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Front Page » Archive » Vol
2 No 30 » here
Unlawful combatant - what's that?
The clumsy roll-out of a
dubious new term could put Canadian officials on trial
by Kevin Potvin
A new term has entered the popular lexicon, courtesy of
US Secretary of Defence, Donald Rumsfeld. The Taliban and
Al-Qaeda fighters captured by US forces in Afghanistan and
transported to the US military base at Guantanamo Bay, Cuba,
Rumsfeld said, are not 'prisoners of war' as defined
by the 1949 Geneva Convention, but rather 'un-lawful
combatants.'
An international debate has arisen about this definition,
and Canada is in the middle of the controversy. The United
Nations, Amnesty International, and the Red Cross all have
disputed the US definition of the prisoners as 'unlawful
combatants.' These groups say they are prisoners of war,
and are thus entitled to the rights guaranteed under the Geneva
Convention, to which the US is a signatory.
US forces who captured the prisoners put them in shackles
and hoods, sedated some, and placed them on flights to Cuba,
where they have been penned in open-air chain-link fence cells
measuring eight feet by six feet. This treatment, say many
experts, contravenes the rules regarding conditions for prisoners
of war.
Last week, the Canadian government said it would refuse
to hand over to the US those fighters its armed forces captured
in Afghanistan unless the US defined them as POWs, and treated
them according to the Geneva Convention. However, the very
next day, the Canadian government changed tack, and instead
said it would hand them over, no questions asked.
This about-face was in direct response to Rumsfeld, who said
any nation helping the US in Asia who refused to hand over
captured forces would not be allowed into any area where they
might encounter them- essentially a promise to locate
forces sent to help the US well away from any combat areas.
Canada earlier this month refused to send armed forces unless
they would be used in areas that would expose them to potential
combat. All other nations' armed forces involved in Asia
are deployed in peacekeeping missions.
In addition to the treatment they have been subjected to
already, by denying them POW rights under the Geneva Convention,
the US allows itself to subject the prisoners to torture and
possibly death sentences. Already, in November last year,
US president Bush signed into law measures allowing US forces
to use torture on captured 'terrorists,' and to
employ off-shore military tribunals to try the captured forces,
sentence them, and execute them. They may now do all this
with no requirement to share any information about this activity:
the tribunals, their results, and the potential executions
may be kept a secret.
An 'unlawful combatant' was defined in a 1942 US
Supreme Court Case, known as 'The Quinn Case.' The
Quinn Case involved eight German saboteurs captured on American
soil with plans to attack military targets. The US in this
case was able to execute the saboteurs because they were not
deemed in the case to be prisoners of war, but unlawful combatants.
The court then went on to explain the difference.
What's a uniform?
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| War hats come in
all shapes and sizes |
According to the international law of war, 'lawful combatants'
are soldiers in uniform fighting for their respective militaries,
while 'unlawful combatants' are people not in uniform
who sneak into the opposing territory to wreak havoc.
'The spy who secretly and without uniform passes the
military lines of a belligerent in time of war,' reads
the 1942 US Supreme Court decision, 'seeking to gather
military information and communicate it to the enemy, or an
enemy combatant who without uniform comes secretly through
the lines for the purpose of waging war by destruction of
life or property are familiar examples of belligerents who
are generally deemed not to be entitled to the status of prisoner
of war, but to be offenders against the law of war subject
to trial and punishment by military tribunals.'
There has been no case in law that has supplanted or elaborated
this definition, and it is the accepted legal definition that
applies to this day. A few points are crucial in determining
whether the captured Taliban and Al-Qaeda fighters now at
Guantanamo Bay can be defined as 'unlawful combatants.'
The legal definition relies heavily on the fact of whether
the enemies were in uniform or not. This is a difficult point
to settle. The combatants in this case were captured wearing
ordinary robes and turbans- not generally recognized military
uniforms. However, during several decades of war in Afghanistan,
the typical outfit worn by combatants has been ordinary robes
and turbans, and these may be regarded as military uniforms
there.
It is revealing that when Taliban forces surrendered to Northern
Alliance forces last fall, and then agreed to fight in cooperation
with the Northern Alliance, they changed the colour of their
turbans from white to brown. This would seem to indicate that
the turban is part of a military uniform, insofar as uniforms
are meant to identify a person as a combatant and to suggest
which side a combatant is on.
Another point is whether the captured Taliban and Al-Qaeda
crossed belligerent lines. The US action in Afghanistan has
relied almost exclusively on air-delivered munitions, and
there has never been any recognizable 'line' that
combatants can be deemed to have crossed or not, since the
entire country was (and remains) an open war zone.
It would be difficult for the US to argue that combatants
fighting an invader within the borders of their own country
are guilty of crossing any lines. The opposite- that the
US forces are the unlawful combatants- would be the easier
argument to make. What is definitely beyond dispute is that
the captured forces certainly did not enter any US territory.
These facts thus require the US to make the case that the
attack on the World Trade Center on September 11 is the event
during which combatants out of uniform crossed into enemy
territory secretly to wage acts of war. However, those combatants
all died in the attack.
The prisoners captured in Afghanistan and brought to Cuba
did not personally conduct the attack. The 1942 Supreme Court
decision does not penalize anyone involved with the unlawful
combatants who themselves did not conduct an unlawful attack.
For example, no case was made against the commanders of the
eight German saboteurs who remained in Germany, even though
the decision discusses at length the fact that the saboteurs
were operating under direct orders.
Canada, in its decision to hand over captured forces to
the US, without the stipulation that they be regarded as POWs,
exposes the Prime Minister, the Minister of Defence, and many
senior military officers to charges of war crimes. They are
also exposing Canada to the risk that its international reputation
will be severely tarnished for the act of harbouring these
war criminals.
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