[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.
[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.
[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:
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=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.
[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.
[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?
[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?
[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.).
[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, 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.
[QUOTE=Age Quod Agis]
The presumption of innocence and due process of law in a foreign war zone? <snip> it also violates international law.
[/quote]
Care to explain this?
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=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.
[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.
[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:
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.
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.
[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?
[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, but that’s another discussion). Harks back to the days when loot was the acknowledged end-goal of war.