Week Ten: The Geneva Conventions and Modern Status Issues

21 March 2012

Geneva Law / Principles

Remember:

• No reciprocity requirement in GC’s and APs

• CANNOT be derrogated

What Makes a Combatant

Combatants = • Uniformed?• Open Arms?• Organized?• Follows LOAC?

Does this apply to Armies, or just militia and other armed groups?

Out of Uniform, Out of Status?

See Solis at pg 221, 2nd Paragraph

NOT entitled to POW Status

If out of uniform and fighting = perfidy

Don’t follow LOAC and…

Still a POW

Geneva Conventions Today

Unlawful Combatant:• Purely descriptive term• Not an official status• Carries no special protections

We sometimes treat them like POWs under API 44.4 “protections equivalent in all respects to those accorded POWs,” but it doesn’t make them one.

Categories on an IAC BattlefieldStatus Target? POWs?

Combatant Yes YesUnlawful Combatant(Continuous Combat

Function)

Yes No (CA 3, API Article 75)

Unlawful Combatant(Non continuous combat function)

Sometimes No (CA 3, API Article 75)

Civilian No No (CA 3, API Article 75)

Civilians who engage in direct participation in hostilities at the time and place an activity takes place = not protected for duration of ….(depends on status) = Unprivileged belligerents

NONE OF THIS APPLIES IN A COMMON ARTICLE 3 NIAC

Taliban (2001)

1. IAC or NIAC?2. 4 Hague criteria or not?

– Uniformed– Open arms– Organized– Obey LOAC

• No POW status, b/c Taliban did not comply with these provisions

Al Qaeda - Iraq (2004)

1. IAC or NIAC?2. Controls territory (AP II)3. 4 Hague criteria or not?

– Uniformed– Open arms– Organized– Obey LOAC

• Ceased being IAC June 28, 2004• No POW status, b/c Al Qaeda did not comply with these

provisions

Unlawful “Enemy” Combatantsa NIAC Term

1. Non-combatants2. Who engage in acts against coalition3. In violation of LOAC4. During an armed conflict – GWOT• Includes those who are part of, OR

SUPPORTING Taliban and Al Qaeda

• 2006 Military Commission Act: Supporting = purposefully and materially supported hostilities

• (Compare to participate directly language of GCs and API)

Unlawful “Enemy” Combatantsa NIAC Term

Characteristics:– Continuous combat function– NO POW rights– No need to care about 4 Hague criteria– Get Common Article 3 rights only (maybe

APII)

Terms

Detainee: Anyone captured or seized by an Armed Force (See Solis at 225), including:1. Enemy Combatant2. Lawful Enemy Combatant3. Unlawful Enemy Combatant4. Enemy POW5. Retained Person6. Civilian (but not those held for law

enforcement?)

Terms

Enemy Combatant = ?? Solis at 226

“Lawful combatant” = oxymoron

POW Status

“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.”

**Solis: page 231

Doubt and Article 5 Tribunals

Article 5 Tribunals• New to 1949 GCs• Rebuttable presumption of status• NOT mini-trials – US uses panel of 3

• (pg 230)

What about seized, civilian clothed person who was just shooting at you?

What about guy found with det cord and AK-47 who was not obviously fighting?

Can we avoid the tedium?

• GC IV Interpretive Issues– “Object and purpose” of GC IV– The meaning of “find themselves” – Benefit-burdens principle

• Conclusions– GC IV governs the US occupation of Iraq– Operatives of the al Qaeda terrorist organization

who are not Iraqi nationals or permanent residents of Iraq are not protected persons

Goldsmith Memo

GC IV & Protected Person Status - Iraq

Geneva StatusInternational Armed Conflict

?

Q: What law applies to unlawful combatants if GC IV does not?I.e., what constitutes the minimum floor of protection they are owed?

7 Mar 11 White House Fact Sheet: New Actions on Guantanamo and Detainee Policy

Available at http://www.lawfareblog.com/wp-content/uploads/2011/03/Fact_Sheet_-_Guantanamo_and_Detainee_Policy.pdf

See also AP 1Art 45(3)

Non-International Armed Conflict?

• IHL in international armed conflict … is directly relevant because it establishes an outer boundary of permissive action. States have accepted more exacting obligations under IHL in international than in non-international armed conflicts. That is, IHL is uniformly less restrictive in internal armed conflicts than in international armed conflicts. Accordingly, if states have authority to engage in particular practices in an international armed conflict (e.g., targeting direct participants in hostilities), they a fortiori possess the authority to undertake those practices in non-international conflict. Simply put, whatever is permitted in international armed conflict is permitted in non-international armed conflict. Hence, if IHL permits states to detain civilians in the former domain, IHL surely permits states to pursue those actions in the latter domain.

~ Ryan Goodman, Detention of Civilians in the Armed Conflict with Al-Qaeda

Detention of Civilians in the Conflict with Al-Qaeda

Ryan Goodman, Detention of Civilians in the Armed Conflict with Al-Qaeda

• “… construing what is “necessary and appropriate” under the AUMF requires some “translation,” or analogizing principles from the laws of war governing traditional international conflicts.”

~ State Dept Legal Advisor Harold Koh, 24 Mar 10

Koh on Detention AuthorityDetention and Internment

• “… the various judges…have accepted the overall proposition that individuals who are part of an organized armed group like al Qaeda can be subject to law of war detention for the duration of the current conflict. In sum, we have based our authority to detain not on conclusory labels, like "enemy combatant," but on whether the factual record in the particular case meets the legal standard. This includes, but is not limited to, whether an individual joined with or became part of al Qaeda or Taliban forces or associated forces …”

~ State Dept Legal Advisor Harold Koh, 24 Mar 10

Koh on Detention AuthorityDetention and Internment

MCA of 2009

Detention and Internment

• Geneva Law– Protects all persons on the battlefield in the hands of the enemy– Nature of protection: 1) Respect, 2) Protect, 3) Humane treatment– Geneva Analysis: 1) Right type of conflict?; 2) Right type of person?

• POW Status in the Law of War– Who merits POW status connected to who is a privileged combatant– Four traditional criteria PLUS must be a nexus to a party to the conflict – AP I waters down distinction criteria to incentivize guerilla compliance

with the law of war; AP I combatant criteria is NOT CIL• Non-International Armed Conflict?

– It’s appropriate to look to IAC by analogy in analyzing detention in NIAC– What is permitted by law regulating IAC is also permitted in NIAC

because sovereignty less constrained domestically• Solis (page 239): “There’s a lot of life left in this suit.”

Concluding Observations

Backup Slides

Hague ConventionWho is a Combatant / POW?

The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

1. To be commanded by a person responsible for his subordinates;

2. To have a fixed distinctive emblem recognizable at a distance;

3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and

customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination “army.”

~ Hague IV, Article 1 (1907)

Third Geneva ConventionWho is a Combatant / POW?

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:(a) that of being commanded by a person responsible for his

subordinates;(b) that of having a fixed distinctive sign recognizable at a distance;(c) that of carrying arms openly;(d) that of conducting their operations in accordance with the laws and

customs of war.(3) Members of regular armed forces who profess allegiance to a government

or an authority not recognized by the Detaining Power. ~GPW Art 4

• (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

• (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

~GPW Art 4

Third Geneva ConventionWho is a Combatant / POW?

Civilian = Everyone ElseWho is a Combatant / POW?

1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 (A) (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.

~ AP I, Art 50(1)

• “Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. . . . [they are] generally deemed not to be entitled to the status of POWs, but to be offenders against the law of war subject to trial and punishment by military tribunals.”

• “Unlawful belligerency is the gravamen of the offense.”

In re QuirinGC IV & Protected Person Status