Yeah, I’ve got to say, Mace, you seem to be seeing this differently than I. (How’s that for obvious!) You seem to be approaching this from the point of view that the US government does not have the legal right to execute people summarily. I have the point of view that such a right is implicit in the Geneva Conventions in the way they handle francs-tireurs.
By carving out specific circumstances under which those captured must be treated as POWs there’s an implicit assumption in the conventions that those NOT under those circumstances may NOT be treated as POWS and ARE subject to punishment including summary execution.
The specific language there that seems active to me is ‘armed forces’. It seems clear to me that those participating in an active role during conflict, including the planning and preparation, who are not a part of the armed forces would not be covered under this ruling. Even the cite you provide only claims that the Bush administration believes this rule applies to ‘detainees’. Al-Alwaki would certainly not have fit that role.
The real issue in play here is this:
The Geneva Convention has an enormous assumption regarding warfare. It purports to regulate behavior between nations at war. But increasingly war is not a matter of two (or more) nation-states in armed conflict but rather a group or groups in conflict with one or more nation-states. Without a set definition in the GC regarding such irregular warriors (terrorists, partisans, what-have-you) and what rights and responsibilities each party has there’s really no set answer to the question.
If you’ll look at my original post in this thread I merely asked if he might be considered a francs-tireur. I had to answer to that. I just was idly speculating that if he was there would be a justification for the killing. In the real world there’s no more justification needed other than the President saying ‘That guy’s a threat to the security of the United States. Fuck him.’ No one’s going to try to arrest the President. No one’s even going to cry too much about it. The world will move on and others who advocate violence against the United States will hunker down for a while.
[parenthetical aside]
As a matter of personal taste and policy I’d much prefer to see the war of terror fought this way than on the fields of Afghanistan and Iraq. Right before GWII commenced I heard a retired marine general (I think that was the service) say ‘We must educate people that if they point a weapon at a US Marine they should expect to die’. Far better that apply to the leadership and those who organize and encourage attacks than the gomers with the AKs. You want to impose a ‘chilling effect’ on these things make it hazardous to be an instigator…not just a shooter.
No, you’re misreading that. It says “Persons taking no active part in hostilities, including members of the armed forces…” The “including” clause does not invalidate the fact that the provision applies to everyone who isn’t in the fight. And as I’ve stated before, the SCOTUS has already ruled that Common Article 3 applies to members of Al Qaeda who have been detained, and surely they were not wearing Al Qaeda patches and berets.
They are not really two different things in the US form of government. Both of them exercise the war power in Art I Sec 8 of the Constitution. The only difference between the two is that declarations of war trigger various Presidential powers that an authorization does not (e.g., ability to call up unlimited numbers of reserves, various economic sanctions powers, etc). Otherwise they are exactly the same in effect: the President may use the armed forces to attack countries or groups. I see no reason why the international community would draw any distinction between a declaration of war and an authorization for the use of military force.
I cannot see that there is any basis in international law for this opinion. This may be a preferable way for the situation to be viewed, but the idea that there is a list or description of acts that “rise” to the level of war (e.g., if you do THIS to an airplane it is a crime, but if you do THAT to an airplane it is an act of war) is not the case. An act of war is whatever a country wants it to be – the US did not view the seizure of the US Embassy in Tehran as an action requiring war, but North Korea could decide that the South Korean president looking at them funny is sufficient trigger for invasion and the nuking of Seoul.
I think it is absurd to call an attack by the US Government on people belonging to an organization designated by Congress as an enemy that may be attacked with the US armed forces as being not an act of armed conflict. It’s like saying that I am eating a patty of ground beef that is grilled and put with cheese in the middle of a bun with ketchup and a pickle… BUT IT’S NOT A HAMBURGER!!!
But with that caveat that the question is absurd, if it is indeed the case that the President illegally ordered the killing of a person (citizen or no), the first logical step is that Congress may choose to impeach and convict for violating US law.
Everyone captured in a war is subject to the Geneva Conventions. Agree? Those captured are roughly GC “civilians” “POW’s” or non-POW combatants (whatever you want to call them- say, rebels, unlawful combatants, irregular, whatever).
The Geneva Convention relative to the Treatment of Prisoners of War is 99% for POW’s. It goes through who can be a POW and their required treatment (state v. state war requirement, what they have to be wearing if they are not part of regular the armed forces, ect. and also what rights they are entitled to - tons of important and also ticky tack stuff). However, that other 1%, Article 3, is for everyone not a POW (they dont meet the requirement, either not a state v state war or they don’t meet Art 4 requirements). They are not POW’s. However, they still get minimum protection and must be treated humanely.
It’s an either or scenario (either your a POW and get all of the GC, or you’re not a POW and you get Art. 3). This was confirmed long after everyone else played by that either or rule by the US in Hamdan v. Rumsfeld and was the crux of that case.
If you’re not a combatant, then you’re a GC Civilian and they get protections, too.
All of it protects against summary execution. duh.
Surely you acknowledge Declarations of War exist (well, you know, long ago when we used them). And that we are not formally “declaring war” when we authorize it. A “declaration of war” triggers the Geneva Conventions, an authorization does not. They are two separate things domestically and internationally. So whether we are currently in an armed conflict depends on what’s happening between AQAP and US (or possibly Yemen/US v. AQAP).
Well, we know a person can only be a combatant in an armed conflict. I hope we know that an authorization, standing alone, does not instantly create an armed conflict. So what is an armed conflict exactly? Or to use your example, when do the facts come together to form a hamburger…is two pieces of bread enough to be called a hamburger? No. Bread and mayo? Eh. Probably need some meat, right (and none of that vegan meat)? Is an attempt to blow up an airplane and a drone strike* two pieces of bread or bread with meat? So yea, you have to look at it like that.
No, there is not magic list, but it is a question of fact that can have wildly differing views.
*There’s more. And for the record, I agree with you.
That is not right. The GC states: “… the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” Common Article 3 also states, “In the case of** armed conflict not of an international character** occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions…”
For some reason, there is a myth out there that if war is not declared, the GC do not apply. That is factually wrong and completely at odds with the plain text of Common Article 2 and 3.
Disagree. See the GC quote above, and also these quotes from the Army Field Manual:
No, the specific language there is “including members of armed forces”. You are reading it as if it said “only members of the armed forces”. It apples to everyone.
Well, that’s sort of the argument Bush tried to make. As already noted, the SCOTUS disagreed. The GCs are quite specific that POWs must be treated in certain ways, and anyone else captured doesn’t get all the same protections, but they must be treated humanely. Again, I can’t imagine a definition of “humanely” that includes summary execution.
I’m not buying that cite from wikipedia, but if you have one from the GCs themselves that explicitly outlines when summary execution is allowed, I’d like to see it.
I don’t think there is anyone who would think that an authorization for the use of military force is any different in effect than a declaration of war, to the degree that international humanitarian law would apply in cases of declared war, but not of authorized force.
Trying to draw a distinction between those two documents would be like saying that the GC would apply in the case of “armed conflict,” but not in the case of “an international kinetic police action.” Nobody is going to be fooled by this kind of weasel wording.
In a word, no. To give him his due, Obama has pulled the trigger on two well-known terrorists (well, authorized pulling the trigger). No President should ever hesitate to do so.
I disagree. The text of those documents show otherwise. Everything I’ve learned says otherwise. Until you show me something that interprets “declaration of war” to mean more than the text implies, it means a formal declaration of war.
It’s not weasel wording, it is applying 2011 realities on an old document (GC) formed before the UN Charter (after which formal declarations of war become outdated). Regardless, you can only formally declare war against nations, not terrorist organizations, and especially not AQAP who is not even named in the authorization. And we never served them with notice of our authorization. It has none of the familiar trappings associated with declarations of war and the purpose of putting the other side on notice.
I think it is fairly safe to say that customary international law has done away with the requirement of formal notice of war, regardless of the Hague Conventions. But in this case, you are arguing both that a state cannot declare war on a non-state actor, and criticizing a state for not giving notice of a declaration of war to the same non-state actor. I think you have to pick a side and stick with it.
ha, is that what I’m arguing? I’ve gone down the rabbit hole pretty far.
I think the original point was only a formal declaration of war, the single act of signing that document, will trigger an armed conflict. If that’s not done, then an armed conflict is a question of fact determined by the intensity of the actual fighting involved. Since you cannot formally declare war against a non-state actor (even through this authorization as you claim), then it must be determined by the facts of the fighting. (I’m not saying you can’t authorize and then go be in a war against a non-state actor, of course).
Now I think we’re back to what exactly is a hamburger…but we’re clear, I understand you’re side.
