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Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said
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Wednesday, March 26, 2003
Iraqi tribesman: Unlawful combatant or Geneva Convention POW?A correspondent raised this issue with me a couple of days ago; and the piece yesterday on Iraqi tribes stirred the subconscious to thought. (This is pretty much all hypothesis. But one has to start somewhere.) The suggestion is that the tribes have organised large numbers (perhaps not as large as claimed, though) of armed men (presumably just small arms, but even so); are led in such a way as to be capable of operation without direction from Baghdad; and would be able to mount guerilla operations against the US+ forces both before and after the assumed victory over Saddam. If some of these men were captured during such operations by men of a USA unit, what, I wonder, would be their status
From an initial scan of the Conventions [1], the provisions dealing with guerillas and other non-conventional fighters are in Article 43-47 of Protocol 1. The upshot seems to be irregular forces (something like Tito's Partisans in World War 2, I'm reckoning) get treated, if caught, as POWs under Geneva III (Art 44 - combatants is the term used) [2]; and even a member of a rabble or DIY guerilla unit, who does not fall into the Art 44 definition of combatant, is (by Art 45) to be presumed to qualify as a POW until his status is determined by a competent tribunal.. I suspect some tribal fighters would, and some would not, fall within the definition of combatant, depending on the particular circumstances of each case. Approaching the matter from the perspective of US law, one starts with the 1942 case of Ex parte Quirin - where SCOTUS decided that had a bunch of hapless German would-be saboteurs had no reason to complain of being tried by a military tribunal. The gang were tried for offences against Arts 81 and 82 of the Articles of War (a document whose legal status I'm unclear [3]). The Articles gave jurisdiction to the tribunal, and I'm not, from a first read (in a while), quite clear on what precise grounds they were expecting habeas to issue. But the court does make the notorious distinction between lawful and unlawful combatants (at p31); traces the source in General Order 100 April 24 1863 to the 1940 Rules of Law Warfare [4]; and mentions that definition of lawful belligerents by Paragraph 9 is that adopted by Article 1, Annex to Hague Convention No. IV of October 18, 1907, to which the United States was a signatory and which was ratified by the Senate in 1909. 36 Stat. 2279, 2295. A translation of the 1907 Convention is here. The definition of lawful belligerents has been carried forward into Art 4 of Geneva III. So, there, it seems, is the (missing?) link between the universes of US and of international law. But, which law will apply to the hypothetical Iraqi tribesmen? Presumably, their treatment by US forces will be subject to US military law - whatever that is (eg, is there any longer a Rules of Land Warfare?). But also, obviously, subject to international law (including the Geneva Conventions). In due course, an AMGOT is to be set up; presumably, its status derives from international law, rather than US law. But how? Is there an interregnum or hiatus between systems of law over a given part of Iraq, depending on whether that part is under full US+ control at the time? What about areas controlled by UK forces? Are those areas subject to UK military law? Where conflicts arises between international and domestic law (and how might that happen?), what body would settle the matter? I'm pretty much totally in the dark about this stuff, as you will gather. All the easier to make an impression with the slightest amount of daylight. In theory...
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