(cross posted from a comment in Robin's way earlier blog entry...)

The second issue is the fact that in this particular case the insurgents are, arguably, not legal combatants according to the Geneva Conventions criteria.

could you clarify this Robin? Why aren't the insurgents covered under the Geneva Conventions?

__________________________

As to the larger issue.... I see absolutely nothing wrong with the fact than a Iraqi cameraman who was a stringer for CBS used his connections to get footage of attacks.

Lets switch this around a bit, because nationalism clearly distorts the journalistic issues involved here.

Lets say that during the Soviet occupation of Afghanistan, an Afghani cameraman who was a stringer for CBS was in contact with the anti-Soviet insurgents, and was detained because he had footage of insurgent attacks against Soviet forces in his camera.

What steps would it be appropriate for the Soviet Union to take against this cameraman?

__________________________________

Based on what has been reported so far, I don't see how he is a "security risk" simply because he has contacts within the insurgency who notify him of impending attacks. There are only two reasons that the US would want to detain him --- they want to restrict the flow of information coming out of Iraq, or they want to torture the guy.

Because, lets face it, if you think that a cameraman is being told of impending Iraqi insurgent attacks, the smart thing to do would be to keep a close eye on the guy, and find out which network he is connected with in order to "sweep it up."

One doubts that he would willingly give up his sources of information, anymore than Judith Miller is willing to tell us what she knows about who did much greater damage to America's national security by blowing Valerie Plame's cover as a covert CIA operative. And given what we already know about the use of torture by the Bush regime in Iraq, the odds are that this cameraman has electrodes hooked up to his genitals at this very moment.

What's the surprise? Didn't Dan Rather say he wouldn't warn U.S. troops if he had prior knowledge of an attach on them. It would compromise his journalistic integrity, so he claimed. Journalist are right down there with lawyers in their desire to win at any--and I mean any--cost. Infuriating and sad.

p.lukasiak,
The Geneva Convention has specific requirements for armed combatants to adhere to in order to enjoy its protections. The requirements can be found in Article 4. Persons outside the listed categories/requirements do not get the benefit of the Convention on Prisoners of War.

For resistance movements, these include
a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

© That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

The insurgents in Iraq arguably violate all of these but especially (d).

They violate a? That is almost impossible to violate
b & c are violated by the soldiers of fortune
d Unlike the Americans?

ps. Robin what do you think of Hitlers order to kill members of the SAS as spies? Do you think he was right?

Why aren't the insurgents covered under the Geneva Conventions?

They are if they wear a uniform, it boild down to that.

Forces that mix with civilians put them at risk, so you lose your geneva protections.

Spys, stealth soldgers, it dont matter, perfectly legal to put a bullet thru your brain on the spot.

The only reason not to execute you on the spot would be if your identity as a fighter is unclear, or if you might be usefull for information.

No uniform = bullet thru your brain is the proper way to deal with you.

Its as simple as that.

The Geneva Convention has specific requirements for armed combatants to adhere to in order to enjoy its protections. The requirements can be found in Article 4. Persons outside the listed categories/requirements do not get the benefit of the Convention on Prisoners of War.

Robin...that is complete bullshit. The Conventions provide a list of categories that are absolutely REQUIRED to get POW status, and then goes on to state that if there is ANY doubt with regard to the status of an individual, he or she is afforded those protections. The ONLY group specifically excluded from some provisions of the conventions are spies operating behind enemy lines dressed as civilians. In an "occupation" situation, there are no "enemy lines" as such.

PS Robin---

There is no such thing as a "legal combatant" or "illegal combatant" defined in the Conventions. Anyone who uses such terms is demonstrating their ideologically based ignorance of the content and intentions of the conventions themselves.

_____________________

and I notice that not one of the right-wingers here has bothered to respond to the question of the Afghani cameraman. If you can't come up with a "general rule" that is applicable to to all individuals regardless of whether they are "allies" or "enemies", its obvious that your criticism is based SOLELY on whose side someone is on.

p.l.:

There is no such thing as a "legal combatant" or "illegal combatant" defined in the Conventions.

Quit being such a sophist. Clearly the Gneneva conventions lay out requirements to which combatants must adhere should they wish to enjoy it's protections.

The terms legal combatant and illegal combatant are generally accepted terms to describe those that adhere and those that don't, repsectively. Whether the terms appear in the convention documents is not relavent, as it is the state of compliance that determines whether an individual falls under the Convention's protections or not.

Anyone who uses such terms is demonstrating their ideologically based ignorance of the content and intentions of the conventions themselves.

This is just more of your typical ad hominem blustering.

If you choose to do so, you could make a stronger case based on the various anti-torture agreements and conventions, and maybe the humnan rights ones as well. Claiming that the Geneva Conventions apply when they clearly do not, doesn't lend you any credit.

I've though some about embedded reporters, whether they be embedded with the insurgents or the US military.

It is clear that a unembedded reported can still reasonably make the claim of objectivity, as he would not likely have any foreknowledge of events and will only report news after the fact. Once a reporter has decide to put in with the US army or an insurgent group, then objectivity is lost. He has become an instrument of the group he is with.

To know about a military action or an insurgent strike before hand is crossing the line of obsever to participant, lossing the veneer of objectivity in the process.

An AP reporter with foreknowlege of an insurgent strike becomes a vaild target for detention by US forces. A reporter embedded with the US military, would likewise be a valid target by the insurgency.

Reporters can't have it both ways, e.g. claims of objectivity and being embedded with foreknowledge. That's what I think about it anyway.

Quit being such a sophist. Clearly the Gneneva conventions lay out requirements to which combatants must adhere should they wish to enjoy it's protections.

no they don't. That's the whole point. The relevant conventions are not about how warfare should be fought against an enemy --- they are about how nations must treat those exposed to warfare -- be it occupied nations and/or cities, criminals, or "prisoners of war."

And if you had the first f*cking clue about the conventions, you would know that the provisions regarding POW status PRESUME that a detainee has full rights UNTIL it is determined by a competent tribunal that those rights are not applicable. There is NO SUCH DESIGNATION AS AN ILLEGAL COMBANTANT, AND (except for spies) NO ONE IS SPECIFICALLY EXCLUDED FROM THE PROTECTIONS OF THE GENEVA CONVENTIONS. Basically, the only way that you get around the conventions is by prosecuting someone for criminal acts --- be it war crimes, or civil crimes. You can't just say "this person is an "illegal combatant".

I've read the conventions. You obviously haven't. And your interpretation of the conventions removes all protections from American soldiers under the conventions, because any "enemy" can simply declare that an American soldier acted in a manner inconsistent with the full requirements of the conventions, and declare that soldier an "illegal combatant".

p.l.

And if you had the first f*cking clue about the conventions, you would know that the provisions regarding POW status PRESUME that a detainee has full rights UNTIL it is determined by a competent tribunal that those rights are not applicable.

Which US detainees are not being handled in such a way as you describe? The US courts have agreed with this interpretation (don't know if it's based on Geneva or not) WRT to the Gitmo detainees, so they are now getting their hearings. Obviously, the Bush administrsation overstepped in this case.

Rumsfeld said from the beginning that detainees in Iraq would always be processed under the rules of the Geneva Conventions. You may disagree, but aside from some lapses in discipline, this seems to be generally true.

There is NO SUCH DESIGNATION AS AN ILLEGAL COMBANTANT,

WRT to the term "illegal combatant", I'll just refer you to my previous comment.

Why the angry attitude? Do you assume that all of us are among the evil Bushitler minions here? Are you here to rail and rile? Or to convince?

've read the conventions. You obviously haven't. And your interpretation of the conventions removes all protections from American soldiers under the conventions, because any "enemy" can simply declare that an American soldier acted in a manner inconsistent with the full requirements of the conventions, and declare that soldier an "illegal combatant".

Yes they could. But they would be using their interpretations, not mine.

PL, I assume no one has responded to your point about the Afghan stringer because it's a bit silly. You're clearly comparing apples and oranges. How could the Russians legally punish a CBS reporter? Let's assume, however, that Pravda hired a stringer who put Russian troops in danger or at least didn't warn them of impending danger. Of course, that's a silly assumption since Pravda was not a member of a free press (one reason I reject your moral equivalence here) but we'll assume it for the sake of argument. Then I believe some sort of action on the part of the Soviet government against the stringer or the management of Pravda would have been perfectly appropriate.

"ps. Robin what do you think of Hitlers order to kill members of the SAS as spies? Do you think he was right?"

Enemy soldiers (spies) caught out of uniform have been routinely executed as a matter of course for the entire history of war, up to today. That is why the Geneva convention is worded as it is, it was never even a subject of debate that spies and sabateurs are executed when caught.

And btw, by Lurkers interpretation of the Geneva Conventions, if some wacko from Nebraska sprayed down the local mall with machine gun fire and claimed to be Al Qaeda or Iraqi resistance he would be entitled to Geneva protections.

Lets be honest, the GC was not drafted with anything remotely like what we find today in mind. It was clearly defining war between states, and there simply is no war between states here. The US has international authority via the UN to occupy Iraq. Any violence taking place there is by international law an internal criminal matter, and also by international law and custom we could do just about anything we want to those thugs (see Russia, Chechnya). We dont, not out of international obligation, but out of moral standing.

And btw, by Lurkers interpretation of the Geneva Conventions, if some wacko from Nebraska sprayed down the local mall with machine gun fire and claimed to be Al Qaeda or Iraqi resistance he would be entitled to Geneva protections.

Not quite right. It's clear in this case that there would be criminal charges and a competent civil court would assume juristiction. This court would assumably rule on any claims WRT to protections under the Geneva Conventions, probably not favorable to the defendant.

There's no conflict with what PL or I have stated in a case like this.

Fred.... what's silly is your attempt to evade the issue by using Pravda instead of CBS. CBS would be perfectly capable of hiring an Afghani stringer during the occupation of Afghanistan --

basically, your position is that all employees of "american" media have to take a loyalty oath to the United States. That's a complete crock, of course --- but you would clearly prefer to be told what makes you feel good about your government than the facts about your government.

Mark, they were in full British uniform. Definitely not spies. Google for Kommandobefehl

lukasiak: There is NO SUCH DESIGNATION AS AN ILLEGAL COMBANTANT, AND (except for spies) NO ONE IS SPECIFICALLY EXCLUDED FROM THE PROTECTIONS OF THE GENEVA CONVENTIONS. Basically, the only way that you get around the conventions is by prosecuting someone for criminal acts ...

Article four of the Third Geneva Convention defines "lawful combatant". Lawful combatants are protected by the Geneva Convention.

Belligerents who do not meet the definition of "lawful combatant" are not protected by the GC. There is no need for the GC to define "illegal" or "unlawful" combatants, because the GC does not prescribe how such persons are handled or punished. There is no need to "get around" the GC in such cases, because the GC does not apply to them.

Article Five deals with doubtful cases, in which a competent tribunal must determine whether or not a person is a lawful combatant. This tribunal is not a criminal prosecution, it is only a determination of their belligerent status.

Note that the GC is partly intended to prevent POWs from being improperly tried as criminals - not to guarantee them the right to be tried as criminals.

By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations7 and also between [317 U.S. 1, 31] those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. 8 The spy who secretly and without uniform passes the military lines of a belligerent in time of war, 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 prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. See Winthrop, Military Law, 2d Ed., pp. 1196-1197, 1219-1221; Instructions for the Government of Armies of the United States in the Field, approved by the President, General Order No. 100, April 24, 1863, sections IV and V.

US Supreme Court, Ex Parte Quirin, 1942

BTW - the presence or absence of "front lines" in a conflict does not make everybody a lawful combatant.

"It's clear in this case that there would be criminal charges and a competent civil court would assume juristiction"

Why is it clear in that case and not when a soldier tackles some guy without a uniform that just threw a grenade at a Bradley? Its just a matter of where you decide what is 'doubt', accoring to the Conventions.

Lets examine the exact language, in my opinion you guys are not framing them accurately:

"Article 5
...
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"
http://www.unhchr.ch/html/menu3/b/91.htm

You guys seem to be arguing that there is always inherent doubt and hence all insurgents are to be treated as POWs until proven otherwise. I think the only logical reading (IE, in order for the Convention to make a lick of sense since they otherwise would have simply said that all prisoners are immediatly assumed to be protected until a tribunal determines otherwise, which they did not) is that if doubt arises in some tangible way (ie witnesses that claim to have seen the prisoners in uniform or the like), in that case they will have protection until a tribunal can judge. I dont see how captured insurgents who just took potshots at you out of uniform can be said to have any doubt attached to their status. The burden of proof is not on the Americans in this case, once the initial (and obvious) judgement is made on the field. That has always been the way the Conventions were interpretted, and in order to believe otherwise you have to twist the wording in a way that the writers could have easily avoided, had that indeed been their intent.

I think the cameraman's status as a member of the press club is largely irrelevant. If there was evidence that I knew about an attack or a crime beforehand, I'm pretty sure the authorities would detain me. The only significant difference is the U.S. Constitution limits how long I can be detained without being charged with a crime.

The press doesn't get any special privileges.

Patrick

"Mark, they were in full British uniform. Definitely not spies. Google for Kommandobefehl"

In that case I dont hear anyone arguing that combatants meeting the requirements of Article 4 can be abused. So the obvious answer is no.

They didn't fight according to the rules. They used terrorists methodes

Quit being such a sophist. Clearly the Gneneva conventions lay out requirements to which combatants must adhere should they wish to enjoy it's protections.

no it doesn't. it doesn't even come close. In fact, it states that the conventions cover just about everybody to wit

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

&&&&&&&&&&&&&&&&&&&&&&&&&&&

Belligerents who do not meet the definition of "lawful combatant" are not protected by the GC.

let me give you a clue here. Nowhere in the 147 separate articles of the 3rd Geneva Convention does the word "unlawful" occur with regard to combatants. (The word itself occurs only twice, with regard to unlawful confinement and unlawful deportation). The word illegal never appears. The word lawful never appears. The word "legal" appears a couple of times, but never within the context of defining a person's status.

In other words, you are completely full of crap, and just making things up out of whole cloth, based on some website you referenced. You haven't bothered to read the conventions themselves, and have made no effort to understand what they are about.

Why the angry attitude? Do you assume that all of us are among the evil Bushitler minions here? Are you here to rail and rile? Or to convince?

I'm here to have an intelligence discussion, which is practically impossible when morons who have never read the Geneva Conventions, let alone bothered to understand what they mean, start telling me that they define "illegal combantants"....

They don't....and its obvious that they don't. But that doesn't stop wingnuts from basing their entire arguments on that lie.

- really? You're here to have an intelligent discussion with people who've read the Geneva Convenion? Perhaps you could start be doing more readin and comprehending, and less Googling of the text.

Let's take a second - and absent some evidence of experitse in or deep research int othe body of international law that has grown from it, let's simply go to the text .

Article 4

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.

hmmm. Members of armed forces have to meet several requirements (uniforms, central command, etc.) as enumerated below. Militias and volunteers sounds like it clearly covers the Iraqi insurgency, except for the qualifiers in the next paragraph.

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;

Hmm. We claim the insurgency is centrally commanded, Prof. COle suggests that it's a popular uprising. Let's assume that it is centrally commanded. Point for treating them under the provisions of this agreement.

(b) That of having a fixed distinctive sign recognizable at a distance;

Nope. None worn.

© That of carrying arms openly;

Nope.

(d) That of conducting their operations in accordance with the laws and customs of war.

Nope. This suggests that those who practice the kind of insurgency we see in Iraq are simply excluded from the provisions, since this section defines who exactly the conventions apply to. In this sense, they are 'illegal' combatants - they operate outside the law.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Nope. No 'regular armed forces' here.

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.

Aha. So the civlian contracts who are captured and summarily executed by the insurgents are protected by the Convention. But the insurgents aren't.

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.

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

OK, there might be a case with this paragraph, except for the whole 'laws and customs of war' thing.

Sorry, p., but a simple reading the the acts themselves don't support your position.

Want to try again?

And perhaps with less namecalling and a little more mutual respect? I mean if all of the rest of us are that stupid, why bother having a discussion with us?

A.L.

Expressio unius est exclusio alterius. The expression of one thing in one instance implicitly excludes a thing in another.

For example, the expression of rules applicable to "lawful combatants" in one instance, implicitly excludes such rules for non-lawful combatants.

Patrick

lukasiak: In other words, you are completely full of crap, and just making things up out of whole cloth

I think this discussion has outlived its usefulness, before before it becomes necessary to re-invent the wheel and prove the existence of matter.

Mark,
Getting back to this a little late....

You guys seem to be arguing that there is always inherent doubt and hence all insurgents are to be treated as POWs until proven otherwise.

I hadn't really thought about it that far. Thinking a little about it now, it probably would be proper to at least have a process to sort out those detainees claiming protections under the Geneva Conventions. It would be really, really surprising if our armed forces didn't already have a process for this. Perhaps someone in the service can enlighten us?

In the post where you apparently conflated mine and P.L.'s views...

I made the point that the Gitmo detainees were getting their hearings as ordered by the US Courts. I presented that in the context of asking P.L. which US detainees where being denied hearings. He has yet to respond to that request.

I was later trying to point out WRT your hypothetical Nebraska nutjob, that he would be granted due process under civil law automatically, so it really isn't a good example.

lukasiak,
It is obvious that you may have read the Geneva Conventions but you do not understand them. Nor do you understand either the history of the Conventions nor how they are applied.

Nothing could more cleary indicate this than your completely false claim that the "only" way to get someone declared an unlawful combatant was to criminally prosecute them. Nothing in the GC supports that - and in fact, contradicts several provisions.

And frankly, it is a mystery why you bothered to begin this thread. I would be willing to politely correct your misapprehensions all day. But when combined with your own version of internet Tourrette's wherein everyone not immediately converted to your point of view by basking in your presence is a "right wing" "liar", it becomes obvious that your behavior comes from a knee-jerk reaction to your own perception of who your enemies are.

If they are civilians than you can't even shoot at them so if you can shoot at them than they are recognized at a distant and are thus covered by the convention. Besides people who fight in their occupied land against outside forces have more rights

"a", that's not even a serious comment. The requirement for armed forces bearing markings is so that they will not conceal themselves among civilians.

One thing that is very annoying about people who misunderstand and misrepresent the Geneva Conventions is that the provisions that exclude unlawful combatants from its provisions exist for a very important purpose. To provide an incentive to obey the laws of war. Your comments reveal that you do not understand that in fact.

But who says that they conceal their identity (as combatants not their name) during operations. But when they go home they become civilians, lawfully.

"But who says that they conceal their identity (as combatants not their name) during operations. But when they go home they become civilians, lawfully."

Being a civilian isnt like being a crime fighter. You dont take off your mask and go back to being harmless Clark Kent. If you take up arms you are not a civilian, and laying down said arms doesnt automatically afford you that status (obviously). Were that the case, anyone could wander out and throw a grenade and as soon as it left their hand they become untouchable. Absurd.

"I was later trying to point out WRT your hypothetical Nebraska nutjob, that he would be granted due process under civil law automatically, so it really isn't a good example."

I gotcha, and you are quite correct.

Laying down your arms doesn't make you a civilian but being at home does make you a civilian.

Huh?