Fw: Re: Re: Re: Legal status of prisoners.

["Ian Murray" <seamus2001@xxxxxxxxx>]

[the final war will be fought over who gets to define a
war; no, wait that was the first war.]

<
http://www.usni.org/Proceedings/Articles01/PROsolis12.h
tm >
Naval Institute Proceedings

Are We Really at War?
By Lieutenant Colonel Gary D. Solis, U.S. Marine Corps
(Retired)

President George Bush declared that the United States
is at war in his 20 September address to Congress. This
"war on terrorism" in response to the 11 September
attacks raises questions about the meaning of the term
war.

Is the war on terrorism actually a war? If not, what is
it, and how will the actions of our armed forces be
viewed in terms of international law? Are terrorists
ordinary criminals to be tried in domestic courts, or
are they enemy combatants? If captured, are al Qaeda
fighters prisoners of war? May we try terrorists for
war crimes in federal courts or by military
commissions? As timely as these questions are, they are
questions our country has faced before. We can look to
history and to legal precedent for the answers.


What Constitutes a War?

In the context of the war on terrorism, the term war is
"a metaphor to signify struggle, commitment,
endurance," according to a New York Times op-ed piece
by Michael Walzer, author of the classic book Just and
Unjust Wars.1 But this is no metaphorical war. This is
war, plain and simple.2 Even before our counterattacks
on Afghanistan's Taliban and the al Qaeda terrorists,
the United States was engaged in a war. We were at war
at 0845 on 11 September 2001, a war "declared" by the
Commander-in-Chief in his 20 September address before a
joint session of Congress. Congress swiftly followed
his declaration with a joint resolution supporting the
use of force against terrorists. Our armed forces are
now fighting that war, Professor Walzer's assessment
notwithstanding.


But what legally constitutes a war? There is no court
case, no text, no treaty that conclusively answers the
question or defines the word. Only Congress can declare
war-which it has not done-but can a state of war exist
without a congressional declaration? On the basis of
history alone, the answer is yes. The United States,
which has employed military force more than 220 times
in its history, has declared war only five times, most
recently more than half a century ago.3 Korea, Vietnam,
and the Gulf War all were undeclared combat actions.


Some say that war exists if there are armed hostilities
between nations, or between citizens of the same
nation. In 1846 President James Polk expressed this
view in words pertinent to our situation today: "After
reiterated menaces, Mexico has passed the boundary of
the United States, has invaded our territory and shed
American blood upon the American soil. She has
proclaimed that hostilities have commenced, and that
the two nations are now at war. . . . We are called
upon by every consideration of duty and patriotism to
vindicate with decision and honor, the rights and the
interests of our country."4


So it is with the 11 September terrorists. Behind the
cry of "Jihad!" agents of Osama bin Laden and al Qaeda
crossed our border and killed more American citizens in
a single day than on any day since the Civil War. If
estimates are correct, al Qaeda murdered more than 30
times the 148 U.S. battle deaths suffered in the Gulf
War. We are at war, and no formal declaration is
necessary.


Even if war can exist in the absence of a congressional
declaration, can war be made on an individual, or a
non-state group, such as "terrorists"? Indeed it can.
In 1801, President Thomas Jefferson made undeclared war
on the Barbary pirates, sending Marine Lieutenant
Presley O'Bannon to the shores of Tripoli. It is true
that in customary international law, war is a hostile
contention by means of armed forces between states. The
1907 Hague Regulation III speaks of war being a
circumstance between "states." But al Qaeda, Hamas,
Hizballah, and other terrorist armed forces of
international reach have taken the world community
beyond what is customary. Nor is this a case of one man
's terrorist, another man's freedom fighter. These
fanatical groups are not resisting colonial
governments, or fighting an alien occupation, or
defying a racist regime. They breach borders to kill
and destroy, intentionally targeting noncombatants and
civilian locations, for reasons most Westerners find
difficult even to articulate.


There is a well-reasoned argument that in international
law, a declaration of war is passé, a policy relic of a
not-so-distant past. That is because the U.N. Charter,
ratified by the United States and thus the law of our
land, requires that U.N. members "refrain in their
international relations from the threat or use of
force" unless directed by the United Nations.5 That
provision prohibits force against "any state." Other
charter provisions require that members "settle their
international disputes by peaceful means."6 Those
provisions, taken together, indicate little room today
for a state's unilateral declaration of war.


The U.N. Charter does allow for force to be used in
self-defense, however. In years past, self-defense has
been described as requiring "a necessity of
self-defense, instant, overwhelming, leaving no choice
of means, and no moment for deliberation."7 That
description does not closely fit our counterstrikes on
the Taliban and al Qaeda. But international law, like
all institutions, evolves and continues to mature.
There is heated debate as to whether a state may, under
the U.N. Charter or under customary international law,
exercise anticipatory self-defense-that is, whether a
threatened state may strike first. Twenty years ago,
when Israel destroyed an Iraqi nuclear reactor shortly
before it went critical, it cited anticipatory
self-defense as justification and was condemned roundly
by the United States and other governments. Fifteen
years ago, however, our view was moderated when we
bombed Libya after a Libyan-sponsored attack murdered
two U.S. soldiers in a German discotheque. Although we
were censored in international forums, anticipatory
self-defense was the basis of our bombing.


If a nation's enemy masses on its border, that nation
should not be required to await attack, providing a
static target; to do so only invites a greater danger.
It would border on the suicidal for the United States
to stand docile and simply await the next armed
terrorist assault. Reflecting evolving international
law, there has been virtually no criticism of our war
on terrorism, whether it be called self-defense or
anticipatory self-defense. Even the United Nations, in
rare support of the use of force, seconds the war and
has voted to require U.N. members to act against
terrorism.8


Moreover, just as the get-away driver in a bank robbery
is guilty of the robbery, so are the states that
sponsor and succor terrorists guilty of the terrorists'
crimes. Materially aiding and abetting terrorism in
itself constitutes terrorism. Our extension of the war
to such governments is no legal novelty, no breaking of
new international ground.


So, yes, we are engaged in a war as surely as any
formally declared war in our nation's history. An armed
force that repeatedly has declared its intent to make
war on us has breached our borders. It has murdered
American civilians and killed our combatants. The
initial battles of what promises to be a long conflict
have been joined.


Are Terrorists Combatants or Criminals?

The United States traditionally has viewed terrorists
merely as common-law criminals. Terrorism goes
unmentioned in the 1949 Geneva Conventions and in Army
Field Manual 27-10, The Law of Land Warfare. Even after
elements of the Lebanese Party of God killed 220
Marines in the 1983 bombing of a Beirut barracks, and
five years later kidnapped and murdered Marine Colonel
William R. Higgins, the United States took no decisive
military action. Since then, the United States has
continued to view terrorism as a political issue,
beyond the ambit of military solution. Six
fundamentalists behind the 1993 bombing of the World
Trade Center were tried and convicted in U.S. federal
court. There are many other examples. U.S. armed forces
sometimes delivered retaliation, usually little more
than punitive slaps at the periphery rather than
significant blows to the terrorists' leadership or
infrastructure. But on 11 September, terrorism
graduated from criminality to clear-cut military
attack.


If we accept that we are at war, the 1949 Geneva
Conventions-the most widely observed treaties in the
world, counting even Afghanistan among their
signatories-lay out four requirements for fighters to
be considered combatants, entitled to the protections
of the law of armed conflict and prisoner-of-war status
if captured: they must (1) be commanded by one
responsible for their conduct, (2) have a fixed and
distinctive sign that is recognizable at a distance,
(3) bear arms openly, and (4) follow the law of war.9


Terrorists ignore these requirements-even as they are
diluted by the 1977 Protocols to the Conventions. In
the law of armed conflict, that means terrorists are
illegal combatants, not meriting prisoner-of-war status
if captured and liable to trial for their acts. Of
course, as illegal combatants, terrorists remain
legitimate targets. To kill Osama bin Laden, for
example, whether in an Afghan terrorist training camp
or in his bed in Kabul, would be the lawful killing of
an illegal enemy combatant.


The targeting of bin Laden should not be confused with
assassination (simplistically, a murder for political
reasons). U.S. military law first prohibited
assassination in the 1863 Lieber Code, promulgated as
Army General Orders 100.10 Although the Geneva
Conventions are silent on the subject, today's Law of
Land Warfare field manual continues the prohibition, as
do the Defense Intelligence Agency and the Department
of the Army's policy on special operations.11 Most
notably, however, Executive Order 12333, reissued by
every president since Gerald Ford, details a series of
prohibitions against assassination in both peacetime
and war. But, again accepting that we are at war, no
order or manual precludes attack on individual soldiers
or officers of the enemy, whether in the zone of
hostilities, in occupied territory, or elsewhere. Thus
it was within the law of war when, in 1943, U.S. Army
pilots shot down and killed Japanese Admiral Isoruku
Yamamoto, an officer of the enemy in a zone of
hostilities. The 1942 killing of SS Obergruppenführer
Reinhard Heydrich by British-trained Czech agents was a
lawful killing of an enemy officer in an occupied
country. The specific targeting of Osama bin Laden-a
combatant, albeit an illegal one, who leads an enemy
armed force-is not assassination.


President Bush's statement that Osama bin Laden is
wanted, dead or alive, is more problematic. Field
Manual 27-10, The Law of Land Warfare, explains that
Article 23(b) of the Annex to 1907 Hague Convention IV
"is construed as prohibiting assassination . . . or
putting a price upon an enemy's head, as well as
offering a reward for an enemy 'dead or alive.'" But
the provision cited by the field manual is hardly a
clear prohibition of any of those acts: "It is
especially forbidden (b) To kill or wound treacherously
individuals belonging to the hostile nation or army."
There is no reference in the Hague Convention, even
oblique, to either a bounty or a dead-or-alive policy.
There is little law on the subject, although it
generally is accepted that bounties and dead-or-alive
pronouncements are not in conformance with customary
international law. In any event, bin Laden's illegal
combatant status makes him a legitimate target who may
lawfully be killed. Should he one day offer to
surrender, we are, of course, obligated to accept that
surrender.


Where May Terrorists Be Tried?

When captured, terrorists may be tried for crimes they
have committed. If being an unlawful combatant is
itself a crime under the law of armed conflict, who may
try the violator, and where, and in what forum?

Besides engaging in combat operations unlawfully, the
crimes of the 11 September terrorists include multiple
murder and hijacking, to name only the most obvious. A
charge of genocide also appears appropriate. Terrorism,
murder, and hijacking are domestic crimes within the
jurisdiction of United States district courts-federal
offenses. As many terrorists have found in past trials,
federal sentences can be harsh. There is no federal
crime of genocide per se. Murder, hijacking, and
genocide, when committed by illegal combatants, also
are violations of the law of armed conflict that can be
tried under Article 18 of the Uniform Code of Military
Justice (UCMJ), which is federal law.


There is no international tribunal now in existence
that might try law-of-war violations. The jurisdiction
of the International Criminal Tribunal for the Former
Yugoslavia, established by the United Nations, is
limited to crimes committed in Yugoslavia. The
U.N.-established Rwandan Tribunal also is limited by
geography. The World Court exercises jurisdiction over
consenting nations, but not individuals. Although
opposed by the United States, the International
Criminal Court, once it comes into existence, will be a
standing court with jurisdiction over war crimes, but
its jurisdiction would not extend to acts alleged
before it was established. The United Nations could
establish another ad hoc international tribunal to try
11 September terrorists and their sponsors, but that
possibility is not on the legal horizon. Any U.N.
tribunal would exclude the possibility of the death
penalty.


Although there is no suitable international tribunal,
there is another method of putting terrorists on trial.
In customary international law, violations of the law
of armed conflict are universal crimes, that is, every
nation considers them crimes, and any nation that has
implementing legislation and has custody of accused war
criminals may either try them or hand them over to
another state willing to prosecute them. In other
words, 11 September terrorists may be tried in the
domestic courts of any nation holding them.


Captured enemy terrorists, then, face a broad variety
of potential accusers. There is every possibility that
some leaders of al Qaeda eventually will be captured,
either following the fall of the Afghan Taliban
government or through a military snatch operation. If
captured by the forces of a country allied with the
U.S. war on terrorism, the suspect quite likely would
be turned over to the United States, with its greater
interest in prosecution.


Presuming a U.S. prosecution, would trial be by a
federal court or by a military tribunal? There will be
no conclusive answer until the day of decision arrives,
but there are compelling factors that suggest trial by
military commission. The 1949 Geneva Conventions
provide for trial of illegal combatants, allowing for
trial by commission. In addition, Congress has provided
for trial by military commission for offenses committed
by illegal combatants, precluding any terrorist claim
that military trial is not permitted because there were
no ongoing hostilities between his group and the United
States.


The military commission, a wartime court, first arose
in 1847, when General Winfield Scott sought a means to
try enemy civilians for criminal offenses against U.S.
soldiers in the war with Mexico. In that day, as today,
civilians, including civilians of the enemy state, were
not subject to the Articles of War, the predecessors to
the UCMJ, so General Scott established and employed
military commissions. Essentially general
courts-martial by another name, they are provided for
in the Manual for Courts-Martial. Commissions are rare
today, but were not always so. They were used
frequently following the Civil War and after World War
II. In 1865 a military commission convicted and
sentenced to death Confederate Major Henry Wirz, the
commandant of the Andersonville, Georgia,
prisoner-of-war camp, where an estimated 12,000 Union
soldiers died. In the same year another commission
sentenced Dr. Samuel Mudd to life imprisonment for
aiding and abetting the assassination of President
Lincoln. General Tomoyuki Yamashita was the first major
war criminal to be tried following World War II,
sentenced to death by a military commission, as was
Japanese Lieutenant General Masaharu Homma.


The United States' most notable military commission was
held in 1942, after eight Nazi saboteurs-uniformed
terrorists in many respects-were landed by submarine on
U.S. shores: four on Long Island, New York, and four at
Ponte Vedra, Florida. They were captured within days,
before they could execute their missions, and President
Franklin Roosevelt ordered a military commission
convened. The three-week trial was conducted in secret
and was prosecuted personally by the Army's Judge
Advocate General. After the Supreme Court denied an
accelerated jurisdictional appeal, all eight were
convicted and the President approved the proceedings.
Six were executed, and the other two received sentences
of 30 years and life imprisonment.


The trial procedures employed by World War II
commissions would in some specifics not be permitted
today. There were troubling prosecution tactics and
evidentiary rulings in all of the World War II
commissions mentioned. The 1949 Geneva Conventions cure
this problem by requiring that the legal procedure
employed in trying prisoners of war be the same as that
for trials of the prosecuting nation's own troops. A
commission's procedure and evidentiary rules may vary,
however.


What makes a military commission preferable to a
domestic court for the trial of an al Qaeda terrorist
accused of multiple murder as an illegal combatant is
that commissions may be conducted in secret. In
contrast, in federal court the prosecution's proof,
including the disclosure of our most secret
intelligence-gathering means and techniques, would have
to be revealed. Further, courtroom security is simpler
in trials conducted on military bases, and military
jurors would be less susceptible than civilian jurors
to possible terrorist retribution.


As illegal combatants in a technically undeclared war
that is no less a war for that fact, terrorists are
subject to trial in federal court as criminals, and for
their law of war violations in a variety of forums,
including U.S. military commissions. They may not claim
prisoner-of-war status. Terrorists who invade our
nation to kill and destroy, and who survive our
self-defense efforts and are captured, will face the
full weight of justice.




1 Michael Walzer, "First, Define the Battlefield," New
York Times, 21 September 2001, p. A27. back to article
2 For a full argument that we are engaged in a war in
the legal sense, see Spencer J. Crona and Neal A.
Richardson, "Justice for War Criminals of Invisible
Armies: A New Legal and Military Approach to
Terrorism," Oklahoma City University Law Review 21
(1966): p. 349. back to article
3 The War of 1812 against the British; in 1847 against
Mexico; in 1898 against Spain; and World Wars I and II.
back to article
4 Cited in John Norton Moore et al., National Security
Law (Durham: Carolina Academic Press, 1990), pp.
823-24. back to article
5 Charter of the United Nations, Article 2.4. back to
article
6 Charter of the United Nations, Article 2.3. back to
article
7 The Caroline Case, British and Foreign Papers, 195
(1842). back to article
8 U.N. Resolution 1373, 28 September 2001. back to
article
9 Army Field Manual 27-10 para. 61.A.(2); 1949 GPW.
Article 4. Protocol I, Article 43, blurs the
distinction between combatants and noncombatants by not
requiring a fixed distinctive sign or that arms be
carried openly. The United States has not ratified the
protocols. back to article
10 Lieber Code, paragraph 148: "The law of war does not
allow proclaiming either an individual belonging to the
hostile army . . . or a subject of the hostile
government, an outlaw, who may be slain without trial."
back to article
11 Respectively, Intelligence Law Handbook,
CC-0000-181-95, September 1995, p. 3-3.; and HQDA
letter 525-86-1, dated 10 July 1986. back to article