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@Candyman67:

Before the Iraqi government was established, we could have been called occupiers, but not anymore.

When I used the term non-combatant, I should have used the term ‘unlawful combatant.’

You mention that the minimum criterian is an open display of arms, but most of them don’t even do that.  Even if you try to be flexible with the criteria, they still can not possibly be defined as ‘comabtants’.

Hmmm…

You should look up the texts again.
definition of combatant:

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.
2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

It doesn’t say what a “Party” is … the problem might be that the Iraq government faces more than one adversing party.

Either you are a combatant. Then you are protected by the Geneva convention
Or you are a civilian … then protection is even stronger !!
Or you are in between … then -and the conventions are very clear about that- you still are a human being, with all basic human rights: that means. no torture, fair trials etc. etc.
And it also is very clear that if a status is unclear, then in doubt the person has to be treated as a combatant … until proven that he is not one by a “competent tribunal”.

A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth … shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.

Something the US seems to have forgotten is

If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated.

Plus:  There is another category that has not been mentioned yet:
The Mercenary, who indeed is not protected by the rules for comabatants or civilians (yet still by basic human rights)

Read in PART III of
http://www.unhchr.ch/html/menu3/b/93.htm

So, someone becomes a terrorist not by “shooting at US troops”, that is still way too simplistic (please, , reread my first post, i did not deny that there are terrorists, i just tried to correct the f*cked-up thinking that plain shooting makes a terrorist).
It happens because of Article 37, I, ©: perfidy

On the other hand, there is video footage of a US soldier violating Art. 41, 1 … and killing an injured enemy.
That does not make all US soldiers “terrorists”, if you take the right to see the individual case on one party, you have to do and allow the same with the warring party.

On POWs, read Art. 44 and 45

Article 46 covers Spies … another group apart from combatant, civilian and mercenary

Now, Article 47:
Mercenaries:

1. A mercenary shall not have the right to be a combatant or a prisoner of war.

2. A mercenary is any person who:
(a) Is specially recruited locally or abroad in order to fight in an armed conflict;
(b) Does, in fact, take a direct part in the hostilities;
© Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
(e) Is not a member of the armed forces of a Party to the conflict; and
(f) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

So, US troops are not mercenaries because of (f).
The insurgants are not mercenaries because of ©.

On the “basic rights”, read Art 75

It is disputable wether we look at a civil war (are the bombings “sporadic”?) … and the role of the US troops is unclear.
I have to suppose they have become “unlawful combatants” as well, don’t I? They don’t fit into any description… Does that mean the suicide attacks against them become not perfidic - and thus legal -  again ?
Seriously: What status do the US troops have there, if they are no occupational force?

@F_alk:

Now, Article 47:
Mercenaries:

1. A mercenary shall not have the right to be a combatant or a prisoner of war.

2. A mercenary is any person who:
(a) Is specially recruited locally or abroad in order to fight in an armed conflict;
(b) Does, in fact, take a direct part in the hostilities;
© Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
(e) Is not a member of the armed forces of a Party to the conflict; and
(f) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

So, US troops are not mercenaries because of (f).
The insurgants are not mercenaries because of ©.

Not really true Falk.  The insurgents and/or AQ may be motivated by the promise of “heaven” for killing the infidels in a holy jihad.   Certainly the promise of a guaranteed entry into heaven would be a value well in excess of any possible material pay here on earth - which is one reason there is no shortage of suicide bombers.  Hence at least some of the insurgents could be considered mercenaries.

Additionally, a weak arguement could be made that the US troops are sent at the request and nominally under the command of the Iraqi government though I’m inclined to say you are correct w.r.t. the US forces.

@221B:

Not really true Falk.  The insurgents and/or AQ may be motivated by the promise of “heaven” for killing the infidels in a holy jihad.   Certainly the promise of a guaranteed entry into heaven would be a value well in excess of any possible material pay here on earth - which is one reason there is no shortage of suicide bombers.  Hence at least some of the insurgents could be considered mercenaries.Â

Additionally, a weak arguement could be made that the US troops are sent at the request and nominally under the command of the Iraqi government though I’m inclined to say you are correct w.r.t. the US forces.

Interesting argument, but I think that defines the idea of “payment” rather too broadly, no?  I have tended to consider religious motivation for battle under the rubric of ideology, and perhaps this isn’t the way to really think about it.  However, if we assume that for the moment, then promises of heaven are akin to promises of social and political immortalization (kind of).  I wonder if any ideology can fall under this rubric then, and if so, that means that fighting for nationalism or preservation of freedom, etc. could also be considered a reward of some kind.  After all, many people join the military for financial reasons, but realistically, I am reluctant to call them mercenaries in any sense.  I think a much safer ground legally to address the issue of religious motivation is based on discrimination.  Totalizing ideologies make no distinction between civilian and combatant, and it’s easier to assess it on that issue rather than trying to figure out what motivates each individual soldier.  Thoughts?

Anyway, turning to the easier points to address.  First off, RB, chill.  There’s no need to get hostile.  You make some interesting points, but you can’t constantly see criticism of your position as either anti-American, a personal attack, or outrageous.  Something that your opponents say has to make some modicum of sense.  In any event,

No that is not correct.  We’re not in charge of the country.  We’re keeping it secure because Iraq has no military.  Once they get theirs trained, we can leave.  Isn’t that the correct way to do it?

You cannot compare the US to Syria.  Syria occupied Lebanon because THEY WANTED TO OWN IT.  We liberated Iraq and are keeping it safe for the Iraqi people.  We haven’t made one dime on Iraqi land and haven’t taken over anything and claimed it as our own.  Do you know of any examples of us taking Iraqi territory for ourselves and declaring it a part of America.

You’re splitting hairs here.  Tell me why Syria should believe the benevolence of US intentions.  Better yet, tell me why Russia or China should look on the precedent of preventive war and not look to the stability of their own borders and internal populations.  Wihtin conflict, because you cannot know the intentions of your adversary, you cannot necessarily take their comments at face value.  Trade and economics is a different situation which allows for cooperation, but the use of force, and the reasoning behind it, do lend themselves to caution.  For example, compare Syria and Israel in Lebanon.  To the average Lebanese, they both were occupiers until 2000, when Israel made a unilateral withdrawal.  Up until that point, can you really expect people to believe that either one would be leaving any time soon?  They both made their case on the grounds of security.

Also don’t confuse occupation with colonialism or mercantilist policies.  I know they are very similar, but remember that colonies were not meant to be temporary.  Occupations by law are, and it’s not about making money.  Israel didn’t make any money from its occupation of Lebanon, but there are a host of other reasons for having one’s military in another’s territory.

Quite simply an unlawful combatant is anyone trying to kill without a uniform.

You haven’t been reading the Conventions then.  There’s a lot more in there than you cite.  For example, guerilla resistance can be and has been protected, as well as prisoners of war breaking free and attacking their captors.  Like I said, the war treason crime was eliminated because international law is casuistic.  It recognizes that while a military may occupy a territory, nothing makes it a legitimate authority, only a temporary occupant with certain powers and responsibilities.  But that rule can be legitimately contested, if popular support exists for it.  This is because popular will is the basis of the legal authority of the state, and hence, support is in effect transfering legitimacy to the resistance.  Thus,

but I think the main premise was to have uniformed soldiers fighting so each could distinguish the other.

I’m afraid you’re wrong about that.  Falk and Candyman have provided the relevant sections of the Convention for your reference.

Here, maybe a policy assessment will make all these points clearer.  If you were there right now, what policy prescriptions would you make?  We’ll take as given:  The US does not have enough troops to police every sector of Iraq.  It is facing an insurgency with some local support.  It seeks to create a democratic government, but also to secure its interests in the region.  Also, public support at home is waning for the war, and international assistance will not be forthcoming without major concessions to those previously opposed to the war.

Given the limitation of the first, who on the ground do you work with?  How do you identify them?  How do you vet them?

In facing the insurgency, what measures are permissible?  Which ones will increase support for resistance, and do you take those measures anyway?  Why?

How do you increase support at home for the war?  (I’m going to suggest that propaganda is unlikely to work here, as Bush’s repetition of message has not prevented waning support.)  How does support at home relate to the war effort?

Most importantly, how do you increase international support for the occupation and developing the occupied government?  While assistance is not mandatory, it would help a lot.  How do you overcome the ill-will generated by the invasion to obtain that assistance?

These are hard policy questions, and I have a healthy respect for those who have to answer them.  As a point of disclosure, I have that respect because that’s what I do on a daily basis:  assess substantive programs and strategic policy and help develop them.  I can tell you, sweeping generalizations about the nature of Muslims, international actors, the intentions of critics, etc. are not going to help you get out of these minefields.  So, given all that, what would you suggest?

Chengora wrote:

Quote from: 221B Baker Street on Today at 06:52:13 PM
Not really true Falk.  The insurgents and/or AQ may be motivated by the promise of “heaven” for killing the infidels in a holy jihad.  Certainly the promise of a guaranteed entry into heaven would be a value well in excess of any possible material pay here on earth - which is one reason there is no shortage of suicide bombers.  Hence at least some of the insurgents could be considered mercenaries.

Additionally, a weak arguement could be made that the US troops are sent at the request and nominally under the command of the Iraqi government though I’m inclined to say you are correct w.r.t. the US forces.

Interesting argument, but I think that defines the idea of “payment” rather too broadly, no?  I have tended to consider religious motivation for battle under the rubric of ideology, and perhaps this isn’t the way to really think about it.  However, if we assume that for the moment, then promises of heaven are akin to promises of social and political immortalization (kind of).  I wonder if any ideology can fall under this rubric then, and if so, that means that fighting for nationalism or preservation of freedom, etc. could also be considered a reward of some kind.  After all, many people join the military for financial reasons, but realistically, I am reluctant to call them mercenaries in any sense.  I think a much safer ground legally to address the issue of religious motivation is based on discrimination.  Totalizing ideologies make no distinction between civilian and combatant, and it’s easier to assess it on that issue rather than trying to figure out what motivates each individual soldier.  Thoughts?

Yes, it can be difficult to clearly distinguish between financial incentive and ideological incentives.  For example, I come in contact with people for which money, and attaining it, is their god (for lack of a better word here).  Others however, do not care about money at all but perhaps take great pride in other matters, so I interpret the “private gain” mentioned earlier rather liberally, not necessarily in financial terms.  Perhaps I shouldn’t do so however …  :|

FYI - A very useful website on the Geneva Conventions:  http://www.genevaconventions.org/

@221B:

@F_alk:

© Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;…
The insurgants are not mercenaries because of ©.

Not really true Falk.  The insurgents and/or AQ may be motivated by the promise of “heaven” for killing the infidels in a holy jihad. …

See, doesn’t matter. “Material” is the keyword.

Falk,

It does matter.  That their promised ticket to “heaven” can’t be equated to a monetary figure is irrelevant.  To the suicide bombers, their heaven is much more real to them than a boatload of cash handed to them right then and there.  They might even question why we say that the money, which will be only temporary compared to an eternal heaven, is real?

Still, Chengora has a good point - when is this motivation an ideology?  I’m still thinking about that.

How else would you define “material compensation” and “non-material compensation” then ?

I think the case is pretty clear here.

Well, if you want to be that precise then you are correct.  As I have stated earlier I view this clause with an attempt to determine its intent.

I felt it important to address one or two other issues, then wait for replies.  First, I wrote:

“The point I’m trying to make is that nothing in the Conventions allows for the creation of a null category that the US can put any unpleasant individual into and do whatever it wants to them.  More strongly, it is illegal under international law, and if you want to throw it out, then go ahead.  But be aware of Powell’s concerns, that disregarding international law increases the likelihood of those actions to be done to US soldiers.  In addition, as I said, you abandon the rule of law, and thus, the US has lost in a significant way.”

RB responded:

“What about the muslim terrorists cutting people’s heads off?  Are you outraged about that or only when American’s may or may not do it to others?”

I’m using this as an illustration of logical leaps, and I’m talking not about the content of our post but the methodology and logic behind it.  Your criticism isn’t exactly directed against my argument.  You’re asking me a minor point, whether I think the protections of international law extend to people other than resisters.  To which of course I will say, yes.  Not really that hard a question.  But underlying your statement is an assumption that I’m creating a double standard, or, more tenuous but more troubling, I sense from your other posts as well that you feel a heinous action justifies any treatment at all towards those committing the offense.  Both of that misses the general logical point that Falk, Mary, and others have made, that international convention governing the treatment of combatants and civilians extends to everyone.  There are no legally permissible black holes.  If you want to challenge that point, you shouldn’t really appeal to the awful nature of the crime.  Action and status are not connected through punishment in international law.  Rather, status defines the category for assessing action.  Hence, an awful crime committed by a civilian is still an awful crime.  But it doesn’t allow a government to abrogate that individual’s non-combatant rights.  Likewise, a soldier who kills another soldier in combat is not guilty of murder because of combatant status.

And finally, a quick response.  You wrote:

“So please tell me…what else could have been done to free the Iraqi people except the removal of Hussein?  What else?  I’m not the one making the big leap here, I’m the one seeing the picture for what it is.  People like Hussein would never change.”

And you asked for a response about what else could be done.  Note, however, that you deviate significantly from the official stated reason for going to war:  trying to find and destroy NBC weapons and imminent capability.  The question was never whether it is a good thing for the Iraqi people to have freedom in some abstract sense.  Rather, it was what is the best method for getting to that point, which was the purpose of those policy questions I posed earlier.  As I’ve posted before, different policy goals imply different strategic positions.  If the point was to alleviate the suffering of the Iraqi people, then how about lifting the sanctions regime?  I’m not saying I would have advocated that, but that was an option.  If it was to find and destroy WMDs, how about a concerted effort to restart the inspections regime while avoiding questions over US intentions.  Bush should never have put “regime change” up in the front if he was serious about disarmament rather than liberation.  There were a host of options which could have been pursued, but when the US made it clear that such actions - which are not unreasonable - would not be contemplated, then international actors began getting worried.  Espousing a comprehensive preventive right to attack?  That threatens international and US interests implicitly.  Does that mean that China can simply go to war with Taiwan and argue that because it poses a threat to its territorial sovereignty, therefore the US and Japan should stay out?  It is a slippery slope entailing potentially huge costs.  I’ve reserved judgment on whether going to war was a good thing, but, as you can see, the situation is full of nuance and complexity.  As such, I don’t know how you can demonize critics as being unrealistic when they urge caution, or show that war was, probably at best, a mixed blessing for some Iraqis, and certainly hell for others.  It’s not a failure of fact and perspective, but rather a failure of analysis and logic.  That’s what I find troublesome with your arguments.

@221B:

Well, if you want to be that precise then you are correct.  As I have stated earlier I view this clause with an attempt to determine its intent.

If you compare that text to other text of the UN, then i think it really is that precise. I mean, treaties are written by lawyers usually, so i rather stick to the letters when interpreting it. :)

And Chengora, i find it laudable that you tried to understand RB concept of logic.