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Reply #59: Why are you assuming [View All]

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Home » Discuss » Topic Forums » Israel/Palestine Donate to DU
eyl Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jun-28-06 10:39 AM
Response to Reply #58
59. Why are you assuming
that prisoner and combatant and mutually exclusive terms? Especially as, by all reports, their incarceration was more in the line of protective custody than punishment, and they were actually directing activity from within prison (see also what I write later about Article 5).

As for changes in the laws of war, that is a bit difficult. Allow me first to outline what problems I think need solving.

The Geneva Conventions generally split everyone into two groups. On the one hand you have combatants, as defined in GC3 Article 4*:

(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.[br />
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.


On the other hand, you have protected persons, as defined by GC4 Article 4, which basically includes everyone in the power of one of the Parties who is not covered by another of the GC and who belongs to a signatory state which is not neutral in the conflict.

The problem arises when people who fall under "protected person" status commit acts of war. On the face of it, this is handled by GC4 Article 5, which allows the occupying power to suspend the rights of a specific protected person under certain conditions:

Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.


In addition, a protected person, in return to his immunity from attack, lacks the legal immunity a combatant has for acts of war. That is, a soldier who shoots another soldier** is within the law; a protected person who shoots a soldier (except for direct self defense and one or two other special circumstances) can be tried for murder.

Under these rules, the situation breaks down as follows:

1) The IDF is composed of combatants
2) The Palestinian groups are protected persons, since they do not wear distinctive insignia and often are not "commanded by someone responsible for his subordinates", and often do not bear arms openly. As such, they have civilian immunity, but can be arrested and tried. Their rights as protected persons can be suspended if they are inside Israel.

The requirement that combatant bear arms openly and wear uniforms seems to be a major detriment to guerrilla groups. Protocol Additional I loosens this restriction, by allowing combatants not to wear uniforms so long as they bear arms openly when attacking or preparing to attack within the sight of the enemy (Article 43). It has often been interpreted that under other circumstances, the combatant in question enjoys the rights of a protected person. This addition seems to me to be extremely dangerous, because it hampers the other side's ability to distinguish combatants from civilians (remember that civilian immunity is a two-way street - military forces can give civilians immunity because they're assured the latter will not attack them).

As I see it, the major problem is with individuals who would, under the GC, be considered to be protected persons, who nevertheless take action (directly or indirectly) against military or civilian targets who are in occupied territory (where Article 5 allows much less leeway), in particular in territory where the nominally occupying power cannot use police powers against them (either due to enemy control of the territory, reasons of terrain, etc.) Unless "caught in the act", such persons have virtual immunity - as do HQs, supply caches, and so forth.

Taking a stab at solving it, I suppose I would write the laws something like this:
1) Members of regular armed forces, as well as irregular forces as defined in GC3 Article 4, are legal combatants and have all the rights thereof.
2) Nevertheless, irregulars who do not comply with those requirements may still claim status as legal combatants, so long as they fulfill the requirements of having a command structure limit their assaults to military targets as per the laws of war. Such irregulars are forbidden from involving protected persons in their activities to any greater extent than regular forces may. They are deemed to be combatants even at times they are not openly bearing arms.
3) Irregulars who do not fulfill these requirements but take action which threatens the security of the occupying State may, if the security of the State absolutely requires, have their noncombatant immunity suspended (in effect, this basically extends Article 5 to occupied territory).
4) An irregular force may slip from category 2 to category 3 if it violates the laws of war in an egregious fashion. To preserve their rights as combatants, it is the responsibility of the irregulars to distance themselves from the violators, either by expelling them or clearly splitting off, or otherwise making a distinct division from them.
5) The HQs, supply caches, and other command & support facilities and personnel*** of irregulars under #2 or #3 are also deemed valid military facilities with the same status.

This still seems to give regular forces an advantage, but I don't see a way around that without compromising the principle of noncombatant immunity or giving common criminals the opportunity to claim POW status****.

*There are two other categories which I omitted since they're irrelevant.
**Assuming there aren't special circumstances, such as when one of them is a prisoner of the other
***This is still giving me some trouble; I'm trying to think of a way to distinguish between military control and civilian control
****Though the results may be amusing. There was a Law & Order episode where a gang of robbers (who had killed a guard while robbing a Lottery truck) tried to claim POW status since the were "at war with the government of the US". I was a bit disappointed that the ADA's response wasn't "sure, no problem; let me just talk to the US Attorney (or whoever is the relevant personage) and set up a war crimes tribunal in a military court".
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