Could the current US administations use of the term enemy combatants be applied to most civil war, revolution or rebellion members? Would the French Resistance of WWII, the break-away rebels/patriots of the American Revolution or the Roman slave rebellion (best known being Spartacus) all be called enemy combatants under current usage? From what I can see, the current administration seems to be using the term to mean “anyone fighting us that isn’t a member of the other sides official military.”
I present to you Article 5 of the Fourth Geneva Convention. It sets out international law with respect to the types of people you describe.
The term “unlawful combatant” generally refers to people who don’t qualify for the protections of “prisoner of war” status under Article 4 of the Geneva Conventions.
The easy answer to your question is that the Geneva Conventions weren’t drafted and adopted until 1949, so the term “unlawful combatant” didn’t apply to anyone before then.
So yes, none of them were actually “enemy combatants,” but all of them were effectively “enemy combatants” by default.
But I think the point you’re making is that those folks wouldn’t have met the requirements of Article 4 of the Geneva Convention (caution, link goes to Wikipedia). As you said, some would have us believe that the term applies to “anyone fighting us that isn’t a member of the other sides official military.” But it doesn’t.
The criteria are actually pretty thorough, and even rebel soldiers are included within its protections.
But that’s beside the point. One of the important purposes of the Geneva Conventions was to make war as safe as possible for everyone (civilian and military). At the Geneva Convention, everyone agreed that they’d act as humanely as possible in war (to minimize needless casualties and barbarity). The Geneva Conventions effectively changed the nature of war. So it’s not fair to compare modern wars with wars that were fought hundreds of years before the Geneva Conventions. Just because soldiers in the past have fought without following the laws and customs of war doesn’t mean it’s ok for them to do so now.
“Enemy combatant” is the general term, of which there are lawful and unlawful (or illegal) combatants. The fact that you seem to conflate the two makes me wonder if you really understand what you’re saying in the above sentence.
I believe it’s a fairly universal rule, even among GC signatories, that rebellion against the state is a crime, and in many states it is punishable by death. Lincoln would have been within his rights to have every captured man of the Confederate Army indicted for treason, tried, and hanged if convicted. But I don’t think indefinite detention without charge or trial would have been lawful. (Let’s not get into his suspension of habeas corpus.) By treating captured Cornfeds as POWs, however, he was entitled to detain them at least until the conflict was over.
In the case of the Guanatano detainess, none of them have been shown to be “combatants” of any sort, lawful or unlawful. They weren’t even captured during a war.
The OP does raise an interesting question, though, is any civilian who resists an armed invasion automatically an “unlawful enemy combatant?”
Yeah, it was just a little tea party we had going in Afghanistan. You do love to debate semantics, don’t you?
Anyone who has taken the time to read the GC can tell you that the answer is unquestionably “no”.
John Mace believe it or not, I did actually go scan the related section of the Geneva Convention and look up several sites definition of “enemy combatant”. While, per the GC, there are both legal and illegal enemy combatants, if you see that term in the press today, you can pretty safely bet that it is being used to refer to the detainees at Guantanamo Bay. See Amnest International, and PBS The Bush administration has denied that these people are prisoners of war, using instead the term enemy combatants. See
Diogenes the Cynic has it right. There are a number of people being held (or recently released) that may not have been any kind of combatant. Bringing the question back to…
Based on current usage, and not necessarily the GC usage, could any civilian caught in an act of war, say against an invading army or in an internal rebellion or civil war, be classified as an illegal or unlawful enemy combatant?
Could any civilian be classified as such? Of course. It depends on the facts of the case. But that doesn’t mean that all civilians would be illegal combatants.
A civilian who acts as a sabateur and who does not respect the laws of war could be declared an illegal combatant by a competent tribunal. But if a person from the Duchy of Grand Fenwick spontaneously takes up arms to resist a Fredonian invasion, and he obeys the law of war, the law says that he should be a POW.
And DtC, you are just simply wrong in claiming that there isn’t a war. It is a plain and simple fact that international law defines “war” broadly to include any armed conflict of an international nature. If you say that there isn’t a war going on, and you are right, then it stands to legal reason that nobody at all is entiteld to protection by the Geneva Convention, which presumably is the opposite of what you want to see happen? Or are you arguing that the GC is “quaint” and should not be applied to any detainee?
One ironic thing is that the gentlemen who drafted the US Bill of Rights had recently taken part in an unlawful (by British law) but successful rebellion against the established government. So they would have thought about it from the insurgent point of view (since they had been the insurgents), and assumed that the rights enumerated there applied to insurgents.
That only means that the press is using the term incorrectly, too, but I don’t think you’re correct on that point. The press often refers to Jose Padilla as an enemy combatant, but he is a special case in that he is a US citizen. I couldn’t find the term “enemy combatant” in the FoxNews cite you gave. Can you quote the section you mean?
I didn’t disagree with that part of his statment.
No. The GC specifically makes exceptions for “partisan” type fighters provided they carry arms openly abide by the rules of war. It’s right there in plain text. Now, if they start blowing up civilians and beheading captives, then they don’t abide by the rules of war.
And I still don’t know what you mean by “current usage”. How are you determining this current usage, and can we have some cites?
What nations are involved in the war on Terror? When was there a formal declaration of war? Who is the enemy? Who isn’t the enemy? It seems to me that a “comabatant” is just being defined as anyone we arbitrarily decide to attack or kidnap and an “unlawful” combatant is anyone who isn’t wearing a uniform when we attack or kidnap them. It’s completely circular. We attacked them, therefore it’s an armed conflict, therefore they’re combatants…and if they aren’t wearing uniforms, they’re terrorists.
I’m saying we have no right to hold them at all. If we think any of them committed a crime against the US, then they are entitled to the same due process as anyone else who is accused of a crime. If the Aministration wants to say they were combatants captured during a war, then they need to be afforded GC rights as POWs until the admin proves they’re NOT entitled to that status.
What is the evidence that anyone in Gitmo has ever blown up a civilian or beheaded a captive?
Well, based on “current usage,” the word “there” can mean “they are.” Lots of people use words incorrectly. So what?
I agree with your first point. But I’m not so sure that the latter distinction relies on much of a difference.
Conflicts aren’t fought within any pre-agreed timeframe. The participants in the Civil War didn’t know when the war was going to end. It could have lasted 1 month; it could have lasted 10 years; or it could have lasted 100 years or more. So captured soldiers that were being held until the end of the conflict were thus being held “indefinitely.”
Similarly, people captured in Afghanistan and held at Gitmo are being held “indefinitely” in the sense that we don’t know when the hostilities in Afghanistan will cease. (And for other reasons, like their home countries won’t take them back, but maybe we should leave those aside for now.) The point is that it’s possible for people to be held both until the end of hostilities, and “indefinitely.”
So presumably the same situation isn’t both “legal” and “illegal.” Unless we’re willing to allow the borders of legality to be defined by nothing more than semantics.
I never said any had. That was a hypthetical to illsutrate instnances when POW status is not given to captives.
Perhaps you could show one piece of evidence that a declaration of war is necessary for there to be a state of war.
When Taliban and Al Qaeda attack US troops in Afghanistan, and vice versa, how can that NOT be considered armed conflict? I’m just not following. How would you describe the killing that is going on in Afghanistan now, as street crime? Do you not believe that the Congress passed a lawful authorization to use the US military against those who planned or aided those who carried out the 9-11 attacks? Wouldn’t that tend to identify our opponents?
Wrong-- Congress explicitly authorized this. Do I need once again to quote the AUMF passed by Congress in 2001?
Not true. The GC only states that they must be treated as POWs if there is any question as to what their status should be. The Adminstration’s position is that there isn’t any question.
I think we need to consider two separate things here, otherwise this thread is going to spiral down into a rat-hole.
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There is the general question about the US (or any country) can and cannot do under the rules of the GC. In particular, we can consider what the US can and cannot do if it captures a known al Qaeda operative-- let’s call him Osama bin Laden. I don’t think anyone is going to say that a nation can just pick up a random civilian and declare him an “unlawful combatant”.
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There is the more specific question of whether the Bush administration has acted honorably and within the rules of the GC in all instances. I certainly don’t think they have. While I agree with the adminisrtation in principle (terrorists can’t hide behind the GC), I have major disagreements with how it put that principle into practice (torture, secrecy, judicial foot-dragging, not to mention the extremely sloppy way it seems to have determined who to detain in the first place).
Might I suggest that we discuss the first scenario so we don’t get bogged down in the details of what’s going on at Gitmo? I think that’s what the OP is trying to get at: what can a nation do, not whether the US has acted correctly or not.
That’s not exactly right either. There have been a series of Combatant Status Review Tribunals to determine if the people at Guantanamo are indeed enemy combatants as part of the process that could lead to criminal charges. One can question whether these are kangaroo courts, but one has to acknowledge that there have been detainees released as a result of the CSRTs.
But those tribunals weren’t held in order to determine whether they were POWs or not, were they? I thought the tribunals held so far were just to determine whether the detainees should be let go or not. That’s a different issue. Am I mistaken on that point?