Week Ten: The Geneva Conventions and Modern Status Issues 21 March 2012

1. Week Ten: The Geneva Conventions and Modern Status Issues 21 March 2012

2. Geneva Law / Principles

3. Remember: • No reciprocity requirement in GC’s and APs • CANNOT be derrogated

4. What Makes a Combatant Combatants = • Uniformed? • Open Arms? • Organized? • Follows LOAC? Does this apply to Armies, or just militia and other armed groups?

5. 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

6. Don’t follow LOAC and… Still a POW

7. 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.

8. Categories on an IAC Battlefield 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

9. Taliban (2001) • IAC or NIAC? • 4 Hague criteria or not? • Uniformed • Open arms • Organized • Obey LOAC • No POW status, b/c Taliban did not comply with these provisions

10. Al Qaeda - Iraq (2004) • IAC or NIAC? • Controls territory (AP II) • 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

11. Unlawful “Enemy” Combatantsa NIAC Term • Non-combatants • Who engage in acts against coalition • In violation of LOAC • 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)

12. 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)

13. Terms Detainee: Anyone captured or seized by an Armed Force (See Solis at 225), including: • Enemy Combatant • Lawful Enemy Combatant • Unlawful Enemy Combatant • Enemy POW • Retained Person • Civilian (but not those held for law enforcement?)

14. Terms Enemy Combatant = ?? Solis at 226 “Lawful combatant” = oxymoron

15. POW Status Doubt and Article 5 Tribunals “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

16. 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?

17. Goldsmith Memo GC IV & Protected Person Status - Iraq • 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

18. Geneva Status International 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?

19. 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 1 Art 45(3)

20. Non-International Armed Conflict?

21. Detention of Civilians in the Conflict with Al-Qaeda • 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

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

23. Detention and Internment Koh on Detention Authority • “… 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

24. Detention and Internment Koh on Detention Authority • “… 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

25. MCA of 2009

26. Detention and Internment Concluding Observations • 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.”

27. Backup Slides

28. Who is a Combatant / POW? Hague Convention 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)

29. Who is a Combatant / POW? Third Geneva Convention 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

30. Who is a Combatant / POW? Third Geneva Convention • (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

31. Who is a Combatant / POW? Civilian = Everyone Else 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)

32. GC IV & Protected Person Status In re Quirin • “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.”