Friday, January 29, 2010

Law of war

There is much noise out there in this interweb thingie reference the pending closure of Club Gitmo and the campers currently vacationing on the American taxpayer's dime.

Lets start at the beginning. The enemies of the west (the United States) have conducted operations against US interests at home and overseas for decades. Just because one side is slow to pick up on the clues does not change the fact that a defacto state of war has been in effect. Sense 2001, the left in this country has been all pissie when "all of the sudden" the Commander In Chief of the Armed Forces of the United States of America goes before the Congress of the United States and requests formal authorization. The Congress authorized the use of force. Apparently, The democrats in the Congress did not think that the POTUS would exercise that authority (although POTUS already had congressional authority to use force, given to the last administration).

So, in response to the attack of 11 Sept, 2001, POTUS ordered up a large can of woop ass opened up on the piles of human wreckage the was fingered as the ones responsible.

The Taliban falls as a government in 3 weeks. The US put less than 15,000 sets of boots on the ground for that little party.

That little bag of camel shit in Baghdad was giving the world the finger for the last 10 years. Refusing to live up to it's Cease Fire obligations. TO wit, fully account for all WMD. He did not. HE paid the price for the games that he played. Remember that the 42’nd POTUS allowed the Baghdad punk to act like a spoiled brat by failing to comply with the cease-fire agreement of 1991. This is the reason that you will find it difficult to negotiate with instable leaders of countries hostile to the interests of the United States.

Now on to the meat.

The 225 or so piles of “human” wreckage have a problem. Are they or are they not EPW’s as defined by international treaty. That will depend on who you ask and the details of the manner of how the person comes to be in the custody of the US Military. For the most practical reasons, US forces in the field are trained to treat by default all persons captured/detained in the theater of operations (battle field) as EPW’s (enemy prisoner of war). The guy at the vary point of the spear doesn’t have to time to sort all the different treaty classifications of persons that are found on the battlefield. We have been trained to use the 5 “S’s” search, silence, segregate, safeguard and speed. We are also trained to treat all captured or detained persons as EPW’s. It is not up to the capturing element to make that determination as to their status according to the law of war. That’s the job of the MI/MP unit that runs the PW collection point.

Like I said, we use the 5 S’s

Search – Search the captured person to insure that there is no weapons or any other item of intelligence importance. All items removed from the PW are to be tagged with the date/time and location of capture, capturing unit and evacuated though the S-2 chain. All items of a purely personal nature are to be returned to the person. The PW is to retain any personal safety equipment (helmet, protective mask).

Segregate – Separate captured persons (enlisted/NCO/Officer, male/female)

Silence – keep them quiet. Do not allow them to talk amongst themselves.

Safeguard – The capturing power is now responsible for the personal safety of the PW. Do not allow anyone to harm, harass, or otherwise injure the PW.

Speed – Evacuate the PW to the PW collection point ASAP.

See, at the pointy end of the stick, the options available for the classification of the captured person is zero. Any person grabbed is treated as a EPW the people higher will sort it out at their leisure.

Now, moving right along, when the EPW arrives at the PW collection point, usually at the brigade trains, they are further sorted, initial interviews conducted personal classified and the other treaty required actions are taken care of.

Under international law, (an interesting concept) over time rules of the ‘game’ have evolved to keep the confusion to a minimum. One set of rules is what makes up an ‘authorized player’. Lets go look at the generally recognized rulebook – the Geneva/Hague conventions:

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, fulfill 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.

(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 favorable treatment under any other provisions of international law.

(6) Inhabitants of a nonoccupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading force, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Likewise, there are rules that make a ‘civilian’ into a person deserving of the protections of the above provided they comply with the following:

The requirements specified in Article 4, paragraphs A (2) (a) to (d), GPW (par. 61) are satisfied in the following fashion:

a. Command by a Responsible Person. This condition is fulfilled if the commander of the corps is a commissioned officer of the armed forces or is a person of position and authority or if the members of the militia or volunteer corps are provided with documents, badges, or other means of identification to show that they are officers, noncommissioned officers, or soldiers so that there may be no doubt that they are not persons acting on their own responsibility. State recognition, however, is not essential, and an organization may be formed spontaneously and elect its own officers.

b. Fixed Distinctive Sign. The second condition, relative to the possession of a fixed distinctive sign recognizable at a distance is satisfied by the wearing of military uniform, but less than the complete uniform will suffice. A helmet or headdress which would make the silhouette of the individual readily distinguishable from that of an ordinary civilian would satisfy this requirement. It is also desirable that the individual member of the militia or volunteer corps wear a badge or brassard permanently affixed to his clothing. It is not necessary to inform the enemy of the distinctive sign, although it may be desirable to do so in order to avoid misunderstanding.

c. Carrying Arms Openly. This requirement is not satisfied by the carrying of weapons concealed about the person or if the individuals hide their weapons on the approach of the enemy.

d. Compliance With Law of War. This condition is fulfilled if most of the members of the body observe the laws and customs of war, notwithstanding the fact that the individual member concerned may have committed a war crime. Members of militias and volunteer corps should be especially warned against employment of treachery, denial of quarters, maltreatment of prisoners of war, wounded, and dead, improper conduct toward flags of truce, pillage, and unnecessary violence and destruction.

So, to be on the battlefield is not always a bad thing as long as the rules are followed. Break the rules and things can go very poorly for you if captured by the other side. Set the way back machine to 1945-1946. The city of Nuremburg. It’s post war Germany. The allies are in a foul mood and decided that the persons responsible for certain acts are to be called to account. So trials were set up, held, evidence heard, judgments rendered. Some acquitted, most were convicted. Those convicted were sentenced to long prison terms or to hang by the neck for the crimes that they were convicted of.

So we now have the stage set for the 21st century replay of the military tribunals. The persons (loose definition) being detained at Gitmo were to be tried by duly authorized military tribunals based on the detaining power (US) rights and duty under the laws of war.

According to treaty, any non-military person who violates any portion of the relevant provisions are subject to trial and be sentenced to up to and including death.

There is no ambiguity in this point of the LAW of WAR.

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