[Ásatrúar]

The short answer is that a prisoner of war is entitled to the protections set forth in the 1949 Geneva Convention. In contrast, an unlawful combatant is a fighter who does not play by the accepted rules of war, and therefore does not qualify for the Convention's protections.

http://writ.news.findlaw.com/dorf/20020123.html
http://www.genevaconventions.org/

Alright then, are unlawful combatants protected by international law and/or should they be? The topic has come up several times before but never addressed, I think. I decided to post about it, conserning a picture of the Vietcong member being executed on the street.



Should terrorists or suspected terrorists (unlawful combatants) be executed in a war zone?

[Smith 2.0]

An example of international law in regard to Spies and Mercenaries:

Taken from Protocol I, Art. 46 of Geneva Conv.

Art. 46. Spies

1. Notwithstanding any other provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy.

2. A member of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by an adverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while so acting, he is in the uniform of his armed forces.

3. A member of the armed forces of a Party to the conflict who is a resident of territory occupied by an adverse Party and who, on behalf of the Party on which he depends, gathers or attempts to gather information of military value within that territory shall not be considered as engaging in espionage unless he does so through an act of false pretences or deliberately in a clandestine manner. Moreover, such a resident shall not lose his right to the status of prisoner of war and may not be treated as a spy unless he is captured while engaging in espionage.

4. A member of the armed forces of a Party to the conflict who is not a resident of territory occupied by an adverse Party and who has engaged in espionage in that territory shall not lose his right to the status of prisoner of war and may not be treated as a spy unless he is captured before he has rejoined the armed forces to which he belongs.

Art. 47. Mercenaries

1. A mercenary shall not have the right to be a combatant or a prisoner of war.

2. A mercenary is any person who:

(a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict; and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.



Geneva conv on 'terrorists'
(from convention IV)

Art. 68. Protected persons who commit an offence which is solely intended to harm the Occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the installations used by them, shall be liable to internment or simple imprisonment, provided the duration of such internment or imprisonment is proportionate to the offence committed. Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for depriving protected persons of liberty. The courts provided for under Article 66 of the present Convention may at their discretion convert a sentence of imprisonment to one of internment for the same period.

The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty against a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.

The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance.

In any case, the death penalty may not be pronounced on a protected person who was under eighteen years of age at the time of the offence.

[Smith 2.0]

Well I find something intuitively wrong about executions such as the one depicted in the photograph. I don't want to deviate too far from your original topic (as I think it is a relavant and very interesting one) but you could generalise this further to question the legitimacy and/or need for international law at all.

[Ásatrúar]

The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty against a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.

The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance.

In any case, the death penalty may not be pronounced on a protected person who was under eighteen years of age at the time of the offence.

Thanks smith, I was looking for this.

[Ásatrúar]

I don't want to deviate too far from your original topic (as I think it is a relavant and very interesting one) but you could generalise this further to question the legitimacy and/or need for international law at all.

Well I think you just stated a good question.

Do we need international law in these matters? Do we need new laws in these matters? Can a foreign body govern how a sovereign country wages war?

Well I find something intuitively wrong about executions such as the one depicted in the photograph.

I think it is wrong aswell. I would've taken him off the front lines and had him in a military trial somewhere. Then he would recieve his punishment after a trial. If he was innocent he should be give a chance to plee his case. Yet, I must say, that I don't know the exact circumstances revolving around this picture. Who are we to say the shooter did something wrong? We were not there, in his shoes. That man may have set off a bomb that killed many civilians, I do not know.

The point I was trying to make was that, that particual execution was legal. Was it not?

Now that Saddam has been captured, what should happen to him? What do the conventions say about leaders of countries as PoWs?

[Adrien]

Do we need new laws in these matters? Can a foreign body govern how a sovereign country wages war?

Of course we do not, and i find this principle of "international law" quite hyprocrit and sometimes even sick; for instance when two African countries are at war, and consequently in the middle of a tragic human event, what do we do? Our governments just sit here, far away from slaughters and despair, saying with an eyebrow raised "oh, come on, you two do not respect international law or the laws of war, you are not well educated, that is wrong."

I'm sorry but war is war, it's true that ethics and morals should forbid us to make certain things, but if someone must point out exactions, it's the people who are here on the battlefield like the Red Cross or whatever, but not our leaders in their cosy little offices.

[Ásatrúar]

Of course we do not, and i find this principle of "international law" quite hyprocrit and sometimes even sick.

Specifically, which ones would you do away with? I am talking about the Genève Conventions, which were not unlike the Red Cross (both took place in my homeland), they were an attempt to make war more civilized and humane. A hard and difficult goal to be sure.

I agree with you on African nations at war, and the hypocrisy of the "peace-loving" western countries. Though it isn't the conventions which are at fault, rather the people in power.

[Adrien]

Well first of all how does the Geneva convention work? Do the country have to sign it or is it something that was created by some countries and supposed to be used by everybody?

For the other so-called "international laws" it's nothing precise, it's something invoked, summoned for absolutely everything when our leaders want to play the guardians of moral and sermon the other countries.

And also when our "peace-loving" democracies are trying to make war look like something that is supposed to obey to thousands of rules, a bit like the highway code: when you violate it you'll get scolded.

War is terrible, war is tragic, trying to hide it under a politically correct code is stupid.

[Ásatrúar]

Each country signs the conventions, and apon that they are expected to abide by them.

Here is a news story I found, of Timor becoming the 191st country to sign. http://www.etan.org/et2003/june/01-7/06tbcome.htm There are 193 countries in the world.

[Smith 2.0]

International Law is a really murky term.... it is best described in practice as a set of mutually agreed 'guidelines' that states abide with; a combination of tradition and custom, and formal treaty agreements between states. Obviously the basic premise is that states do not break treaty obligations because it discredits them and hence weakens their bargaining position with other states in the international setup. (the US is so powerful there are those who believe these norms don't apply to her). Importantly, we should avoid the temptation to compare 'International Law' with municiple law, as this is an inappropriate understanding of the reality - i.e. where is the enforcement if someone breaks the law? Where is the clear-cut list of rights and wrongs? It doesn't exist... there are treaties and conventions on human rights and rules of war and on trade policies and the like, but at the end of the day they really are just guidelines, ideals, if you will, and as you say Adrien, there is so much hypocrisy about them.

War is terrible, war is tragic, trying to hide it under a politically correct code is stupid.

Definitely: Clauswitz was correct in one sense, but when you break it down to basics, I view warfare as the process in which young men and women attempt to pierce the vital organs of their fellow man with hot metal.

Can a foreign body govern how a sovereign country wages war?

Basically then, which is more important and relevant, International Law or state sovereignty? That is tonight's million dollar question...

If we are going to be rigorous about answering this question we really need to find a common definition for each of these terms... Sovereignty after all is no clear-cut concept either, you can break it down into different types for instance. (At this point I should say that my current understanding of sovereignty has been greatly influenced in particular by one of several works i've read on the subject, a fantastic book written by Stephen Kranser Sovereignty: Organised Hypocrisy )

Krasner distinguishes four basic modes of sovereignty: By interdependence sovereignty, we mean control of immigration and migration issues, and by domestic sovereignty are referring to control structures internal to the state and the effectiveness of that control. International legal sovereignty can be taken to mean the mutual recognization of other nations or international institutions or alliances, and Westphalian sovereignty refers to the domestic authority structure being the sole influence on a nation’s policy-making.

To directly quote from Krasner:

“Embedded in these four usages of the term is a fundamental distinction between authority and control. Authority involves a mutually recognized right for an actor to engage in specific kinds of activities. If authority is effective, force or compulsion would never have to be exercised. Authority would be coterminous with control. But control can be achieved simply through the use of brute force with no mutual recognition of authority at all. In practice, the boundary between control and authority can be hazy. A loss of control over a period of time could lead to a loss of authority. The effective exercise of control, or the acceptance of a rule for purely instrumental reasons, could generate new systems of authority. If a practice works, individuals might come to regard it as normatively bind, not just instrumentally efficacious.”

(Stephen D. Krasner, Sovereignty – Organised hypocrisy (Princeton: PUP, 1999) : pg.10 )

Apologies for the lack of online source, but since this is analysis rather than fact I think it should be ok? The book is here

I went into this much detail (and the scary thing is i'm just skimming the surface) to try and illustrate how complex an issue I believe this to be...

It's late, and i'm tired and could ramble on this topic for hours.... before I inadvertantly start contradicting myself or some such, Basically, in short I believe that 'International Laws' will need to be enforced if they are desired to carry any real weight other than merely being 'guidelines', or failing that, portrayed as a common good in an absolutely convincing manner. As to whether international law carries more weight than the sovereignty of a nation... a hard nut to crack for sure. The cop-out answer is 'it depends'.