13-Year Old Vows to Honor Geneva Convention in World War Two

Despite the minor fact that the majority of the Geneva Conventions did not exist in World War II, a chubby 13-year-old has convinced his parents to allow him to play "Call of Duty" on the conditions that he honors the guidance contained in the 1949 agreements.

This kid's parents think they're being responsible; in fact, they're merely showcasing their ignorance. It's quite impossible to break any Geneva Conventions in the game; characters have no chance to torture, execute prisoners, or launch attacks against civilian populations, although they get to witness those acts in graphic cinematic sequences.

The scoundrel's only possible chance to tread a fine line is to fire a finishing shot into an already mortally wounded opponent; and this would probably be justified by the fact that many of those opponents will planning to make a "last stand" attack where they draw a pistol and blaze away until they run out of ammunition, or until they get shot again.

Still, gory and realistic though this game is, it's hardly an educational training ground for learning the nuances of International Humanitarian Law. What it really represents is an opportunity for out-of-shape American youth to exercise their bloodlust without endangering themselves.

If young Evan Spencer really wants to learn something about war, there's plenty of hot-spots in the world where another teenage meat-puppet could make themselves useful as a bullet sponge.

What do you think, Dear Readers? Is ol' Cleitus being too hard on today's callow youth? Is it in fact, the reverse - not that we have too many gratuitously violent games and movies here, but not enough over there? Would Chechens and Russians, Azeris and Armenians, Serbs and Kosovars, Israelis and Palestinians be less likely to fight if they could just sit down around an X-Box and kill electronic simulcrums of each other?

Rules for Psychotropic War?

Foreign Policy reports sardonically on the DOD's research into cognitive enhancers for warfare in this article, entitled "This is Your Brain on War."

Could pills one day replace bullets in an army’s arsenal? It might sound like science fiction, but thanks to new advances in pharmaceuticals and neuroscience, the next generation of conflict may indeed move from the battlefield to the brain. That’s according to a recent report commissioned by the U.S. Defense Intelligence Agency to map the future of cognitive warfare.

Yep, the old "It Might Sound Like Science Fiction but..." we seem to be hearing that about most new weapons in the US arsenal: nonlethals, autonomous weapons, and now psychotropic drugs or cybernetic technology designed to give militaries an edge.

Combat in years to come, according to the report, will be dramatically influenced by breakthroughs in neuroscience that can be adapted for defense purposes. These developments might involve improving a soldier’s ability to process information with chemicals that alter brain chemistry or computer hardware that interfaces directly with the brain... The U.S. military is also interested in applications that impair its enemies’ performance. These could range from neural-imaging technologies that tell interrogators when a prisoner is lying, to aerosols that destroy an adversary’s will to fight or drugs that alter their moods, even increasing their trust as they are attacked.

Should we be troubled? And if so how much? Citizens associated with MindJustice.org say yes. Yet international rules governing such weapons have yet to be written. One set of precautionary principles are already on the books however: Article 36 of Additional Protocol I to the Geneva Conventions reads:

"In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party."

In other words, governments should consider whether new weapons meet basic war law standards before developing them. The key questions to ask are whether the weapons can be controlled and used discriminately and whether they are humane or would instead cause unnecessary suffering or superfluous injury. The US has not ratified AP 1 and so is not technically required to review new weapons thus, but historically has done so nonetheless. Perhaps instead of trying to get these weapons banned in advance, activists should put the burden of proof on the government to make the case that they are consistent with the rules of war.

Defending Hamdan: An Expert Witness Ruminates

Complex Terrain Lab is currently running a very interesting symposium on the trial of Salim Hamdan in a US military commission. Known for being "bin Laden's chauffer," Hamdan was also a "test case" of sorts for the US military commission system, the White House's compromise with the Supreme Court over what to do with the Guantanamo detainees - a test many commentators have claimed the Bush Administration flunked. This summer, Hamdan was acquitted of many of the charges against him by a commission of US military officers, and sentenced to the equivalent of only five more months in prison.

CTLab's symposium opens with a series of posts by Brian Glyn Williams, a professor at UMass-Dartmouth who happened to serve as an expert witness for the defense in the tribunal. His narrative recounts not only a day-to-day view of the workings of the tribunal, but also a legal argument on which his testimony rested: that al-Qaeda in Afghanistan was not a mere "terrorist network" but a field military with attributes that should have qualified its members for POW status under the Geneva Conventions.

William's' conclusion is optimistic:

"The verdict will doubtless begin the process of rebuilding America’s reputation which has been damaged abroad by those who focus only on our faults and mistakes. While Guantanamo Bay remains a bone of contention even with close allies like the British, I believe that the Hamdan verdict will begin the process of reminding the world of what America stood for before it became defined by such terms as Abu Ghraib, Haditha, rendition, and most infamous of all, Gitmo."

More recent contributors are responding to Williams. Tony Waters is less optimistic, calling the Hamdan acquittal "lipstick on a pig." L.L. Wynn questions the assumption that the right to a fair trial in Common Article 3 of the Geneva Conventions depends on whether one wears a uniform. William Snyder wonders whether Hamdan was actually lucky to be tried in a military commission rather than a regular court. Jason Ralph asks important questions about the way that the trial reconstituted understandings of "lawful" v. "unlawful" combatancy and rightly draws our attention to the history of the term, which was not invented by the Bush Administration. His post highlights the USG's inconsistency in treating the campaign against al-Qaeda as a "war" rather than crime-fighting, yet denying that the laws of war apply. (For a different view on this, see Andrew Sullivan's recent comments at the Atlantic.) Marc Tyrell ties these same questions into an interesting discussion of world order which begins with the question "When does a non-state become a state?"

The entire forum is full of fascinating food for discussion. Unfortunately I can't figure out how to comment over there. So, if you have responses to any of the above (in particular to Tyrell's in the last sentence of the above paragraph) feel free to react here.

When is a War a War?

One of the first things you learn about the Geneva Conventions is that they only apply in situations of armed conflict. The problem is that "armed conflict" isn't really defined in treaty law, and this is one of the reasons that some have proposed updating or clarifying the rules of war to take account of new types of war.

On this point, it will be important to keep an eye on the Salim Hamdan trial in Guantanamo, Cuba and third parties' reactions to it. Hamdan's prosecution as a "war criminal" will depend on the prosecution arguing al-Qaeda and the US were engaged in an armed conflict during the period of his active involvement with bin Laden. Human Rights First reports on opposing views presented at Hamdan's trial:. The prosecution argues that the laws of war applied as soon as al-Qaeda declared war on the United States, as early as 1996, therefore Hamdan's work with al-Qaeda prior to 9/11 constitutes war crimes:

"On Monday, the prosecution debuted “The al Qaeda Plan” – a made-to-order compilation of al Qaeda propaganda videos found on the Internet and narrated by the government’s counterterrorism expert, Evan Kohlmann. The movie was made, among other reasons, in order to prove the government’s theory of when the armed conflict with al Qaeda began. The seven-part, ninety-minute video, which the government apparently plans to use in many Guantánamo prosecutions, narrates the story of the Afghan jihad against the Soviets (although it excludes any reference to U.S. support of the jihad against the Soviets), bin Laden’s activities in Afghanistan and Sudan, the USS Cole bombing, the Kenya Embassy bombings, and the September 11 attacks."

The defense argues that the start of an "armed conflict" depends on the response by a government - in short, that the Geneva Conventions would apply only after the US declared war on al-Qaeda in return, on September 12, 2001.

"Hostile acts, including terrorist attacks that take place in a non-international armed conflict (i.e., a conflict not involving two or more nations), do not automatically trigger application of the laws of war. Defense expert Geoffrey Corn, a retired Army judge advocate, former Pentagon law of war expert and now a law professor, testified that, under the laws of war, one of the critical factors that determine whether an armed conflict has begun is the response by a government to a particular attack... Corn testified that the United States’ reaction in September-October 2001 to the 9/11 attacks triggered the application of a law of war framework, and the United States thus was in armed conflict at that point with the Taliban and al Qaeda in Afghanistan."

Both these lines of argument are a distraction, I think, since they suggest that a) the "war on terror" is definitely an armed conflict, we just don't know when it started (but this is actually a topic of debate among international lawyers); and that b) if an armed conflict is occuring, Hamdan must be a war criminal. Not at all clear to me if this makes sense - Hitler's driver wasn't prosecuted at Nuremberg, he was called as a witness.

The real irony is that a government who has spent years trying to pretend the laws of war don't apply to this conflict is now trying to use them against its enemies. Perhaps the real goal is to confuse people entirely about what the laws of war are.

Hamdan Trial is Not Nuremberg

In disbelief, I heard Melissa Block call the Hamdan trial "the first war crimes trial since Nuremberg" on NPR last night. Set to correct her, I tried to Google the story, and found a rash of other, similar mischaracterizations by the media. Clearly, either US journalists are simply ignorant of the concept of war crimes, much less the history of war crimes trials, or they are engaging in some willful regurgitation of Bush Administration rhetoric. (Hmm, could it be both?)

Let's set the record straight: there have been literally thousands of war crimes trials since Nuremberg. This is because war crimes trials can take place in one of three ways.

First, a state can (nay, must) try its own soldiers for violating the Geneva Conventions. And countries, including the US, in fact do this all the time: the trial of Lieutenant William Calley for the My Lai massacre and of Army Spc. Charles Graner Jr., for detainee abuse at Abu Ghraib are but two prominent examples.

Second, a state may try captured enemy prisoners of war for violating the laws of war during an armed conflict. (But, POWs cannot be tried simply for participating in an armed conflict.) The military commission trying Hamdan may come closest to this model, except of course that the USG has declared Hamdan is not an POW.

Third, alleged war criminals may be tried by international war crimes tribunals. The first one since Nuremberg, the ICTY was established in 1993 by the UN Security Council to try soldiers accused of atrocities in the former Yugoslavia. It has completed nearly 200 trials; Radovan Karadzic is the merely the latest. Then there's the ICTY's Rwandan counterpart, which has been working to try the masterminds of the Rwandan genocide since 1994. A range of other ad hoc tribunals have been established since then to deal with conflicts such as those in Sierra Leone, Cambodia, Kosovo. War crimes trials have taken place in all of them. Finally, there is the International Criminal Court, which began its first trial of alleged war criminal Thomas Lubanga last year.

Moreover, the Hamdan trial is not even the first trial of an "enemy combatant" in the war on terror, so to characterize it as some kind of a test case is to engage in egregious historical amnesia. For instance, the trial of Khalid Sheikh Muhammad in 2006 certainly fit this description, as the attacks of 9/11 have been treated by the Bush Administration as the opening salvo in this so-called "war." And another thing. The trial of Hamdan is not really a "war crimes" trial at all, because Hamdan is not a soldier who was bound by the Geneva Conventions (war crimes, after all, are violations of the Hague and Geneva conventions, which place limits on what soldiers can legitimately do). Instead, Hamdan stands accused of complicity in terrorist activity, for his associations with al-Qaeda. Were this a conventional war, his behavior (driving bin Laden about) would be analogous at best to "abetting the enemy" as a civilian; that's not a punishable war crime, although the laws of war allow a state to detain civilians it thinks are a security risk. If as a civilian he took direct part in hostilities, he could be tried for doing so (unless he was defending his home village) but that's not a war crime; that's just basically a crime.

So what is behind the set of brazen fabrications in the trope comparing Hamdan to Nuremberg? Perhaps the Bush Administration's need to ignore the true analogy to Nuremberg that the war on terror presents... the possibility that high-ranking US officials could one day be tried for crimes against the peace and for atrocities against detainees. In fact that is what is really historic about the Hamdan case: the Supreme Court's ruling in 2006 that the USG was in violation of the Geneva Conventions itself in relation to its handling of Hamdan.

Omar Khadr: Warrior or Criminal?

NPR reported this week on Canada's response to the release on YouTube of this excerpt from an interrogation at Guantanamo Bay.



The prisoner is Omar Khadr, then a 16-year-old child soldier; the interrogators are Canadian intelligence officers. Whether this constitutes fair treatment of a child detainee or not, the bigger question in the Khadr case is put forth by Corey Flintoff during the NPR segment. This question has nothing to do with his treatment, nor with his age, but rather with his status:

"The story of Omar Khadr's capture is the story of a firefight in Afghanistan, an exchange of gun fire and after the exchange he allegedly throws a hand grenade... that sounds to me as close to the capture of a POW and as different from capturing somebody who's hatching a plot to bomb airplanes as I can imagine."

Indeed.

Arms and the Civilian

So my 12-year-old asks me out of the blue:

"So suppose you're a civilian in Iraq and you'd like to buy a handgun to protect yourself in your home. You go into the gun store and look around. You even put your hand on one of the guns, to see what it feels like. Would it be legal for a soldier in Iraq to treat you as if you are an armed combatant?"

Huh. Never really posed this question to my humanitarian law students before. (The answer would of course be no: not unless you were pointing the gun at an armed combatant. The right question is whether the gun store, in such a situation, might be a legitimate military objective.)

But her curiosity brought to my mind the US Supreme Court's landmark decision last week on second amendment rights. The court ruled that the second amendment to the US constitution protects an individual's right to own firearms (not just the right of states to form militias), which means states with gun bans will need to change course.

Common sense, I'd say - which doesn't, however, mean a) that the second amendment couldn't one day be repealed if enough US citizens were swayed by the evidence or b) that guns can't be regulated, rather than banned per se. (Just like the right to free speech is limited when it comes to things like libel or incitement to genocide).

But my daughter's question got me thinking about the implications under humanitarian law, should civil war erupt in the US as it has so many other places, of a default assumption that the "civilian" population is armed. The International Network Against Small Arms reports that in fact, 74% of small arms are in civilian hands already worldwide.

The Huffington Post summarizes reactions to the rulings, including statements by Presidential candidates Obama and McCain.

Just Because Torture is Something we Did, Doesn't Mean It's Something We Would Do.

Jake Tapper at ABCNews' Political Punch blog reports on the release of the new Physicians Without Borders report today, in which Retired Army General Antonio Taguba's preface proclaims the following:

"There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

If this seems to you like a strange thing for Taguba to say, it's probably because you recognize him as the author of the infamous Taguba Report, the US Army's initial investigation into the situation at Abu Ghraib once the prisoner abuse scandal broke in March of 2004. In it, he wrote (among other things):

"Numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees . . . systemic and illegal abuse."

Ahem, since systematic, cruel and illegal abuse of detainees during an armed conflict fall under the basic definition of war crimes, how exactly is his current statement news? And whose "doubt" is he talking about as being "no longer"? His own? Wouldn't that have been pretty much shattered by his original report? The Bush Administration's? Not judging by their reaction to the repeated attempts by the Supreme Court to rein them in.

Certainly not certain blog commenters over at Political Punch, who seem to harbor plenty of doubts. Check it out.

It's not clear to me how the legal or political environment has changed since 2004. Those who understand and are committed to the Geneva Conventions know that Common Article 3 always applies to all noncombatants, and covers the kinds of abuses at Abu Ghraib. These are the vast majority of the US public, for whom the pictures spoke for themselves and triggered justifiable outrage three years ago.

Those who care little for the letter or spirit of the law have bought the Bush Administration's 2004 position that if a detainee is not a prisoner of war, it's fine for the gloves to come off. (Even the White House has backed away from this, but the damage is done.)

What will remove doubt is the November elections, which will bring one of two men to public office, capable of genuine leadership, either of whose position on humanitarian law will be an improvement.

Norms, Shmorms? Maybe not.

In comments over at Duck of Minerva, Prof Burgos challenges us to show that international norms (especially the Geneva Conventions) "matter" - by which he seems to mean, will powerful states follow them when it's not in their interest to do so.

When I saw the Supreme Court had ruled that the USG's denial of habeus corpus rights to Guantanamo detainees was unconstitutional, at first I thought this demonstrated that such rules do matter and was all prepared to create a blog response.

Then I read this headline at Voice of America this morning: "US Attorney General Says Military Trials to Proceed."

"Mukasey told reporters in Tokyo Friday he was disappointed with the decision, because it will lead to hundreds of challenges from so-called "enemy combatants."

Then again, later in the article, the Bush Administration is quoted as accepting the decision:

"Mr. Bush said in Rome Thursday he will abide by the court's ruling but said, in his words, 'that doesn't mean I have to agree with it.' He said his administration will study the opinion and determine whether additional legislation might be appropriate."

Well, in measuring the impact of norms, the story isn't over. The question is not entirely whether a superpower will or won't try to break the rules. As Charli Carpenter writes, half the question is whether others will push back at that superpower. The human rights community and our allies have consistently done that. A second question is whether this pressure leads to any genuine response. Each time the Supreme Court has ruled against the Bush Administration, the White House has taken steps to modify its position - and has come a long way since January 2002, when it originally argued that the Geneva Conventions "don't apply" to GWOT detainees.

But what Burgos is waiting to see, I think, is whether the US will actually respond to the pushback in a meaningful way that results in protection for detainees, or will continue its search for new loopholes in the law. History will decide.

For more analysis on what the Supreme Court's ruling does and doesn't mean, Benjamin Wittes has a helpful op-ed in the Washington Post.

Slate Magazine Take Two

No sooner did I criticize Slate Magainze for not including war law in its military fix-it list, then Jack Goldsmith posts on fixing "The Laws in Wartime."
Among his suggestions:

1) "Close Guantanamo." (He doesn't address what to do with the detainees or why closing Guantanamo is preferable to simply upholding detainee rights there.)

2) "Boost Trust" (By - wait for it - making more threat information available to a public that distrusts the government for inflating threats. Question: to what classified arseal of threat data does Goldsmith have access on which to build this case?)

3) "Fix Interrogation." He thinks we can do this not by preventing the CIA from breaking the rules, but by requiring the President to "make a classified finding giving reasons why aggressive techniques are required":

"This approach would maintain the option of using lawful interrogation techniques that might stave off a crisis, while at the same time addressing legitimate concerns about... legal compliance."

Come again? Lawful interrogation techniques are already an "option"; we don't require torture warrants for them. And how would another layer of justification for wanton violations of international law address concerns about the law?

One thing Goldsmith suggests makes sense: that the US should work with its allies to clarify how to apply the laws of war to asymmetric conflicts, instead of contining to interpret international law unilaterally. There is more support than is recognized for modifying the "quaint" old rules, but to be more than just treaty noncompliance the US needs to get its allies on board.

Alan Dershowitz: At It Again

Harvard law scholar Alan Dershowitz believes that the civilian immunity norm should be revised. Instead of requiring weapons-bearers to distinguish between civilians and combatants, Dershowitz believes, treaty law should reflect "degrees of civilianality":

"You can rank people on a scale of one to 10, one being an infant baby, 10 being a grown man with a shoulder rocket about to fire. In between, there are those people who allow their homes to be used for rocket launches or storage, imams who encourage suicide bombing, people who make the [explosive] belts."

Dershowitz, who is most famous for advocating "torture warrants", is peddling his idea in Israel now, but has been making this case at least since the 2006 Israel-Lebanon war. The knee-jerk reaction is to see this as apologism for the murder of civilians, but Dershowitz' argument has some ethical merit:

"There is a vast difference — both moral and legal — between a 2-year-old who is killed by an enemy rocket and a 30-year-old civilian who has allowed his house to be used to store Katyusha rockets. Both are technically civilians, but the former is far more innocent than the latter."

But Dershowitz misreads the civilian immunity rule. It's not actually about protecting the morally innocent. If it were, civilian policymakers - the guiltiest of all in wars - would be fair game, and conscripts, many of whom are forced into the fight, would be "innocent." But the civilian/combatant distinction is not about innocence, it's about who poses an immediate military threat.

Civilians who support their troops don't count. But bin Laden would love it if that rule were changed. Then he could rightly claim that patriotic Americans are legitimate targets.

So Why Won't President Bush Sign a Bill Requiring CIA Interrogators to Follow the Same Rules Outlined in the Army Field Manual?

After all, as the CIA's public affairs officer writes in today's NY Times:

"Your 'Horrifying and Unnecessary' (editorial, March 2) cites interrogation measures that are specifically banned by the Army Field Manual, including forcing prisoners to perform sexual acts, applying electric shocks and conducting mock executions.

The implication is that those measures would be used by the Central Intelligence Agency or other intelligence services if the intelligence authorization bill is vetoed by the president. They would not. The C.I.A. neither conducts nor condones torture."

Seems like we might as well have a rules that say they can't, then. The President thinks otherwise, of course.

Think Again.

Foreign Policy Magazine's latest "Think Again" piece comes from law professor Steve Ratner, writing about the Geneva Conventions. He makes some very important points, clarifying that Camp X-Ray is legal, that Common Article 3 of the conventions applies to all noncombatants, including members of al-Qaeda, and that Conventions do allow interrogations.

However I found a few mischaracterizations as well. Regarding Guantanamo, for example, Ratner writes:

"The Geneva Conventions don't require the US to close up shop in Cuba. The rules simply insist that a working legal framework be put in place, instead of the legal vacuum that exists now."

Is there really still a legal vacuum? The US has established Combatant Status Review Tribunals to make POW status determinations, instead of simply applying or denying that status to whole groups of detainees. And it has established military commissions to try those detainees it suspects of crimes. This is all within the spirit and letter of Geneva. The problem is not that there's a legal vacuum, the problem is that these courts do not include standards measures for due process.

Here's another one:

"'The Geneva Conventions Ban Assassinations.' Actually no... Assassinating one's enemy when hostilities have been declared is not only permissible; it is expected."

OK, so it's true the Geneva Conventions don't ban assassination - the Hague Conventions do (it's considered a form of "treacherous killing"). And it's true that not all assassinations are illegal - you can hit a sitting head of state in an armed conflict, as long as he is a member of the armed forces. But assassinating civilian leaders is illegal. Ratner's conflation of "assassination" with "killing the enemy" blurs the entire distinction, I think, between lawful killing and extrajudicial execution.

Ratner also opines that the Geneva Conventions "can and do protect innocent bystanders and shield soldiers from unnecessary harm." But it's all relative. The treaties actually provide very little meaningful protection for civilians, even on paper. You need only not target them on purpose... collateral damage is perfectly fine, as long as it's "militarily necessary," which is left up to militaries to decide. This can make a genuine difference - the 88,000+ estimated civilian deaths in Iraq for a full five years, according to Iraq Body Count, are less than the damage wrought in one day over Hiroshima.

But to say that the conventions "protect" civilians is to conflate treaties with practical measures to keep civilians alive. It is weapons-bearers who protect civilians or choose not to. Whether they do this depends on whether they're properly trained, not on whether their government has signed a treaty.

Defending the Death Penalty

Not me (necessarily). The Bush Administration.

Funny that they feel that need to defend their decision to seek the death penalty against 6 Guantanamo inmates accused of various levels of involvement in the events of 9/11. After all, no international law prevents the US from executing convicts - though there may be an emergent international norm against the death penalty, the US is not bound by the Optional Protocol to the International Covenant on Civil and Political Rights. So the Bush Administration really doesn't need to bother justifying this.

Besides, the strategy being used - comparing the US military commissions to the Nuremberg tribunals - is going to backfire, because there is a significant difference and a significance similarity that doesn't work in the Bush Administration's favor.

The difference is 60-some years of international jurisprudence and the establishment of the International Criminal Court by multilateral treaty - a court which does not allow for the death penalty, even for the architects of genocide.

The similarity is the lack of due process in the two proceedings (required, by the way, by Common Article 3, Article 1(d) of the Geneva Conventions even for unlawful combatants - the Bush Administration has admitted this article applied to GWOT detainees). At Nuremberg, Nazis were executed for "crimes against humanity" - a concept that did not exist prior to the crimes being committed, so court's legitimacy was undermined by claims of ex-post-facto justice. As for the Guantanamo Six, at least one of them, Khalid Sheikh Mohammad, is known to have been tortured by the US government during interrogations, so evidence that could hang him is unlikely to be accepted by advocates of due process.

In other words, invoking Nuremberg was exactly the wrong strategy for the White House. Instead, they should have stuck to the letter of the Geneva Conventions. The conventions provide no immunity from prosecution and even execution for those who engage in political violence without formal combatant status - that is, being incorporated into the legitimate armies of parties to an conflict. The Guantanamo Six do not qualify and therefore the question of whether they can be executed is moot under international law.

It's ironic that the White House would raise this at all then, given its penchant for flouting well-established norms. In this case, the law seems actually to be on the US side. Rather, this would have been a great opportunity to demonstrate our adeherence... complete adherence... to the spirit and letter of the Geneva Conventions. Oh, but wait, there's still that due process / torture thing...

Hey, Waterboarding is Perfectly Legal!

So says the White House.

Well, at least this should clear up Attorney General Mukasey's confusion on the subject.



Cleitus, I believe the real acts depicted in this fake video would fall under "strategic" violations of the laws of war by governments rather than your "operational" violations by generals or "tactical" violations by troops in the field. Eh?

Laws of War For Dummies

My co-blogger Cleitus the Black laments the lack of reading material on the laws of war for the curious layperson. I heartily agree and shall be happy to muster a periodic post clariying some general precepts as I understand them, in between my usual rants.

For a start, while there is no decent "Geneva for Dummies" reader, a few helpful books on the laws of war for a general audience have come out in recent years and others are forthcoming. One is Michael Byers, War Law - a rather perfunctory treatment, but short and readable.

Another helpful resources is the Crimes of War website maintained by former journalists Roy Gutman and David Reiff. And then there is of course the website for the International Committee of the Red Cross.

Cleitus and I shall work at getting a "must read" list up and running on this blog. (You hear that, Cleitus?) Stay tuned.

Fuzzy Logic?

This letter, supposedly from a Corpsman in Iraq, has been making the rounds on military blogs for a bit. Interesting read.

"...It's a safety issue, pure and simple. After assaulting through a target, we put a security round in everybody's head. Sorry al-Reuters, there's no paddy wagon rolling around Fallujah picking up 'prisoners' and offering them a hot cup o' Joe, falafel, and a blanket. There's no time to dick around on the target. You clear the space, dump the chumps, and move on.

Are Corpsmen expected to treat wounded terrorists? Negative. Hey Libs, worried about the defense budget? Well, it would be waste, fraud, and abuse for a Corpsman to expend one man-minute or a battle dressing on a terrorist. It's much cheaper to just spend the $.02 on a 5.56mm FMJ. By the way, in our view, terrorists who chop off civilian's heads are not prisoners, they are carcasses. Chopping off a civilian's head is another reason why these idiots are known as 'unlawful combatants.' It seems that most of the world's journalists have forgotten that fact.

Let me be very clear about this issue. I have looked around the web, and many people get this concept, but there are some stragglers. Here is your typical
Marine sitrep (situation report): You just took fire from unlawful combatants (no uniform - breaking every Geneva Convention rule there is) shooting from a religious building, attempting to use the sanctuary status of their position as protection. But you're in Fallujah now, and the Marine Corps has decided that they're not playing that game this time. That was Najaf.

So you set the mosque on fire and you hose down the terrorists with small arms, launch some AT-4s ( Rockets ), some 40MM grenades into the building and things quiet down. So you run over there, and find some tangos (bad guys) wounded and pretending to be dead. You are aware that suicide martyrdom is like really popular with these idiots, and they think taking some Marines with them would be really cool. So you can risk your life and your fire team's lives by having them cover you while you bend down and search a guy that you think is pretending to be dead for some reason. Most of the time these are the guys with the grenade or a vest made of explosives. Also, you don't know who or what is in the next room.

You're already speaking English to the rest of your fire team or squad, which lets the terrorist know you are there and you are his enemy. You are speaking loud because your hearing is poor from shooting people for several days. So you know that there are many other rooms to enter, and that if anyone is still alive in those rooms, they know that Americans are in the mosque. Meanwhile (3 seconds later), you still have this terrorist (that was just shooting at you from a mosque) playing possum. What do you do? You double tap his head, and you go to the next room, that's what!

What about the Geneva Convention and all that 'Law of Land Warfare' stuff? What about it? Without even addressing the issues at hand, your first thought should be, 'I'd rather be judged by 12 than carried by 6.'

Bear in mind that this tactic of double tapping a fallen terrorist is a perpetual mindset that is reinforced by experience on a minute by minute basis. Secondly, you are fighting an unlawful combatant in a Sanctuary, which is a double No-No on his part. Third, tactically you are in no position to take 'prisoners' because there are more rooms to search and clear, and the behavior of said terrorist indicates that he is up to no good. No good in Fallujah is a very large place and the low e nd of no good and the high end of no good are fundamentally the same ... Marines end up getting hurt or die. So there is no compelling reason for you to do anything but double tap this idiot and get on with the mission.

If you are a veteran, then everything I have just written is self evident. If you are not a veteran, at least try to put yourself in the situation. Remember, in Fallujah there is no yesterday, there is no tomorrow, there is only now, Right NOW. Have you ever lived in NOW for a week? It is really, really not easy. If you have never lived in NOW for longer than it takes to finish the big roller coaster at Six Flags, then shut your mouth about putting Marines in jail for 'War Crimes.'

Semper fi. From A Marine."

Discuss.

Now There's an Idea.

The Federal Times reports:

"The Defense Department wants contractors to train employees and subcontractors on the laws of war before they deploy with troops abroad.

Training programs would cover international treaties, combat orders, U.S. law, military law, host nation law and third-country laws. Contractors are already required to abide by these laws regardless of whether their employees have been briefed about them.

The training will help prevent violations of the laws when contractors and subcontractors are supporting troops on the battlefield, said Shay Assad, DoD’s director of procurement policy.

DoD will accept comments on the proposed regulation until March 10."

Not clear, of course, whether training contractors in the laws of war will help much since the laws of war don’t actually cover weapons-bearers who are not members of the armed forces of a party to the conflict. Training them in how toothless and weak the rules are is likely only to provide them with an increased sense of impunity. The real question is who will prosecute them if they violate the law. As long as they face no greater penalty than termination for, say, raping civilian girls, it’s hard to see how things will change.

Guantanamo Detention Facility Marks Sixth Anniversary

Amnesty International has organized a global day of rallies in protest of the internment of over 800 so-called "enemy combatants" at the Detention Facility in Guantanamo Bay, Cuba.

What may be more significant than the calls to close the facility (because of course some of the detainees will have to go somewhere else) is the case under review at the Supreme Court over whether they have the right to challenge their detention in court.

I will have more to say about this issue in due course, but for now I'll post the follow short clip:

"War is Hard Enough Without Worrying About Being Held Accountable When You Slaughter Civilians"

So USMC Staff Sargeant Frank Wuterich had his charges reduced from murder to voluntary manslaughter this week, after leading three other US Marines in the massacre of 24 Iraqi civilians at Haditha, Iraq in 2005.

He doesn’t even deny it. But the military court that has investigated the killings has determined that they don’t amount to murder, because they were carried out “in the heat of passion.”

Well, given that this was not a premeditated massacre but a situation in which a small group of Marines followed their leader on a rampage after their comrade was killed by an IED, there may be something to be said for this verdict.

However, I would have liked to see Wuterich get the murder charge anyway, because he is completely remorseless about the incident. In an interview on 60 Minutes last year, Wuterich told the world he’d done nothing wrong – in other words, he actually believes with hindsight that the rules of engagement in a counterinsurgency operation include barging into civilian homes with guns blazing and shooting until all inside are dead. If only because he has had the gall to behave publicly as if this is / should be standard operating procedure for the US military, the military should have made a prime example of him.

Retired Major General Walter Hoffman, Former Army Judge Advocate General, disagrees with me. He discussed the decision on the McNeil News Hour, and put it in these words:

“War is difficult enough without having to look over your shoulder to see if someone is going to file charges against you for making an error, when people around you are dying, and bullets are flying in the air, and explosions are going off.”

No sir. War is difficult enough without wondering whether anyone is looking over your commander’s shoulder, expecting you to expect him to expect you to behave like a warrior, instead of behaving like a berserker.