Let’s say that someone was a Taliban or Al Qaeda affiliated insurgent fighter in Afghanistan sometime in the last decade. They decide that they’ve had enough of fighting and want to surrender, approach an American patrol unarmed with hands held high.
What happens next? I’m assuming that they’re searched then taken to a holding facility to be questioned. What’s in the immediate future of our surrendering insurgent? When can he go about his business freely? Does the Geneva Convention apply to him?
I Googled, but found only accounts of insurgents taking prisoners rather than being taken prisoners.
The holding facility you describe makes a determination on whether he is of value or not. If he is a small fish or there is no clear evidence that he is a bad guy, they release them to the Afghan security forces and let them deal with it. If he is a bad guy and too dangerous to release, he gets moved to an internment facility in Bagram. Then he sits there in Jihad U while they wait for the Afghan legal system to prosecute him. A board of senior officers convenes every few months to review their prisoners and see if any of them can be paroled. This facility got handed over to the Afghans, IIRC, so I don’t know what the current system is. They probably give them pizza and back rubs or something.
As for the Geneva Convention thing, the answer is “sorta.”
Insurgents are what the LOW defines as “Unlawful Combatants.” That is, they do not wear a recognizable uniform, do not openly carry weapons, etc. The short of it is that it is unlawful for a Soldier to pretend to be a civilian because this leads to atrocities, civilian casualties and the like… which is exactly why the Taliban does it. Also, kind of reminds me of some Russians we’ve heard about recently…
Anyway, back to the point: Because the Taliban is a disorganized non-state terror organization, he cannot be considered a “Lawful Combatant.” Unlawful combatants have fewer protections than Lawful Combatants, most critically in that they can be tried as criminals. Many of them will spend at least a little time in Afghan jails.
Now here’s where it gets stupid… In the past, a certain criminal President made the argument that Unlawful Combatants had no rights and therefore it was okay to torture them and stuff like that. Later, they fixed this by drafting a new policy that says all detainees will be treated with the same protections as a Lawful Combatant (barring only the prosecution thing) so you are no longer allowed to water-board them or anything. (I’ve never seen anyone torture a detainee, ever.) So in that sense, yes they do receive certain considerations as POWs.
Now I’m not sure what you mean by “stateless,” but I will say that renditions are a big deal. Part of the reason we still have detainees in GITMO is because none of their home countries are willing to take them back. We also have policies against transferring detainees to countries where they will be tortured or killed, or even transfer to an Afghan prison where torture has been documented. So if a detainee cannot be extradited to his home country, for whatever reason, the Afghan authorities have to choose between parole (read: released) or letting him rot in Afghan jail until… I don’t know… he “escapes” or something.
Thanks for the detailed reply, Chihuhua. By ‘stateless’, I mean not fighting for a country or recognised government but for some organisation that the US may find itself engaged in active combat with (like the Taliban or al Qaeda for instance), I don’t know if that was the right word hence the inverted commas.
To answer Keeve quickly; asylum of a sort I guess, asylum from combat. Someone in one of our modern warzones fighting Americans who figures that it’s not worth getting killed by them and throws his AK down and hands up (admittedly I’ve no idea how often, if at all, this happens although I don’t think it outside the realms of possibility).
“Stateless” usually means something else: a person who is not recognized by any country as one of their citizens. Presumably your Taliban fighter would be claimed as a citizen by Afghanistan.
I assume that policy you refer to, like the one against waterboarding, stress positions which cause arthritis, etc. - i.e. torture - is recent.
Note that despite Mr. Arar receiving a settlement of $10M and apology from Canada, he is still on the USA no-fly list and they insist they did not make a mistake, he is a terrorist, and if he wants to sue he can’t because the details are classified and can’t be discussed in court.
Basically, the only way a person would be stateless would be exceptional circumstances -
-they cannot be identified to any certainty to determine country of origin. Hard to do, especially if they talk (accents tend to narrow the possibilities) or are arrested with others who share what they know of the person’s origin.
-there is some peculiarity of law that their country of origin no longer recognizes their citizenship. IIRC this applied to some countries (was it the Ukraine?), where people who left a while ago and have not maintained ties are “disconnected”.
There have been cases of illegal immigrants coming into Canada who shred and flush their passports before landing, to make it harder for the government to positively identify them. China, for example, once refused to take back criminals from Canada citing insufficient proof of their Chinese citizenship identity. (Negotiations ensue…)
So the answer is obvious. If the person cannot be unloaded eventually on a reliable home country who will curtail their activities, they become Guatanamese until a better option comes along. For those in Afghanistan that don’t have enough intel to make Guantanamo an attraction, I suspect eventually they will all end up guests at Kabul Club Fed when the Americans leave. At that point it might incentivize them to reveal their home country.
This is correct. Our former criminal-in-chief took some unacceptable liberties, and it is biting us in the ass. For example, there are people the CIA extradited to Libya, got tortured, and are now part of the post-Qaddaffi government. Oops.
On the other hand, I was part of a team in Afghanistan that had to inspect and re-train facilities that the UN had accused of torture. Otherwise, we were forbidden to give them a prisoner. I can name one instance when a US Soldier threatened a detainee (he was quickly fired), but I can name multiple instances when US Soldiers saved detainees who were being tortured by the Afghan security forces.