German worries about, and overreactions to, perceived Francs-tireurs went on to become a big issue in World War I, especially in Belgium. Nothing scares a stuffed-shirt rear area officer more than the possibility that he might be on the wrong end of a rifle, and German officers were assiduous about punishing every perceived gunshot in conquered areas with harsh reprisals against civilians.
The Wikipedia article has an interesting meditation from G. K Chesterton on armed civilians:
(1) All male citizens aged 17 to 45 are members of the militia. If you did not already know this, well… Surprise? Congratulations? Anyway, Title 10, US Code says you are already a member of the unorganized (aka reserve) militia. If a piece of territory were occupied, the President could order all reserve militia members to resist by any means at their disposal, and thereby legalize any actions you took against the invading Army. (There is no case law precedent establishing how exactly this might work. It is a relic from Ye Olden Dayes, but still on the books. I imagine you would still be an unprivileged combatant according to the Geneva Conventions, unless you adhered to the four criteria required of lawful combatants.)
(2) Assuming that - for whatever reason - you were not eligible for the reserve militia or not ordered into action, but nonetheless took it upon yourself to fight the enemy, you would still be subject to US law. In that case you would have to find a prosecutor willing to indict you, and a jury willing to convict you, and you would probably have some pretty compelling affirmative defenses.
Well it must be positively stuffed with Americans, yes? Aren’t we responsible for at least a couple hundred thousand dead nocombatant Iraqis? Or is that Belgian establishment maybe a dog with no teeth?
There’s a third. The Fourth Geneva Convention from 1949 dealt with a lot of the issues of treatment of civilians in occupied territories that weren’t covered in earlier conventions. It included protections for partisans fighting against occupying forces. It also included responsibilities that those partisans must meet to operate lawfully and receive the same protections as the members of their state’s military. The “Wolverines” were pretty clearly unlawful combatants by those standards.
First, nightshadea is inaccurate that all non-combatant civilian deaths are warcrimes. They can’t be intentionally targeted but they can still be killed or injured, even knowingly, without it being a warcrime. One of the overarching principles in law of war is proportionality. From the Red Cross:
War crimes tribunals also have serious dental issues. There are two broad ways to end up before an international tribunal.
The first is action by the UN Security Council establishing a tribunal or directing it to the International Criminal Court (ICC) that was established in 2002. The International Criminal Tribunal for the former Yugoslavia (ICTY) who’s mandate ended last year is an example of a separate tribunal being established. Libya got referred to the ICC in 2011. The permanent members of the council all have a veto that can prevent that action. Any of those countries, or countries with their support, can make themselves immune from this route.
The other method is the International Criminal Court. It doesn’t have primary jurisdiction; ICC pursues violations where a party to the court is unwilling or unable to pursue them itself. 123 nations are parties to the agreement leaving a good chunk outside it’s jurisdiction without a security council referral. The US is not a party. There’s limits on parties in Article 98 to the Rome Statute transferring citizens of other countries to the court if that would violate their other international agreements. That produced something referred to as bilateral immunity agreements. The US has a bunch of those in place.
The US, Russia, and China are all essentially immune to their citizens being prosecuted by international war crimes tribunals. None are parties to the ICC and they all have security council vetoes. If they want to try a case against their citizens they can do it internally. If they don’t they can veto the referral. We probably won’t ever see the current Syrian leadership in the dock either. They aren’t a party to the ICC. At this point the regime can probably count on Russia vetoing a referral. The US, UK, and France might be motivated to use their veto as well; members of some supported rebel groups would likely be in the dock as well.
Those Iraqi dead aren’t dominantly warcrimes AND the ICC is effectively toothless with respect to the US.
The vast majority of those Iraqis were killed by other Iraqis. I know it’s fashionable to hate the US for every single thing that goes wrong in the world, but the Iraqis have spent the last fifteen years butchering each other and they’re still at it. That’s their decision.
Of those killed by the US, the vast majority were not ‘war crimes.’ Just because someone died in a war does not make it a ‘crime,’ which you would know if you had done even the slightest bit of research.
US personnel who do commit war crimes are imprisoned (gasp) in the United States. I mean, you do realize that the US has a functioning and responsible legal system? And you do know that the US puts actual effort into policing its own conduct? Ever heard of Robert Bales? Lynndie England? William Calley Jr? No? Regardless of what the whiners will tell you, there is probably no country on Earth that puts more effort into policing its own conduct.
Maybe instead of being outraged at America, you should be asking, ‘Where are all the ISIS members and Talibanis?’
Follow-up question (didn’t want to start a new thread for it): So according to the Fourth Geneva Convention, armed partisans have to be treated the same as the military (if lawful,)…but, they obviously have no “rank, name and serial number” to give if captured. So if they become POWs, are they to be treated better than captured enemy troops in uniform, or worse? Do the Geneva Conventions apply at all if Wolverine-type civilians are captured by invading troops?
Unlikely. Thousands of civilians are killed in most every war and very few people are ever tried for war crimes. And if the civilians are, as per the OP, shooting at you, you will not be held responsible if you shoot back.
If you, as a soldier, go out and deliberately kill unarmed civilians, then you might be tried for war crimes.
Basically the same if they qualify as lawful combatants. A prisoner of war is a prisoner of war. I suppose I could dig to see if there’s guidance for smaller issues like assigning allowed work appropriately, like for officers*, that the rank question helps drive. I won’t because I’m pretty sure those provisions have never been tested.
To be afforded the same Geneva Convention POW protections as other lawful combatants that are signatories to the Conventions there’s a catch. It’s a big enough catch nobody has done it. Those partisans have requirements to meet in order to qualify as lawful combatants. They need to operate in line with the Geneva Conventions themselves. They need to wear a sign or mark that identifies them as a combatant at a distance. They need to carry their weapons openly. Nobody’s fulfilled the requirements since the Conventions were modified in 1947.
I’ll leave you with the wikipedia article on unlawful combatants. As an aside, it especially sucks to be a mercenary under the Conventions. They get due process through a military tribunal but can have a pretty straight path from capture to a rope or firing squad.
There is no single answer on this. The Convention never actually uses the word “unlawful combatant” and does not clearly explain what to do with someone who fights without legal sanction.
In Ye Olden Dayes they were simply executed as marauders and bandits who were outside the boundaries of civilized humanity. This thinking has somewhat persisted into the modern day. For example, the Bush Administration selectively used the term to designate Taliban, Al Qaeda, and Iraqi insurgents, and many Americans agreed that they were “terrorists” and therefore fell into a separate category of evil that was neither prisoner of war nor civilian. This thinking has also been exploited by people such as Assad, who justify torture and indiscriminate violence under the pretense that they are fighting “terrorists,” who are outside the boundaries of the law of war.
The vague consensus that has emerged among scholars and human rights organizations is that there is no gray space between the Third Convention (prisoners of war) and the Fourth (civilians). This is to say that a person must be one or the other. There is not a “black hole” category for unlawful combatants who have no protections at all. A civilian who commits illegal violence would therefore be treated as any other civilian criminal.
This is why Gitmo is so problematic. If the detainees are prisoners of war, they should be treated as prisoners of war. If they are not prisoners of war, the detaining power should submit them for criminal prosecution and should have evidence that they committed a criminal act. It must be one or the other. There is no middle ground.
FWIW, my personal take is that the authors of a Geneva Convention did not imagine a world in which non-state actors would be the norm, rather than the exception. Our current set of laws and norms don’t adequately address questions of international terrorism or part-time “civilian” insurgents, which has provoked so much debate. I could write at length about this if you’d like, but I will refrain for now.
The problem with this, of course, is that criminals are innocent until proven guilty - a protection *lawful *combatants do not receive. Taken to extremes, this can lead to some major problems when waging warfare.
Consider: spotters observe a squad of armed men approaching your position. If those men are wearing uniforms, you can surprise them with an airstrike and kill them all without warning. If, however, they are not wearing uniforms, you need to make an effort to arrest them first, and only fire at them if they refuse to come peacefully. Obviously, this places uniformed combatants at a severe disadvantage, and goes directly against one of key intents of the Geneva accords - it actively *discourages *combatants from wearing uniforms and clearly identifying themselves as soldiers.
I’d go with militia. It’s even called out in the 2nd Amendment, which was written specifically to allow citizens to take up arms and band together to kill Indians.
Well, it’s specific to revolutionary wars, but a filibuster is a civilian unaffiliated with any government who enters a foreign country and attempts to help and/or create a revolution.
Oh, and the name was later reused for some arcane voting tactic that will surely never catch on.
This is not true. There is no law-of-war requirement that a soldier MUST attempt to apprehend a group of armed personnel. A commander might choose to impose a restrictive ROE on his troops, but this is not part of the Geneva Conventions. If a commander observed armed personnel in civilian attire and chose to attack, they would have a compelling argument that they acted reasonably.
The advantage the insurgent gains is that by creating ambiguity he hopes to remain anonymous and provoke the opponent into perpetrating unnecessary violence. However, the counterinsurgent gains an advantage by reducing ambiguity and increasing perceived legitimacy. So the idea that not wearing uniforms automatically grants and advantage depends on the circumstances we are talking about.
