy cells. As such, they do not deserve any protections of any of our laws. Indeed, we compromise our safety when we tie ourselves up in knots to give them protections they do not deserve, or to treat them in a way they would not reciprocate with.

[hershey]

I agree.

[Condor51]

The Geneva Conventions of 1949 is a joke and so is the one that was in effect during WWII as only three countries ₍₁₎ ever complied with it regarding treatment of POW's:
GB, the USA and ........... Nazi Germany (for the most part) ₍₂₎.

• Japan - nope,
  
• the USSR - nope,
  
• China - nope,
  
• North Korea - Bwaaaaahaha, nope,
  
• the VC and NVA - yeah, right,
  
• Saddam during Gulf War I - uh no.

So all this noise coming from the left that the USA's interrogation methods (aka 'torture') with the Islamo- fascists is putting our troops in danger is utter hogwash.

The Geneva Convention is meaningless - period. That is, unless we're going to fight another war with the Nazi's.

1 - France intentionally omitted.
2 - What the SS did at Malmedy doesn't count.

[Jumper]

American policy is to remain above reproach as much as possible and treat prisioners well. This may stem from an inability to corner foreign governments who sympathize with terrorists. While not recognizing legally the fair treatment of terror-combatants, this trend could abruptly end if a Western city were beset by weapons of mass destruction, e.g., dirty nukes, gas or disruption of the water supply.

The real problem is an inability to phrase a war by one religion upon another in the public airwaves in a fashion that does not fan the already irrational hatred of Islam and ignorance of its followers who will rally against Christians.

[EBH]

He is making some good points regarding the confusion about how to treat "terrorists" and private warriors, the word mercenary comes to mind, but what he seems to miss is the professed idea of an Islamic Nation.

In my reasoning we should be asking:

What are the goals of the organization?

Are they or could they be considered "special forces of Islam?"

How does a sovereign nation respond when WAR has been declared on it by a religion/theocracy(which is what has happened)?

Lots of money and recruits are flowing into the terrorist network...we say we're looking for sponsors yet we declare war on no nation. Islam has backed the modern world into a corner and until we declare war on the Crusaders for Islam we will be stuck in this quagmire of legalese.

Belligerent combatants, outlaws etc. these are just pretty words to describe the paid warriors for Islam. Islamic nations feigning ignorance when it is well known the mosques recruit soldiers for Islam, mosques collect millions of $$$, and the same countries funnel finances and weapons to their most highly prized special operations.

[conservatism_IS_compassion]

What the SS did at Malmedy doesn't count.

Even if (for whatever cockamamie reason you choose to adduce) it "doesn't count," you are leaving out a minor historical fact known as "der Ostfront." You note that Stalin didn't go by the Geneva Convention; Hitler didn't either - and he wasn't just following Stalin's lead. Both of them openly took the attitude that following Geneva was an unethical attempt to win the sympathy of the opposing army's soldiers. Geneva addresses the treatment of civilians, and the Nazis would have conquered Russia easily if they hadn't made it clear that they were even worse than Stalin in their treatment of civilians.

[BenLurkin]

Isn't there legal precedent in handling terrorists?

Specifically, why not treat them as pirates -- and hang them?

[rbg81]

There is one video clip that gets a lot of play on MSM channels (even Fox News) that I think is hurting our cause. It shows 2 guards at Gitmo escorting a terrorist prisoner to his cell. The prisoner is rather small (compared to his large, strapping guards) and wearing a white robe and headcovering--because of his dress, the prisoner looks very devout, even holy. The guards are dressed in camoflague and appear to be gently esorting the prisoner--not hurting him in any way. Even so, someone viewing this clip without context would conclude that the US military is unjustly locking up/oppressing devout muslimes.

I bring this up because even the most "harmless" looking information released from Gitmo can trigger and emotional reaction in people. If that reaction favors the terrorists, then politicians (reacting to public opinion) will eventually enact stupid policies. Perhaps all info released out of Gitmo needs to be focus group tested to insure the reactions do not hurt our cause.

[Joe 6-pack]

"Specifically, why not treat them as pirates -- and hang them?"

Because hanging is obsolete. They should be shot. Unless of course they are of any intelligence and/or propoganda value in which case such value should be extracted utilizing all necessary means, after which they should be shot (or hung, if you hopeless romantics prefer.)

[doberville]

"Isn't there legal precedent in handling terrorists? Specifically, why not treat them as pirates -- and hang them?"

EXCELLENT question.

On an earlier thread, a poster stated that the Geneva Conference only applied to uniformed soldiers. During WWII, any combatives caught out of uniform were summarily put up against a wall and shot.

Makes sense to me.

[BenLurkin]

Shooting them works for me.

Send their families a bill for the cost of the bullet.

[Condor51]

My reason for excluding Malmedy was that incident was an aberration in the general way the Nazi's treated Allied, as in US and GB, POW's.

And arguing who was more evil, Hitler or Stalin, is like arguing about how many Angels can dance on the head of a pin. One thing is a fact though, more Soviet Soldiers returned alive (against their will) from German POW camps than German soldiers did from Soviet POW Camps.

Okay, gotta go to work, bye.

[Joe 6-pack]

"Shooting them works for me."

I spent three years in South Korea, and in two of the positions I held, I worked very closely with the Korean National Police and ROK Military Police. They knew that a large number of nKorean sleepers were already in their midst and expected even larger numbers of infiltrators in the onset of open hostilities. Illegal combatants (i.e., those without uniforms) would be shown no quarter.

[barkeep]

We are allowing ourselves to be led down a path of twisted logic here. The folks incarcerated at Gitmo are NOT criminal defendants, they are POW's. Since it was replayed early AM, when Steve McQueen was recaptured in "The Great Escape" he did not get Habeas Corpus, he did not appeal to the 9th Circuit Court, he was lucky to get his baseball to play with in solitary.

God knows we are far from perfect. Kelo v New London and Raich SCOTUS decisions will give true lovers of freedom plenty to do, but let us pause on Independance Day and thankfully salute the fact, the incontrovertible fact and reality, that we are blessed to live in the most free nation on the face of God's Green Earth.

When you complain about illegal aliens, recall, that is only a problem because people are willing to risk their lives just to get here. I could go on at length, but no need. The fact that we are able to have this conversation on something Al Gore invented in his spare time is proof enough for me that we are truly blessed. I have always taken as evidence of real freedom the "fence test". If a country builds fences to keep people in, it is not free, if we have to spend money building fences to keep people out, we must be on the right track.

[Axhandle]

Here are a few questions that I have, on this topic, which I figured I would toss out to everyone on this thread. Perhaps someone here is, or knows, a JAG officer or someone of similar expertise. It is specifically about Iraq and Afghanistan.

Given that our enemy’s greatest strength is its ability to blend in with the civilian populace and conduct its insurgent activity when coalition forces are not present, one of the best ways to counter them is to also blend in, so that they their activities are disrupted by the uncertainty of not knowing when they are being observed.

Can anyone quote the section of the Hague or Geneva conventions or any written precedent that states that we must wear uniforms, even if only conducting surveillance? Or, is there no such rule?

What restrictions, if any, are there on Soldiers donning civilian clothes to blend in with the populace and hanging out on street corners, observing insurgent activity and reporting it to its higher headquarters or directing the actions of a unit attempting to maneuver upon those insurgents?

[kabar]

Check out Article 4 of Part I

Geneva Convention relative to the Treatment of Prisoners of War

[Axhandle]

From Part 1, Article 4:

"Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

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."

Follow up question. The excerpt above discusses who is or is not considered a prisoner of war (an interesting topic for many other related discussions, such as Gitmo). If a US Soldier does not comply with the guidelines above, then basically I guess he forfeits his status as a POW, if captured. So, my next question would be: is he obligated to conform to those guidelines? And, if so, what precedent/document asserts this?