I'll jump in here with my profound that a legal check/balance worked. The system that BushCo dumped and re-wrote specifically to deal with these guys cannot legally touch them. Not one person being held at Guantanamo is designated an "unlawful enemy combatant". That said, the courts have been clear: the Cuban gulag is legal and the POW's can be held there indefinitely.

That said, I don't know how to deal with them. There is doubt that many of these prisoners have done ANYTHING that could be tried under US law, and it's clear that BushCo cannot even craft a kangaroo court system that CAN deal with them.

As I see it, there is one HUGE problem with trying them under international law. It's a problem of perception. The US government does not generally accept international law as being legitimate. How can they now turn around and attempt to apply it to their "enemies"?

Not being a legal eagle, a sparrow or lowly cow bird for that matter, I try to avoid making implications as someone who has more time to review law texts can jump all over me. However from a purely logical POV, I question the validity and correctness of the mere existance of the Guantanamo prison. It should be simply a POW prison in the area of either the combat zone where the people are to be tried under that nations laws (and no, the US cannot claim that the entire world is a combat zone because frankly, no-one is bombing people in Greenland, Cuba, Iceland etc..) or on US soil (and no, sorry, Guantanamo really doesn't count, or shouldn't).

On the other hand, I distinctly remember basic training in the infantry when we were told in hushed tones that prisoners slow you down, tie up your people to guard and protect them, eat your food and generally make a cluster **** of your operations... "so don't take prisoners"..

As the US has a whack of people in Guantanamo, it makes sense that they follow international law, however unpleasent it may taste to do so.

Alan I think you are attempting to address two completely separate issues here:

1) Should the Canadian government seek fair treatment and punishment for Canadians charged or implicated in crimes abroad? Sure.

2) Should non-uniformed irregulars be extended the same protections as uniformed servicemen / women? In some cases, maybe.

The problem with treating irregulars the same as uniformed combatants is that uniformed combatants are expected to exercise a high degree of discretion and intelligence in their combat practices, whereas non-uniformed partisans face no such limitations. The professional soldier agrees to abide by the laws and customs of war but the irregular is under no obligation to do so. The professional is now expected to accept the risk of attack from civilians while never exposing civilians to such risk. This is not a state of affairs that makes professional soldiers happy.

Partisans have been around for ages -- since Biblical times, really. And the response to being caught was generally capital punishment. In the United States, the Lieber Code of 1863 is the first codified law to address the status of legal combatants. The Confederacy liked to send saboteurs, dressed as civilians, behind enemy lines to damage Union facilities. They also demanded that the Union treat those caught in such acts as ordinary combatants, an idea not universally well-liked by the Union army. Ultimately, Lincoln and a committee decided that unconventional forces would be divided into two categories, prowlers and partisans. Since the prowlers' primary activities were theft, murder and sabotage, they were denied PoW combatant consideration. The partisans were granted it, provided that they abided by the laws of war.

In the international realm there was the Brussels Conference of 1874, driven by the Franco-Prussian War of 1870-1. The French fielded <i>francs-tireurs</i>, snipers who harassed German troops and sabotaged facilities. Their "uniform" was a blue shirt, badge and cap, near-identical to the everyday dress of ordinary French workers. The Germans responded with massive reprisals against nearby towns, and thus the Brussels Conference focused mainly on regulations to distinguish civilians from combatants. The idea was to make soldiers and civilians distinct, and thus minimise hostilities against civilians. The Lieber Code, in contrast, was concerned with protections for designated combatants.

The 1874 Brussels Conference did set some regulations for the appearance of combatants, which were included in the 1899 and 1907 Hague conventions, and the 1929 Geneva Convention:

<blockquote><i>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;
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." The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article I, shall be regarded as belligerents (LEGAL) if they carry arms openly and if they respect the laws and customs of war.</i></blockquote>

Problems really began with the 1949 Geneva conventions as they sought to protect the activities of WW2 partisan movements, which in essence gave partisans special privileges to kill and then hide amongst the civilian populace. The 1977 adoption of Protocol I to the 1949 Geneva conventions watered down the definition of legal belligerent to and incredibly low level:

<blockquote><i>Combatants are obliged to distinguish themselves from civilian populations while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities, an armed combatant cannot so distinguish himself, he shall retain his status as a conbatant, provided that, in such situations, he carry his arms openly:
(a.) during each military engagement; and
(b.) during such times as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.</i></blockquote>

It's worth noting that the US is a signatory of sorts to the Protocol, but it was never submitted to the Senate for ratification and thus they are not technically bound to observe it.

If we continue to make it militarily advantageous to act as a partisan, and continue to blur the lines between partisans and civilians, then we are going to reap more civilian casualties. I would prefer that legal combatants behave according to the pre-1977 laws and customs of war, and if they do not, then they ought to be executed as illegal combatants (i.e. war criminals).

Very good work. I think the Taliban, as opposed to Al Quedaesque militias, pose a further problem as they were the army of a government that rejected western trappings. If in 2000 one were to find a photo of a Taliban soldier, we know what it would have looked like: a non-uniform uniform. They were not partisans in the sense that the French resistence were. They were more than that, more organized and more representative of the . They were something between a peasant army and a guerilla army. I would suggest, too, that the state of affairs of the tribunals is something of an acknowledgment of that.

Don't get hung up on just the uniform aspect, though. Probably the most important aspect is the adherence to the laws and customs of war. In the West that means not wantonly attacking civilians, treating wounded PoWs, not mistreating or executing legal combatant PoWs, and so on.

My sense is that the Taliban, and certainly al-Qaeda, disqualify themselves on both the uniform and laws/customs grounds. How the enemy treats our soldiers and engages in warfare is an important part of the calculus. My sense is that they fail the first through lack of interest/capability, and the second through intent. And the second part of the equation (laws/customs of war) is what renders them illegal combatants, and therefore war criminals.

This I think is the point: how did the Taliban (as opposed to Al Queda) do that? If they are as a government at the time into rejecting western norms, how is it that they get judged under international norms, especially before a tribunal that is itself rejecting international norms? The whole Taliban army was surely not made up of illegal combatants as it was the army of the government of the nation. During the invasion of 2001, were they not simply acting as a defensive army?

Sorry, I used the wrong terminology there. =) In 2001 they weren't illegal combatants, although they were (and are) flouting the laws/customs of war. Defending the homeland but failing to abide by the laws/customs of war renders you a criminal -- one who does not enjoy the protection of the various conventions.

You don't get a free pass on ignoring established customs of war just because you're on the defending side. And being a non-signatory to the various conventions doesn't exempt a nation from facing justice at the hands of those who do. I don't think they give our soldiers a free pass because they don't practice the five pillars of Islam, for example.

But don't you have to show particulars in the acts of the defense that show that they were in the wrong? I understand Khadr was said by one US representative for being at fault for not surrendering, for example. There is no doubt that the Tailiban during their defense were recognizable, that they were acting in an organizaed territorial defense and that they were actively representing the soon to be former government. For me that is vastly different from Al Queda and which has made the whole thing so curious.

Not that for any one second I support the nasties but just to play devils avodaco, how can we thrust upon a group that feels it is righteous to fight against western norms, the rules we as the western devils created?

Its like the Britsh complaining 336 years later that the US rebels didn't line up in an open field and fight the European and proper way...and therefore donlt deserve independence (not that I am saying they DO.. nyuck nyuck nyuck)..

There was a very interesting even in the American Revolution where a number of Loyalist pillagers were summarily killed when caught and not provided with justice. Caused great consternation amongst certain leaders of the Revolution who argued that you cannot fight for ideals of justice you do not provide to your enemies.

Following the discussion with interest.

>> Not that for any one second I support the nasties but just to play devils avodaco, how can we thrust upon a group that feels it is righteous to fight against western norms, the rules we as the western devils created?

They are free, of course, to ignore the western norms. By doing so however, they lose claim to the _benefits_ of those rules also.

I am not convinced they failed to meet norms but I realize that I cannot know as there is no open tribunal process whereby I can inform myself.

Well, I was responding to Gorthos' hypothetical.

I should note that whatever answer you come up with, make sure it satisfies the requirement that criminals can claim to be "partisans" or "rebels" or whatever and get away with whatever. I.e. I shouldn't be able to rob the local CIBC, shoot a couple of security guards and claim I'm financing the revolution so tough for you.

Alan, it <i>is</i> difficult to know whether or not the Taliban are abiding by the laws/customs of war. I am not aware of any Canadians captured and being held by them, so it's hard to state specifics. That's why I said that my sense is, they aren't abiding by them... Are they killing soldiers that are overrun (or attempt to surrender)? Or do our guys never get into that situation? Hard to say unless you're seeing the after-action reports day-by-day.

Khadr is at fault because he was fighting on the wrong side. =) But he did -- apparently -- meet the norms, so to speak. His Combatant Status Review Tribunal ruled in 2004 that the lad was an "enemy combatant" vice "alien unlawful enemy combatant". So Khadr ought to be receiving PoW treatment.

So he's still a dirtbag for fighting for the side of barbarism and tyranny, but he's a dirtbag who (apparently) fought in a conventionally unconventional way. This is still pretty good news as PoWs typically stay locked up until the conflict is done. And that could take quite a few years.

I have no problem with him staying locked up as a PoW; he is not exactly blameless. Whether or not he should be locked up in Guantanamo or some other facility is a whole other debate. What's not debatable is that there are a few hunded years of precedent to keep enemy combatants locked up for the duration of the war.

Well, now you are just being silly. [By the way - gossip, gossip - Jay has a bunch of silliness going on. And not that I read the small and the dead but as far as I am concerned the only farcical thing Kate ever wrote that changed anything was making socialism powerful enough to alter the petrochemical geology of Saskatcehwan. Otherwise, it is just a yappy blog? Why does anyone care? Who is Warren anyway? If portland doesn't back him within 24 hours he is not worth the worry.]

Chris, I meant that silly remark for David. We agree, but I am still unclear why a 15 year old with a gun in Afghanistan is a dirtbag but one in Darfur is a victim.

I thought the whole point of the exercise was overcoming pendantic legalisms. Canadian blowing away US troops in Afghanistan = solider equivalent. Hypothetically the same Canadian in Canada financing same war = arbitrarily, I guess, something else.

I think at a certain point there has to be an admission that good old POW camps with all the treatment that goes along and good old international law of war and courts and all actually works and the US work around has been the issue. And pedantic legalisms is an oxymoron. Either it is or is not a description of technical legal process or it is not but one can't be a pedant in either case.

But you miss the point: we (or "we", if you prefer) differentiate between warfare and criminality. One fairly essential difference is that there is a government both to order and to be responsible for the actions of soldiers. When we make laws about warfare -- e.g. the Geneva conventions -- they are not made for the benefit of, say, graduate students looking for things to complain about but rather primarily for the benefit of waring parties, knowing that the day may come when our soldiers end up with the short end of the stick. To gain that benefit, one's soldiers must adhere to standards of those laws, otherwise having the laws in the first place becomes pointless.

Thus, we have several classifications of people hurting other people, roughly speaking:

- criminals
- legal soldiers (this gets subdivided, but never mind)
- illegal soldiers

That last category isn't something Bush Jr. made up over pretzels and coke. Execution of spies and saboteurs who were _illegal_ soldiers because that fought outside of what was allowed in the rules of warfare was certainly the norm in WWII, even on our side.

Note that even so, a clear differentiation was made between acts of war and acts of criminality. If you're doing "war stuff", you're not merely a criminal.

To place this in the larger context of this discussion, Khadr et al. are not criminals; we recognize that they were doing "war things". In fact, one commenter in this thread pretty clearly said to imply this would be "silly". So the question for us is, why should we recognize a foreign person fighting under no authority in another country as a "soldier". How does it benefit us? How does it even benefit bystanders?

(I think there may be an argument that Afghans caught in Afghanistan may be either criminals or legal soldiers, but I'd have to think more about it)

I did miss that but I think it is not a core issue in this case. As Chris pointed out Kdahr was recognized as an enemy combatant and should be a POW. That hs is not a national of Afghanistan is not relevant to his role in the army of the Taliban, the then government of a nation. Canadians fight in the US army and maybe the armies of many countries. They are neither criminals nor illegal. As is often said when US soldiers seek assylum in Canada, they signed up and they are in - being in an army is either contractual relationship or forced. The only time that forcing is acceptable is when there is national conscription. <p>Again, this is all particular to Afghanistan in the invasion of 2001. And "<i>I shouldn't be able to rob the local CIBC, shoot a couple of security guards and claim I'm financing the revolution so tough for you</i>" is silly. Not wrong or right or harmful but just silly.

<i>I am still unclear why a 15 year old with a gun in Afghanistan is a dirtbag but one in Darfur is a victim.</i> is, I believe, answered by <i>being in an army is either contractual relationship or forced</i>. I don't know about any other 15-year-old with a gun in Afghanistan, but my understanding* is that this particular 15-year-old was a willing participant (brainwashed, perhaps, but still not forced into it).

*Bear in mind this understanding is formed by reading Macleans and watching the cbc. Feel free to make any necessary corrections.

OK, but dropping the "I" and replacing with "Khdar" make a difference in the sillyness? That was my point, though poorly expressed. I'll drop that and on to the major points (though it's worth coming back to)

I acknowledge your point about citizens fighting for other countries as correct.

Per Chris' point, what was Khadr's name, rank & serial # in the Taliban army? Or equivalent, which is recognized by the Geneva conventions. What was the chain of command between Khadr and the Taliban leadership. These are not pointless questions, but go the heart of what it means to be a legal enemy combatant.

What is the point of having legalities of war, if they can be trivially gamed by one side or the over. I.e. because Al Queda was allowed in Afghanistan by Taliban and fought along side them, the gain all the benefits of the GC without having to comply with it themselves. How does this benefit us?

Interesting stuff here on mercenaries, contracters, and stuff.

To summarize my thoughts to this point:

- was Khadr Taliban?
- if he was Taliban (which I don't think he was), was he fighting legally?
- if he wasn't, what benefit is it to us to extend special privileges to him that others must earn?

Dave is correct, this is the "lowering of the bar" to legal combatant status that I mentioned in my original comment. It doesn't benefit us at all, but then most of the Western world signed on to that nonsense in 1949 (trying to retroactively justify French [and other] partisans), and again in 1977 where the threshold for "legal combatant" got ridiculously low.

On the other hand, Khadr wasn't exactly operating without authority. He was operating as part of al-Qaeda, who had de facto authority to wage war within Afghanistan from the former Taliban government. He received a month's worth of what passes for their basic training -- use of pistols, rifles, grenades, RPGs -- plus another month of explosives and IED training. Then he was assigned to mining and surveillance duties against an airfield. And he was operating as part of an al-Qaeda cell when apprehended.

He's not what I would consider to be a legal combatant, and his training is definitely more in line with the "illegal" side of the spectrum, but the Detaining Power made its determination and ruled the guy an enemy combatant. And sadly the Afghan government hasn't asked for his head as a spy/saboteur.

I'm unclear about what the US did, re: Chris' last paragraph -- I thought the US merely made a procedural error.

Re: the middle paragraph, note that in the article on Mercenaries I linked to, that Haliburton contracts would _not_ be eligible for full GC protection if the US invaded (for example) Iran. This is reasonably analogous to the situation of AQIA (Al Qeda in Afghanistan, for future reference)

Well the procedural error is that the Commission mandate is to deal with "unlawful enemy combatants" and Khadr's designation is the somewhat less seedy "enemy combatant". So either the Commission gets a mandate update, or Khadr (and his camp-mates) get a re-classification.

The classification implies lawfulness and that means he's a PoW by another name. Which means PoW treatment, exemption from charges stemming from combat killing, and so on. If he's a lawful combatant, then he's exempt from all five charges against him and ought to get the PoW treatment. The civil suit (brought by the sergeant's wife) also fizzles out.

So it'll be interesting to see how the US proceeds from this point.

I suspect the problem lies in the dual purpose to which Gitmo has been put.

On the one hand Bush wanted a place to detain, without many of the legal rights which would accrue on American soil, suspected terrorists of the bin Laden ilk. Which, in so far as you take the WOT seriously, made a lot of sense (or not).

On the other the operations in Afghanistan yielded prisoners of various sorts and that was a bit of a problem.

Some brainiac saw the surplus capacity at Gitmo and began shipping the Taliban/al Qaeda folks to Cuba.

Retrospectively it would have made a lot more sense to treat the sweepings in Afghanistan as POWs unless there was a positive reason to believe that they were more than AQ footsoldiers. As POWs they could have been housed on an Aleutian island until the Taliban was defeated round about 2025.

Real live terrorists are not obvious candidates for POW status (and thanks Chris for a really useful explaination of the distinctions). Nor, in many cases, are they criminals in the sense they can be tried for specific crimes other than conspiracy (but that could work if the Feds put Fitz on the file). In essence, and not terribly justly, they are being held on suspicion. Too bad for them and particularly too bad for someone who is being held but is not, in fact, a terrorist.

And here is where the entire process gets murky and, I suspect, stays murky: the proper prisoners for Gitmo are what might be described as "intelligence prisoners" rather than POWs or criminals. They are not captured on the battlefield but rather by the operations of intelligence agencies.

In the old days we would never hear about them. Now we do. Which, I suppose, means that we have to consider what, if any, safeguards are appropriate. And when we do that we have to consider it from the perspective of the falsely or wrongly accused.

That becomes a huge can of worms made all the wormier by the diverse nationalities of the detained and the vexed question of extra jurisdictional exercises of authority. Or, to put a concrete example: what sort of structure would have prevented the Maher Arar travesty?

(And thanks for the link Alan. One of Kate's commentors cleared up Mr.K's identity, "Warren Kinsella is the Tonya Harding of Canadian Politics".)

See, this has been a great group project. Lots of good thought and no meanie pants. I know more than I did 12 ours ago.

Still feeling the old "don't take prisoners" training in my brain seeping through, clouding my judgement, but either way, to again step back in time... Spanish Civil War? Fascism versus Communism? Were foreign (i.e. Canadian) volunteers for either side legal or not?

If legal, why would a 15 year old who chose to side with the Taliban nowadays not be or not be? Personally, I think a 15 year old is not intelligent enough to weigh the right and wrongness of choosing to take up arms and therefore deserves protection and councilling.

Update: Dion treads where no one dares go.