# Could the designation "unlawful (or enemy) combatant" be used against all rebellions? **URL:** \ **Category:** Great Debates\ **Created:** [July 12, 2006, 9:35pm UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243 "2006-07-12T21:35:28Z")\ **Posts on this page:** 15\ **Page:** 3
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 13, 2006, 11:47pm UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/41 "2006-07-13T23:47:30Z")
[QUOTE=John Mace] If they prove they deserve to be a POW, they can be. [/QUOTE] 😕 How would they do that? Cooperating with their captors is out of the question; a good POW never gives up anything but name, rank, and serial number, and spends his entirely captivity trying to devise an escape. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 13, 2006, 11:51pm UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/42 "2006-07-13T23:51:16Z")
[QUOTE=Lemur866] In WWII the Germans treated captured Allied soldiers as per the Geneva Convention
 [/QUOTE] Maybe as a general rule, but there were some gross violations, especially in instances where the Allied POWs were Jewish. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 13, 2006, 11:57pm UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/43 "2006-07-13T23:57:05Z")
[QUOTE=BrainGlutton] 😕 How would they do that? Cooperating with their captors is out of the question; a good POW never gives up anything but name, rank, and serial number, and spends his entirely captivity trying to devise an escape. [/QUOTE] Well, maybe they’ll have to be a “bad” POW. But they don’t have to cooperate in terms of giving up tactics used by their side; what they have to do is to establish that they actually fall into one of the designated POWs categories per the GC: > [@](#): > > ARTICLE 5 > > The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. > > Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. If they don’t want to “cooperate” in that way, I guess that’s their perogative. But I don’t want to hear any complaints about us not designating them as POWs. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 14, 2006, 12:19am UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/44 "2006-07-14T00:19:39Z")
[QUOTE=Giles] Another scenario – far more hypothetical. The president of the U.S. is visiting South Korea, and is being protected (with the permission of the South Korean government) by CIA agents in civilian clothes. A unit of the North Korean military attacks, several CIA agents shoot back defending the president, but ae captured by the North Koreans. Can North Korea lawfully deal with those agents as “francs-tireurs”? [/QUOTE] Not without claiming NK is sovereign even on **South** Korean territory, which it never has AFAIK (it’s not like Taiwan and China), and which nobody outside NK would even be tempted to take seriously in any case. Furthermore, government agents do not fall within the definition of _Francs-tireurs._ There is just no way to equate them with partisan guerillas. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [July 14, 2006, 12:20am UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/45 "2006-07-14T00:20:39Z")
[QUOTE=John Mace] Well, maybe they’ll have to be a “bad” POW. But they don’t have to cooperate in terms of giving up tactics used by their side; what they have to do is to establish that they actually fall into one of the designated POWs categories per the GC: [/QUOTE] And when will they be given the opprtunity to do this? It’s OUR burden to prove they are NOT entitled to protection either as POWs or as civilian non-combatants, not theirs to prove they ARE. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 14, 2006, 12:21am UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/46 "2006-07-14T00:21:31Z")
[QUOTE=John Mace] Well, maybe they’ll have to be a “bad” POW. But they don’t have to cooperate in terms of giving up tactics used by their side; what they have to do is to establish that they actually fall into one of the designated POWs categories per the GC: If they don’t want to “cooperate” in that way, I guess that’s their perogative. But I don’t want to hear any complaints about us not designating them as POWs. [/QUOTE] :dubious: How about complaints of lack of access to a “competent tribunal” to determine their status as the GC requires? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 14, 2006, 12:26am UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/47 "2006-07-14T00:26:04Z")
[QUOTE=John Mace] Well, that’s just one of any number of technicalities that can get a criminal off the hook. [/quote] :rolleyes: It’s **all** technicalities, **John.** The statute the suspect is accused of violating is just as much a technicality as anything in the Bill of Rights, or in the bag of tricks of either the prosecuting or defense attorney. [QUOTE=John Mace] The system needs to be fair to those captured so we don’t just sweep innocent people off the street, but it needs to be pragmatic enough to recognize that in a war (or war-like situation) we are not able to be squeaky clean on the gathering of evidence. [/QUOTE] :dubious: We believe in the presumption of innocence and due process of law because of our deeply held moral and political values, and also because of practical policy considerations (e.g., if O.J. is denied a fair trial, so might **you** be, sooner or later). How do any of these apply any less in a war zone (where we are asserting some kind of **lawful** authority) than on our own soil? ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [July 14, 2006, 12:40am UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/48 "2006-07-14T00:40:34Z")
[QUOTE=BrainGlutton] :dubious: We believe in the presumption of innocence and due process of law because of our deeply held moral and political values, and also because of practical policy considerations (e.g., if O.J. is denied a fair trial, so might **you** be, sooner or later). How do any of these apply any less in a war zone (where we are asserting some kind of **lawful** authority) than on our own soil? [/QUOTE] The presumption of innocence and due process of law in a _foreign war zone_? Are you kidding me? Leaving aside the fact that such a policy would make our military horribly ineffective (“You shot an enemy soldier who was shooting at you? _Without a trial before a jury of his peers?_ And yes, you took those intelligence documents from the enemy bunker, but _you didn’t have a warrant_.”), it also violates international law. A nation is generally not entitled to enforce its own laws on foreigners in foreign lands. And I’m pretty glad for that, since I don’t really like the idea of being subject to Saudi Arabian law (no religious freedom, death penalty for homosexuals, etc.). ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 14, 2006, 12:43am UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/49 "2006-07-14T00:43:01Z")
[QUOTE=Tastes of Chocolate] **BrainGlutton** , you have hit on the group of people that I’m trying to ask about. Francs-tireurs. Or rebels, freedom fighters and revolutionaries. Scene I - future big European conflict Pierre’s country has been invaded by a neighboring country. Pierre, neither a past nor a current member of his country’s military, joins the underground movement. He carries a gun, and engages in activities designed to kill, maim and impede the invading army. Scene II - mythical colonized country Fred, local resident, and his friends, decide that they no longer wish to be a colony. They organize a rebel army and wage war on the troops of the legitamate colonizing government, trying create an independant country. In both of these cases, we have a fighter, who is not a member of a internationally acknowledged country’s militia, fighting against an army belonging to a government that has control (legally or not) of the area. [/QUOTE] Your use (intentional or not) of the word “militia” rather than “military” in the last paragraph reminded me of the U.S. [“unorganized militia” statute,](http://boards.straightdope.com/sdmb/showthread.php?t=243033) which defines all able-bodied male citizens between the ages of 17 and 45 as members of the U.S. “militia” automatically. This statute has never been invoked by the government for any purpose AFAIK, there seems to have been no case law construing it, and nobody in the linked thread could confidently explain why it is on the books in the first place. But now I think I can guess at least one reason: If part of the U.S. were temporarily occupied by a foreign power, and partisans on that territory were captured and executed, and the U.S. ultimately won the war, then enemy officers charged with a crime for executing the partisans would not be able to claim in their defense that the partisans were _Francs-tireurs_ and therefore could be executed lawfully under the (pre-1949) rules of war. Legally authorized militia members != _Francs-tireurs._ ---
**Author:** ![Tastes\_of\_Chocolate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tastes_of_chocolate/32/3232_2.png) [@Tastes\_of\_Chocolate](https://boards.straightdope.com/u/Tastes_of_Chocolate)\ **Post date:** [July 14, 2006, 1:58am UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/50 "2006-07-14T01:58:06Z")
[QUOTE=Age Quod Agis] The presumption of innocence and due process of law in a foreign war zone? \ it also violates international law. [/quote] Care to explain this? > [@](#): > > A nation is generally not entitled to enforce its own laws on foreigners in foreign lands. And I’m pretty glad for that, since I don’t really like the idea of being subject to Saudi Arabian law (no religious freedom, death penalty for homosexuals, etc.). Doesn’t every invading army do exactly this? Any combatant (legal, illegal, purple or green) detained by an invading army is being subject to the laws or orders of the invader. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [July 14, 2006, 3:07am UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/51 "2006-07-14T03:07:36Z")
[QUOTE=John Mace] No. If they prove they deserve to be a POW, they can be. [/quote] :rolleyes: Yes, of course. I’m _sure_ we’ll give someone we’re holding without trial and torturing the opportunity to do that. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 14, 2006, 3:22am UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/52 "2006-07-14T03:22:31Z")
[QUOTE=Tastes of Chocolate] Doesn’t every invading army do exactly this? Any combatant (legal, illegal, purple or green) detained by an invading army is being subject to the laws or orders of the invader. [/QUOTE] Of course, but not always according to the invader’s whim of the moment. If the invader is from a country and culture that takes the “rule of law” seriously, that involves taking into account considerations that might not obviously be in the invader’s political, ideological, strategic or economic interests. **If.** ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [July 14, 2006, 3:45am UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/53 "2006-07-14T03:45:00Z")
[QUOTE=Tastes of Chocolate] Care to explain this? [/quote] I thought I did. See the first sentence of the next paragraph that you quoted: “A nation is generally not entitled to enforce its own laws on foreigners in foreign lands.” It’s a matter of jurisdiction. But don’t take my word for it. Here’s [The Master](http://www.straightdope.com/mailbag/mlawofsea.html): > [@](#): > > Jurisdiction describes the limits of the legal power of a nation (international lawyers call them States) to make (prescriptive jurisdiction), apply (adjudicative jurisdiction), and enforce (enforcement jurisdiction) rules of conduct. One basis of jurisdiction is territory–a State can make and enforce laws in its own territory. The confusion arises from the assumption that this is the only basis of jurisdiction. It isn’t. There are five: > > (1) The territorial principle, which we’ve already covered. > > The other categories are forms of extraterritorial jurisdiction: > > (2) The nationality principle, also sometimes called the active personality principle. . . . The nationality principle says that states have the right to regulate the conduct of their nationals. One example of this principle at work is section 4 of the Indian Penal Code, which says, “The provisions of this Code apply also to any offence committed by (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be.” Another example is the U.S.'s application of its civil rights laws to Americans employed abroad by American employers. > > (3) The passive personality principle, which is jurisdiction based on the nationality of those injured by the conduct. This kind of jurisdiction is controversial. An example is 18 USC §7, a statute by which the U.S. asserts jurisdiction “[a]ny place outside the jurisdiction of any nation with respect to an offense . . . against a national of the United States.” > > (4) The protective principle. According to Amnesty International: > > National law in most states permits courts to exercise jurisdiction over conduct by persons abroad which harms the national–particularly the security–interests of the forum state in violation of its own national criminal law (protective or security principle or compĂ©tence rĂ©elle ou compĂ©tence du protection). This principle has been used to prosecute national security offences; currency offences; counterfeiting currency, stamps, seals and emblems; desecration of flags; economic crimes; forgery, fraud or perjury in connection with official documents, such as passports and visas; immigration offences and political offences. > > (5) Universal jurisdiction. According to Henry Kissinger, “the doctrine of universal jurisdiction asserts that some crimes are so heinous that their perpetrators should not escape justice by invoking doctrines of sovereign immunity or the sacrosanct nature of national frontiers.” . . . So the reason the US government can’t prosecute Dutch citizens for smoking weed in Amsterdam is because the US doesn’t have jurisdiction. On the other hand, the US can’t prosecute a foreign soldier for killing an American soldier because that’s prohibited by the Geneva Conventions. Or at least it will if the Geneva Conventions apply. > [@Tastes of Chocolate](#): > > Doesn’t every invading army do exactly this? Any combatant (legal, illegal, purple or green) detained by an invading army is being subject to the laws or orders of the invader. Nope. Not according to the Geneval Conventions. I think you may be using the word “invading” when you mean “occupying.” If you take over the land, set up a government, and institute laws, well, of course you can establish whatever laws you want and then hold the citizens liable for violations of that law. But then that’s neither a battlefield, nor a foreign land, nor are you enforcing those laws against foreigners. In other words, it’s a completely different situation than what **BrainGlutton** was talking about. And the Geneva Conventions talk about that. Seriously, you should check out the Geneva Conventions. They’re deal with a lot of situations. ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [July 14, 2006, 3:52am UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/54 "2006-07-14T03:52:19Z")
[QUOTE=BrainGlutton] Of course, but not always according to the invader’s whim of the moment. If the invader is from a country and culture that takes the “rule of law” seriously, that involves taking into account considerations that might not obviously be in the invader’s political, ideological, strategic or economic interests. **If.** [/QUOTE] Sure. Most invading powers are extremely gracious and easygoing with the populations of nations that they just conquered. [/sarcasm] Don’t read much history, I guess? And what, pray tell, were you implying by your statement? Are you suggesting that the US has subjected the Iraqis to its rule by whim? If so, what does that mean, and what are you basing it on? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 14, 2006, 7:50pm UTC](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243/55 "2006-07-14T19:50:20Z")
[QUOTE=Age Quod Agis] And what, pray tell, were you implying by your statement? [/QUOTE] Merely responding to **Taste of Chocolate’s** implied assumption of an “anything goes” rule in any territory being invaded or occupied. But yes, the U.S. has not been living up to its own rule-of-law standards, see Abu Ghraib and Guantanamo Bay for starters. Also the (anti-)labor legislation, etc., decreed and the no-bid reconstruction contracts let by the Coalition Provisional Authority (which, as it turns out, [never existed,](http://boards.straightdope.com/sdmb/showthread.php?t=304863) but that’s another discussion). Harks back to the days when loot was the acknowledged end-goal of war. [Previous page](https://boards.straightdope.com/t/could-the-designation-unlawful-or-enemy-combatant-be-used-against-all-rebellions/364243.md?page=2)