Talk:Unlawful combatant/Archive 4

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See Archive 2 for the history of talk page before this time stamp Philip Baird Shearer 16:44, 15 Jun 2005 (UTC)

Page 3

(Part II) Now regarding fundementalist crazies. Yes, they are deluded by religion, hence therefore we must treat them as children. We must in essence, create conservators or guardianships, administrated by secular rulers in cahoots with the Western forces of Dar al Harb because they are incapable of making decisions for themselves. We can speak lofty of human rights, but in this particular case, we adjudge them as being incapable of negotiating and playing by the same rules as the civilized world does. Their refusal to abide by the Laws of Civilized Nations ( as referenced in the Nuremberg War Crimes Tribunal, renders them "uncivilized", and we can only pretend their alliegence to Islam is not what it is). This creates a politically incorrect problem for International Law, cause the true interpreation of Islam appears "uncivilized", under our own Western dictatated definitions of International Law. They are at war with the enemies of God. The United States Constitution, the United Nations Charter, and the Geneva Convention, are all blasphemous against Allah, presupposing that man can take Allah's place. They seek to destroy all these infidel insitutions and replace it with Shar'ia (the way, or path). We, in our arrogance, deem them unfit to exercise their own God-given rights, because of course, we are enemies of Allah. Hence we seek to impose the Geneva Convention upon them, an institution they themselves are at war with. (Save all the arguements about how we really seek to impose its restraints upon ourselves til later, irregardless of whether these legally incapacitated children agree or not). The problem is, we are not dealing with children here. These persons know and understand full well the issues involved, and better, I might say, than the average Western does. They may even interpret enforcement of the Geneva Convention on them as violation of their rights, cause it once again imposes a system of Western hegemony (i.e., the encrouchment of the forces of Dar al Harb within the historical lands of Dar al Salam) upon them. (end Part II) Nobs01 17:18, 15 Jun 2005 (UTC)

This is not a forum. I suggest trying --Ben 00:28, 21 Jun 2005 (UTC)


  • Unlawful combatants may retain rights under the Fourth Geneva Convention in that they must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".
  • However as the United States' courts have not yet ruled that any of the detainees have faced a "competent military tribunal", this phrase is not a legal description of the detainees' status.
These sentences in the opening of article seem contradictory, but it may be that I am misreading them, can someone give a clarification, or possibly reword it. Where does the idea that they must face a "competent military tribunal" before they are labeled come from? Can we get a reference or a link there? -bro 05:13, 16 Jun 2005 (UTC)

You were right, it needed clarification, so I have added Art 5 GCIII. I do not think there is a need for a reference as the process and the refernces are provided in the main body of the article. Philip Baird Shearer 08:06, 16 Jun 2005 (UTC)

  • It is likely that if they have been found to be "unlawful combatant" by "a competent tribunal" under GCIII Article 5

This is another reference to the "competent tribunal", and it seems to reference it coming from GCIII article 5, which is quoted (I assume in full) above it, and my tired eyes do not see this wording, or even idea in that article. Anyone else wanna take a look? By the by, thanks philip, much better. -bro 02:57, 19 Jun 2005 (UTC)

Ahh, I see, its in reference to "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." earlier in the article. It still seems to me that it is not neccessary for a "comptent tribunal" to rule on a person for them to become an "unlawful combatant", only "Should any doubt arise". Perhaps its not unclear, but it seems to be saying that every one must face this tribunal before being deemed an unlawful combatant. -bro 03:04, 19 Jun 2005 (UTC)

The American Supreme Court seems to think that this is true. From the article "On July 7, 2004, In response to the Supreme Court ruling, the Pentagon announced that cases would be reviewed by military tribunals, in compliance with Article 5 of the Third Geneva Convention." Philip Baird Shearer 09:59, 21 Jun 2005 (UTC)

I guess we can assume then that the supreme court provided this 'doubt'. I'm not all too familiar with that particular ruling, I'll try to give it a read over, or perhaps someone who has already might be able to shine a light on it. The wording of article 5 itself doesn't lend itself to the idea that they must face a tribunal to be classified as an unlawful combatant, but I've certainly seen stranger rulings. Regards. -bro 10:26, 23 Jun 2005 (UTC)


From history ( 17:24, 26 Jun 2005 GPS Pilot):

One paragraph says the term is not clear or well understood; the following paragraph gives a clear, definitive definition. Can't have it both ways.

I am confused, the following paragraph to the one which you (GPS Pilot) altered by removing "So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not." is:

The Geneva Convention relative to the Treatment of Prisoners of War, 12 August (1949) (GCIII) of 1949 defines the requirements for a captive to be eligible for treatment as a prisoner of war (POW). A lawful combatant is a person who commits belligerent acts but if captured, would be a considered POW. An unlawful combatant is someone who commits belligerent acts, but does not qualify under GCIII Articles 4 and 5."

Which does not seem to me to give a clear "definitive definition" of the term "unlawful combatant". So which paragraph if any is GPS Pilot referring to? -- Philip Baird Shearer 18:15, 26 Jun 2005 (UTC)

I considered the sentence, "An unlawful combatant is someone who commits belligerent acts, but does not qualify under GCIII Articles 4 and 5" to be a clear definition of "unlawful combatant." By the way, thank you for adding the two links about Combatant Status Review Tribunals. -- GPS Pilot [03:21, 27 June 2005 (UTC)]

The paragraph is a re-write of the quote lower down the article by a legal advisor at the Legal Division of the ICRC. There is at least three other groups that I can think of who qualify as unlawful combatants in addition to those who are not GCIII POWS (and no doubt others can think of more):
  • Combatants who are tried and found guilty of war crimes under their own military code.
  • Combatants who are tried and found guilty of war crimes by an international court or tribunal, who are detained and handed over by their own side for trial and not by an enemy.
  • Those who are alledgedly unlawful combatants and are not brought to trial eg mercenaries who are not captured by an enemy.
--Philip Baird Shearer 4 July 2005 19:37 (UTC)

Reuters report

I added the Reuters report to the paragraph which used the DoD Combatant Status Review Tribunals Updates, to present a more NPOV to the paragraph and I am going to revert the change to the paragraph to keep the NPOV. To explain why I will answer the two points raised by GPS Pilot in the history:

The Reuters article contains two comments in favour of the tribunals, and one critical comment. Selectively, only the critical comment had been reproduced here. Now all three appear. 05:57, 29 June 2005 GPS Pilot

There is no need to mention the two DOD official to because to paraphrase Mandy Rice-Davies "Well, they would, wouldn't they"? and the first half of the paragraph reports that the DoD has stated that their internal procedures have met the criteria for GCIII art 5 for a "competent tribunal". But as they were forced to do this by the U.S. Supreme Court, many (not just thoses sympathetic to the detainees alledged cause,) are not sure that the tribunals were fair and impartial and they will continue to think that until the Supreme Court rules on them. The comment by one of the detainees lawyers is a way to balance the DoD statement.

What is the point of reporting that only four unlawful combatants have been charged? Prisoners of war are not charged with crimes, and unlawful combatants have fewer rights then prisoners of war. 05:34, 29 June 2005 GPS Pilot

Yes they do have fewer rights than POWs but if they were unlawful combatants then they should be charged with war crimes or crimes against humanity. That so few have been charged suggests that the DoD's case of them being war criminals may not be very strong, or that the punishment for the crimes that they have committed would not produce very long sentences. For example if a person was fighting out of uniform, but had not killed anyone, then given the length of sentences issued in the Abu Ghraib torture and prisoner abuse the might well walk free given the time they had already spent in prison. Either way that so few have been charged is note worthy. --Philip Baird Shearer 4 July 2005 19:37 (UTC)

I don't see that as true. There is no need to be charged with anything. Engaging in combat is sufficient alone to detain for the duration of the conflict. Engaging in combat unlawfully is suffficent to strip you of Convention protection as I read it, same as being a national not covered by the Convention. So there is no need to charge with war crimes or otherwise. Also, the Supreme Court ruling is not apropo because Gitmo is under US control such that additional military tribunalsand due process is afforded Gitmo prisoners, including habeas corpus. The ruling is not based on Gen. Con.. Cyferx 05:40, 11 July 2005 (UTC)

All unlawful combatants are civilians?

This statement is made in the article: If that tribunal rules that the combatant is an "unlawful combatant" then their status changes to that of a civilian which may give them some rights under Fourth Geneva Convention. How so? Where is the citation for this? It seems rather that if they are not determined to be a lawful combatant, but they engaged in combat anyway, then they are a non-lawful combatant and not subject to the protections of the Convention. It seems clear that the Conventions were meant to do more than encourage proper treatment of POWs but to encourage proper conduct of wars, including wearing of identifying insignia and carrying arms in the open and so on to help protect civilian populations. Even when hostilities occur too rapidly for the donning of insignia, lawful combatants must carry arms in the open.

I think that it is clear from the documents that there are four kinds of status under the Conventions: lawful combatants, civilians supporting lawful combatants, non-combat civilians, and those not protected by the Convention, which include those individuals from non-contracting countries and others who do not fall into one of the previous three categories. The idea that those combatants who do not follow the rules of war are somehow just simply civilians would make the Conventions meaningless. Why would we care then how they conducted themselves in combat?

So I think the article should state the facts, or if it is going to give novel legal opinions, then it should cite the source of these opinions. --Cyferx 02:19, 11 July 2005 (UTC)

The idea that those combatants who do not follow the rules of war are somehow just simply civilians would make the Conventions meaningless. Why would we care then how they conducted themselves in combat?
Civilians who engage in warfare are commiting crimes (murder, assault, etc.) so we would be concerned about their conduct for this reason. The Geneva conventions legalise certain kinds of warfare which are considered legitimate, but they do not need to specify illegitimate acts of war as illegal because acts of war are already illegal within ordinary criminal law. It is only because we have special laws and conventions relating to warfare that soldiers are not in general taken to be criminals. At least, that's the way I see it, I'm certainly no expert so corrections are welcome. Cadr 06:45, 11 July 2005 (UTC)
I would agree except that they do not receive the same protection as non-violent civilians, or even civilians committing other crimes, i.e., attacking the occupying force in a non-military manner often subjected one to execution (similar to looters who may be shoot on sight). Granting civilian status to military personnel who violate the Conventions is contrary to the intent of the agreements. Military prisoners before were often killed. The point is that if you agree to fight fair then you will be treated fair, rather than poorly treated or even executed. In any case, I think this opinion should be cited and not be a bit of original research or novel opinion. Cyferx 04:09, 13 July 2005 (UTC)
Well, if their status has to be decided by a competent tribunal before it can be determined whether or not the convetion applies to them, surely summary execution of unlawful combatants would be prohibited by the convention. Having said that, I think this has more to do with the law of the country whose military is doing the executing than with the convetions themselves. If you are not explicitly granted rights by the convetions, you have whatever rights your government (or occupying power) grants its citizens/subjects. Unfortunately, this may or may not include the right to due legal process. Cadr 10:33, 13 July 2005 (UTC)
That's not how it reads. Triubunals are only needed if their staus is questionable. And I am still only looking for a cite. I am really not advocating for one reading over another, I am saying that you have to have a cite for statements like that. Who is saying it? Citation: It is what makes a work authoritive rather than just talking off the top of one's head. Cyferx 18:47, 13 July 2005 (UTC)
Fair point. To be honest I was expecting someone who knew more about this would post something here, but since they haven't I'll have to do some research. Cadr 07:13, 14 July 2005 (UTC)
I have added a footnote to the article to cover this point from a footnote in a weblink which cits . Footnote 1: International Committee of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: 1958), p. 51 (emphasis in original). The International Criminal Tribunal for the Former Yugoslavia, charged with prosecuting war crimes and crimes against humanity committed during the recent conflicts in the Balkans, has explicitly affirmed this principle in a 1998 judgment, stating that "there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied." Celebici Judgment, para. 271 (1998).
Celebici Judgment: Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No. IT-96-21-T Delalic et al. (I.T-96-21) "Celebici" 16 November 1998 Part III B, Applicable law 2. Status of the Victims as "Protected Persons" See: Para. 271 continues: "[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view." footnote to: Jean Pictet (ed.) – Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) – 1994 reprint edition.
--Philip Baird Shearer 18:22, 2 December 2005 (UTC)

BigRat 17:30, 28 August 2005 (European Central Time)

There's no mentzion of the "freedom fighter". This might not be 100% relevant as to the legal issues, by historically it plays a very large role - Vietnam, Italy (Garibaldi) and Greece (Byron) for example.


The footnote numbers in the article do not match up the enumerated list. (Previous unsigned comment by on 9 October 2005.)


I am reverting the introduction back to a simpler one used earlier in the year because the current one is full of inaccuracies. For example "is a spy, saboteur or a terrorist" This is just not true. The SAS are saboteurs but they fight in uniform so are not unlawful combatants. What is a terrorist? There is no mention of them in the Geneva conventions. What about unlawful combatants who are mercenaries, or soldier who have breached the law of war through perfidy? etc, etc.

There are many special cases, as well, including those in recent years of armed militants who are deemed not to enjoy protection of the Geneva Convention (GC) on the grounds that they are not part of any country which is a treaty signator.

This has not changed in recent years and is a POV statement. (It might be a American legal POV but that does not make it any less true under international law). What has changed in recent years is the introduction of the International Criminal Court and that more countries have signed up for Protocol I which will become part of international law binding on all eventually if enough sign up to it. See Judgement : The Law Relating to War Crimes and Crimes Against Humanity: Several of the belligerents in the recent war were not parties to this Convention [ Hague Convention of 1907]. In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt "to revise the general laws and customs of war," which it thus recognised to be then existing, but by 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the Charter.

Nevertheless, many Western advocates who oppose America's conduct in the War on Terrorism advocate extension of combatant status to unlawful combatants, claiming various humanitarian, legal and political grounds. There is the humanitarian idea that everyone should get a fair trial. There is the legal theory that the Geneva Convention automatically applies to all enemies of treaty signatories. There is the political idea that requiring America to extend GC protection to its detainees is good, because it will otherwise undermine its military strategy.

This is just US specific and should go in "United States" section if anywhere. --Philip Baird Shearer 09:40, 2 December 2005 (UTC)

International criticism of unlawful combatant status

I think this section should be reserved for the problems under international law of the creation of "unlawful combatant status" in that because there is no mention of the status in international treaties, it is not clearly defined and the worry is that the US is setting a precident which will be abused by others in the future.

Any criticisms of the US administrations policies on this issue should be in the section "Critics and Proponents"

It seems to me that the problem in the US has been that because the last major cases, (before the current ones), relating to unlawful combatants were ex parte Quirin (1942) and Johnson v. Eisentrager in (1950). Consequently any development in international law Particularly Geneva conventions in 1949, was not reflected in the domestic laws of the USA. It seems to me that as the cases grind their way through the US courts the critics of the US government are being proved correct. For example one of the early criticisms was that the detainees should be subject to ("a competent tribunal" GCIII (article 5) if the US government said that they were "Illegal enemy combatants". The US government argued this was not true, but in the end the courts ruled that it was, and the US government then put all the detainees through "Combatant Status Review Tribunals". So it is taking time but the US internal laws and practices are gradually following international law.

One thing to bear in mind thought is that if a detainee is a citizen of a neutral country or the US then although GCIII applies for all combatants (and hence the need for "a competent tribunal"), GCIV does not apply to them, and an argument can be made for holding those who do qualify under GCIV under GCIV Article 42 because the "security of the Detaining Power makes it absolutely necessary".

--Philip Baird Shearer 17:58, 3 December 2005 (UTC)

You removed my reference to international law. I don't understand why because this is exactly why other countries criticise the US. Clearly this should be mentioned in this section. Therefore I inserted it again. Of course if you think this is does not constitute international critique you might want to explain why before removing it again.
The Geneva Convention is not dependent on US law. Any citizen from a country that signed is entitled protection. I know the Bush administration claims it is not but that is exactly why this comment is needed in this article. Furthermore, you will see that the references supplied explain why the Bush administration's stance is thought to be wrong.--Nomen Nescio 01:58, 4 December 2005 (UTC)

I thought I had explaind my reasoning in my last posting to this page this section (17:58 3 Dec)

  • Any criticisms of the US administrations policies on this issue should be in the section "Critics and Proponents"
  • .... For example one of the early criticisms was that the detainees should be subject to ("a competent tribunal" GCIII (article 5) if the US government said that they were "Illegal enemy combatants". The US government argued this was not true, but in the end the courts ruled that it was, and the US government then put all the detainees through "Combatant Status Review Tribunals".
  • etc etc

Obviously any civilised government must obey its domestic law. Day to day international law only exists to the extent that treaty obligations are incorporated into domestic law. There is a difference between criticising US government policy and the implications of a president being set which creates a new de facto status for some combatants. --02:48, 4 December 2005 (UTC)

There was critisism and international criticism. Since I placed it under international criticism, which it is, I don't understand the problem. However, I have merged both paragraphs so there can no longer be any confusion. Hope you agree.
As to the Geneva Convention. The Bush administration has not fulfilled its obligation for two reasons. 1 Not all captives have been granted a review by the so called "competent tribunal." 2 The "Combatant Status Review Tribunals" were not exactly what is meant by "competent tribunal."
Civilised countries are bound by domestic AND international law. Whatever the Bush administration my claim, the U.S. still is bound by international law prohibiting violations of human rights, prohibiting torture, prohibiting rendition, demanding due legal proces, et cetera. If not, than why is SH on trial? His local law did not prohibit human rights violations. This means that the current use of unlawful combatant is invented by the Bush administration. To allow for that there has to be a review by a "competent tribunal." This has not been done adequately. By not doing so the US violates the Geneva Convention, and no, the president does NOT have the power to do so. Even mr Bush is bound by U.S. AND international law! Which explains why this administration was looking for loopholes regarding war crimes, see the Gonzales memos. And it also explains this administration vehemently resisting the International Criminal Court.--Nomen Nescio 18:55, 4 December 2005 (UTC)

A civilised state may be bound by some international treaties to which they have not subscribed, however that is still very debatable. But an individual is bound by domestic law. If of course the state has international treaty obligations and they have a competent judicial system the two will eventually tally. Which is what has been happening in the US as the cases grind their way through the courts. To be more specific for a moment: Which captives who are called as "illegal enemy combatants" by the Bush administration have not been in front of a "Combatant Status Review Tribunals"? Who says that they are not "competent tribunal[s]" in the meaning used in GCIII? (See footnote 19 in the article)

I think there should be two different sections. One for the academic debate over what is an unlawful combatant, and what their status is under international law. Is there such a thing as an unlawful combatant under international law? For example is a mercenary an unlawful combatant or just a common criminal?

That is different from criticisms of the specific U.S. administration's policies, which are gradually through the US legal system are gradually being brought into line with international law. BTW it is two way street, the Interpretation by the US Supreme Court of US treaty obligations will have an influence on how others interpret international law.--Philip Baird Shearer 20:48, 4 December 2005 (UTC)

Who has been denied a "competent tribunal?" How many of those held on Guantanamo Bay have been in front of such a competent tribunal? Furthermore, what does this mean? I think this would suffice to warrant the statement: not all captives have been in front of ...........
Of course you are right that it is possible to be bound by international law you have not signed to. However, that is not the case. The US has signed the Geneva Convention, the US has signed the treaty against torture, the US has signed the universal decleration of human rights. So, I fail to see what you are trying to say. At this moment, the US is bound by all these international treaties, and the use of "illegal combatant" clearly violates several of them. Heck, Padilla has shown there is even a violation of the US constitution. Also, Padilla shows how the Bush administration tries to evade legal challenges to their policies regarding "enemy combatant" status.
As to the legal principle of unlawful combatant, I think the entire notion is ridiculous. Just think of it, how can a combatant be illegal? Is he illegal because you just deny he is at war with you? Is he illegal because he is wearing the wrong clothes? Is he illegal just as the notoriuos "illegal alien?" Is he illegal because he was not at the location you claim he had to be? You see these are exactly the arguments used by the US administration, which if you look at US actions would also apply to US officials (rendition!). Each of these explanations is not only illogical, they also warrant a debate on the legallity under international law. But is this not what critics are doing? Therefore the two different paragraphs in my opinion could be in one. But let's leave it as it is. --Nomen Nescio 09:42, 5 December 2005 (UTC)
  • Is he illegal because you just deny he is at war with you? No to be an enemy combatant either legal or illegal you have to be in a state of armed conflict with a Power that person fights for.--Philip Baird Shearer 10:35, 5 December 2005 (UTC)
In other words they are a POW!--Nomen Nescio 19:14, 5 December 2005 (UTC)
  • Is he illegal because he is wearing the wrong clothes a combatant is "obliged to distinguish themselves from the civilian population" but "Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly". Protocol I Which is a looser definition than GCIII and has not been signed by the US, but even so there are people who do not fit that criteria.--Philip Baird Shearer 10:35, 5 December 2005 (UTC)
As we know the CIA does not introduce themselves as such. This would mean they are unlawful combatants. Furthermore, several of these unlawful combatants have been apprehended outside the battlefield (Europa, Canada, and the US) why should they be seen as combatants?--Nomen Nescio 19:14, 5 December 2005 (UTC)
  • Is he illegal just as the notoriuos "illegal alien?" No--Philip Baird Shearer 10:35, 5 December 2005 (UTC)
  • Is he illegal because he was not at the location you claim he had to be Not sure what you mean by this.--Philip Baird Shearer 10:35, 5 December 2005 (UTC)
Several of these unlawful combatants have been apprehended outside the battlefield (Europa, Canada, and the US) why should they be seen as combatants?--Nomen Nescio 19:14, 5 December 2005 (UTC)

They are "unlawful combatants" if they are found to be so by a "competent tribunal" under GCIII or if found to be such by their own side after a similar tribunal usually a court martial. --Philip Baird Shearer 10:35, 5 December 2005 (UTC)

Indeed, after they have been in front of a competent tribunal.--Nomen Nescio 19:14, 5 December 2005 (UTC)

Critics and Proponents

I am not convinced that the paragraph "Furthermore... Because of this legal experts contradict the U.S. administration's claim they can deny a prisoner of war status and detain suspects as "unlawful combatant." is needed. It repeats the main part of the article about GCIII and GCIV and only becomes relevent if there are detanees who the US administration called "illegal enemy combatants" who have not been in front of a GCIII "competent tribunal". So:

  1. Which captives who are called as "illegal enemy combatants" by the Bush administration have not been in front of a "Combatant Status Review Tribunals"(CSRT)?
  2. Who says that CSRTs are not "competent tribunal[s]" in the meaning used in GCIII?

See footnotes 19 and 21 which include: [1] and [2])

There is a further argument that if a detainee has been in front of a "competent tribunal" and be have found to be an "unlawful combatant" and they come from Afganistan (so fall under under GCIV) then they should be put on trial under the "fair and regular trial prescribed by the present Convention". This seems to me a more relevent area to discuss as that is the area which is still not settled in the US courts. --Philip Baird Shearer 10:35, 5 December 2005 (UTC)

1 As you know, many unlawful combatants have been apprehended in Europe, Canada and the U.S.. Since these suspects were not engaged in combat, nor even present on the battlefield, this means they are civilians. Or, at best criminals. They do not fall into the category of combatants. Therefore unlawful combatant seems unwarranted and not supported by the Geneva Convention.
2 Some have not been in front of a "competent tribunal," as can be seen here.
If they are on a list of "Ghost Prisoners" then persumably the US administration is not claiming that they are detained "enemy combatants". -- Philip Baird Shearer 00:08, 30 December 2005 (UTC)
Which is even worse. The US is holding people without informing the Red Cross. Yet another violation of the Geneva Convention! And possibly a war crime.--Nomen Nescio 13:30, 12 January 2006 (UTC)
3 The Combatant Status Review Tribunals are flawed, which can be seen in these cases: a A military tribunal determined last fall that Murat Kurnaz, a German national seized in Pakistan in 2001, was a member of al Qaeda and an enemy combatant whom the government could detain indefinitely at the U.S. military prison at Guantanamo Bay, Cuba. <......> evidence, recently declassified and obtained by The Washington Post, shows that U.S. military intelligence and German law enforcement authorities had largely concluded there was no information that linked Kurnaz to al Qaeda, any other terrorist organization or terrorist activities.[3]. b Moazzam Begg in which the conclusion was that the Combatant Status Review Tribunals do not have the discretion to determine that a detainee should be classified as a prisoner of war -- only whether the detainee satisfies the definition of "enemy combatant" as provided in references (a) and (b). This is incorrect since such is the entire raison d'etre of any "competent tribunal." The status of these prisoners is supposed to be determined by a competent tribunal. Oddly enough this is not done, which would make this ruling in violation of the Geneva Convention. c In an ostensible effort to comply, the Department of Defense (DoD) impaneled combatant status review tribunals (CSRT) for the 560 still-imprisoned detainees. The CSRT conducted rudimentary proceedings to ascertain whether the detainees were enemy combatants and released three dozen who, the tribunals concluded, were not. The CSRT afforded detainees few basic protections. Many lacked counsel. The CSRT also informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified. Moreover, detainees had no right to present witnesses or to cross-examine government witnesses.[4][5] d U.S. District Judge Joyce Hens Green said the reviews designed to determine (their status) are so stacked against them that their findings cannot be trusted. <.....>Green criticized the military for using what she called an illogically broad definition of "enemy combatant" in deciding to hold Muslim men from dozens of countries for as long as three years. She said in many cases people were detained simply for being alleged members of groups that do not like Americans. Green quoted extensively from the tribunal proceeding against Mustafa Ait Idir, 34, an Algerian living in Bosnia who was accused of plotting with others to blow up a U.S. embassy there. Idir noted that a Bosnian court found no evidence against him and repeatedly but unsuccessfully asked tribunal officials to present their evidence that he was an al Qaeda fighter. He argued he could not prove a negative, and that he would hit a person who claimed he was a terrorist in the face, which prompted the tribunal members to laugh. The exchange "might have been truly humorous had the consequences of the detainee's 'enemy combatant' status not been so terribly serious and had the detainee's criticism of the process not been so piercingly accurate," the judge wrote. [6] e It appears ... that the procedures of the Combatant Status Review Tribunals do not qualify as status determination under the Third Geneva Convention. <......> The fact that no status determination had taken place according to the Third Geneva Convention was sufficient reason for a judge from the District Court of Columbia dealing with a habeas petition, to stay proceedings before a military commission. Judge Robertson in Hamdan v. Rumsfeld held that the Third Geneva Convention, which he considered selfexecuting, had not been complied with since a Combatant Status Review Tribunal could not be considered a ‘competent tribunal’ pursuant to article 5 of the Third Geneva Convention.[7]
4 Even if we disregard the previous points, it is evident the Bush administration violates article 5 of the Geneva Convention, which states such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. This clearly means that were we to accept the invented status of unlawful combatant, this could only be used after and not before their status has been determined. The Bush administration first determines prisoners are unlawful combatants, denying a prisoner of war status, and then looks if that is warranted. This alone constitutes a violation of article 5. A "competent tribunal" is only necessary if one would like to choose a different status, let's say unlawful combatant. It is not meant to determine if these prisoners are POW, that they are until such time as their status has been determined by a competent tribunal.
It is evident there are numerous flaws in the position taken by the Bush administration and therefore these misrepresentations of international law should be discussed in the article. As to your critique on the military tribunals, that is correct. This violates the right to due legal process. --Nomen Nescio 16:19, 5 December 2005 (UTC)
Not "engaged in combat"? Would this exclude the unlawful combatants planning and carrying out thier operation (eg., planning terroristic action around the globe)? ... what is the area of the "battlefield" concerning terrorist? JDR 21:38, 5 December 2005 (UTC)
You clearly think it is necessary to arrest any person, at any place, at any time. Personally I think this constitutes a police state. --Nomen Nescio 22:19, 5 December 2005 (UTC)
Sorry but the extreme hypothesis fails... a "unlawful combatant", "terrorist", or other "militant" engaging in "combat" does not equate them with individual opposing the actions of the government of the day without being violently opposed to the system (a political or social one; eg, conducting "operations"). The difference of the two does not dictate that it is "necessary to arrest any person, at any place, at any time". Sincerely, JDR 22:37, 5 December 2005 (UTC)
Evidently you miss the point. On what grounds is the "terrorist" arrested? As you know, many so called unlawful combatants turn out to be innocent. Not merely because the Red Cross or Human Rights Watch says so, even US military acknowledges this. And what is the difference between a terrorist and people disagreeing with the government (you are aware the FBI has been targetting human rights and animal rights groups)? With that in mind how do you prevent innocent people (any person) to be arrested? And on what grounds can such a person be arrested in a non-combat enviroment (any place)? Don't forget we are talking about people being appprehended and determined to be unlawful combatant, not just criminals. --Nomen Nescio 22:49, 5 December 2005 (UTC)

I would like to answer you points here and develop them further but it is taking time to put the information together (a lot to read) So please give me 24 hours. Philip Baird Shearer

No problem.--Nomen Nescio 22:20, 5 December 2005 (UTC)

I have not forgotten that I want to make some points. But reading the CSRT article led me to Moazzam Begg and this link in the external links: documents from Moazzam Begg's Combatant Status Review Tribunal, hosted by

It is a PDF file. Which I have run that through a program "pdftotext", but the text is not all that clean and it is taking time to clean it up. I am doing this because the articles have quotes from the documents which include references to other documents like the terms of reference for the Tribunals which would be useful feed back into the articles. However Page 100 of the PDF is a reference document and it is not the Wikipedia source but the Wikipedia commentary on Geneva Three referenced as "exhibit D-f" and on the page is hand written "Exhibit D-f" so it is not a transcription mistake on the copy, it was a mistake in the original archive. The mind boggles at the thought that no one noticed that it was not the correct document and that page 2 owards of the supposed document is a different document from another web site! There is an intriguing but worrying thought, that who ever presented the documents to be appended to the hearing's main documents was reading Wikipedia for tips! --Philip Baird Shearer 23:43, 8 December 2005 (UTC)

Of course there is no hurry. The points warrant serious discussion, so take your time.--Nomen Nescio 11:17, 13 December 2005 (UTC)

I think that the Moazzam Begg transcript raises a lot of interesting issues particularly on the terms of reference of the CSRT. Presumably this will eventually be addressed by the US courts. --Philip Baird Shearer 00:08, 30 December 2005 (UTC)

Recent events have made it evident no legal review will take place. If the Bush administration has its way Habeus corpus is suspended and all pending cases will be stopped. How about unlimited and unchallenged power?[8][9]--Nomen Nescio 13:38, 12 January 2006 (UTC)


I am going to revert most of the changes made to the introduction because UC is not just an American administration invention. As the rest of the page makes clear. The "Detaining Power" may choose to accord detained combatants the rights of prisoners of war is not true. Not to grant POW status would be a war crime. The original wording was correct. --Philip Baird Shearer 21:32, 5 December 2005 (UTC)

Maybe not only, but certainly primarily a US administration POV.
Added criticism. This should be included in introduction, hope this is acceptable.
"The "Detaining Power" may choose to accord detained combatants the rights of prisoners of war is not true." Since the status of "unlawful combatant" is what is debated don't you think "prisoner" would be preferable. Will leave it, but please explain why "unlawful combatant" should be used.--Nomen Nescio 22:12, 5 December 2005 (UTC)

I will come back to the other section a little later (as I have been busy doing other things). But I think that line you addded to the introduction "Legal experts, however, doubt this interpretation of the Third Geneva Convention" should be removed. The reasons for this are:

  1. reference 1 is a critisism of the Bush Administration interpretation of GCIII not about the concept of "unlawful combatants" in general. If it were to go anywhere it ought to be in the section "Critics and Proponents". But I do not think it is not a very good analysis of GCIII, for exampe it ignores such things as the status of mercenaries, perfidy etc (because I guess it is conentrating on critisising the US administration's current position), but that is another matter, and if you like I could go into details.
  2. Reference 2 is a none starter because in the last paragraph of the article it says "Nonprivileged or unlawful combatants maybe charged with criminal offenses" So it clearly recongnises that such a status exist.
  3. and as the reference in the article (The legal situation of unlawful/unprivileged combatants) which says "They ["unlawful combatant", "unprivileged combatants/belligerents"] have, however, been frequently used at least since the beginning of the last century in legal literature, military manuals and case law. The connotations given to these terms and their consequences for the applicable protection regime are not always very clear."

So we now have at least two articles which oppose the US administrations interpretation of UC, but both recognise that such a status exists under international law. --Philip Baird Shearer 12:32, 13 December 2005 (UTC)

It is true that legal experts doubt this interpretation of the GCIII. It is also interesting and important. Kevin baas 20:47, 14 December 2005 (UTC)
I am sorry but I do not understand what you have written please could you explain further. -- Philip Baird Shearer 22:46, 14 December 2005 (UTC)

For definitions see enemy combatant, combatant status, mercenaries—The preceding unsigned comment was added by Nescio (talkcontribs) 16:15, 16 December 2005 (UTC)

My comment was addressed to KB, but thanks for the information Nescio. The first document is about the internal US postion on the status of US administration's "enemy combatant", so it is not relevent to the introduction of this article, but is relevent to the US domestic section. However in the document, first paragraph page 4 it says: "The [administration's] term "enemy combatant" actually encompasses two previously-recognized classes of detainees during wartime. "Lawful combatants," or prisoners of war..."Unlawful combatants" do not receive these protections and by additionally be....". So this document agrees that the status "unlawful combatant" exists, primarily in US law, but it does not argue against the SC Ex parte Quirin interpretation of the laws of war on this issue.
The is a useful website. But it has nothing to say on the interpretation of unlawful combatant as expressed at the start of this article. BTW there is at least one mistake in the page "A mercenary does not have the right to be a combatant or a prisoner of war. (Protocol I, Art. 37)" should read "Art. 47 (1)". Philip Baird Shearer 09:50, 17 December 2005 (UTC)

Globalize & Too big

  • This article is too big. Law articles should be quoted only partially, and sub-sections lead to main entries Prisoner of war as the status of POW is discussed well enough over there. Here is not a discussion of the POW status, but of the "illegal combatant" status. Which brings us to the 2nd point:
I do not think that main articles is necessarily a good way to go as the same can be said with in line links which look less disjointed. --Philip Baird Shearer 16:48, 9 January 2006 (UTC)
  • This article does not reflect world-wide views. Why? Because it lacks the most elementary NPOV, which would be to write in the first sentences that the Bush administration has invented this status. This is no judgment on this administration, but a fact on which all can agree. Defenders of the necessity of this new status can argue in favor of it, but we must all admit that this status is a consequence of 11-S !
UC is not a new term. It has been around for at least 100 years (and the references in the article say as much). It has been in US domestic law at the highest level since at least 1944 (and the references says as much). This is an international encyclopaedia not a US one, for Bush and the US POV should be under the USA section. -Philip Baird Shearer 16:48, 9 January 2006 (UTC)
  • I made sweeping changes, so i understand why they have been reverted. However, some, such as quoting philosopher Giorgio Agamben's Homo sacer are genuine additions to the entry which have no true reasons being deleted. Let's take those issues separately, and see if we can reduce the size of this entry... Kaliz 15:57, 9 January 2006 (UTC)
A much better idea. --Philip Baird Shearer 16:48, 9 January 2006 (UTC)
Maybe you could first discuss before making such numerous changes. Especially since many of your objections to the neutrality are met by a myriad of references.--Nomen Nescio 17:59, 9 January 2006 (UTC)
Moved subsection "Other countries" here:

"Other countries, including the United Kingdom, Israel, Australia, Canada, and New Zealand make theoretical distinctions between lawful and unlawful combatants and the legal status thereof [citation needed]." No source backing it up (if there is one, please put an endnote). As shown by this myriad of references, we're talking about a "post-11 S no man's land" or other "juridical vaccum". Kaliz 19:26, 9 January 2006 (UTC)

Britain and other Commonwealth countries make this distinction. Lord Kitchener proclamation against the wearing of British uniforms by the Boers during the Second Boer War. The Boers were forced to do this during the later stages of the war as nearly all their supplies and equipment was aquired through raiding. See Commando Chapter 22 Moss-Trooping: Deneys Reitz
There was plenty of beer and spirits at the inn, and although few of the men had tasted liquor for a year or more, there was no drunkenness, but Piet de Ruyt, our Hollander companion, took too much, and when the commando moved away at dusk, he was left asleep unnoticed.
Weeks later we learned that he had been discovered in a room, and as, like most of us, he was dressed in a British uniform. the poor fellow was executed, in all probability before his fuddled brain had time to take in what was happening.
Neither then, nor for weeks later, did we know that the death penalty attached to the wearing of khaki, and although after a while rumours reached us through the country people that our men were being executed, these stories left us doubting and perplexed. We could not believe that the English were resorting to the shooting of prisoners, and it was only after many had been executed that we learned of Kitchener's proclamation ordering the death of all Boers caught in khaki. As far as I know no steps were ever taken by the military to acquaint us with its contents.
... As I have said before, we had not heard of Lord Kitchener's proclamation against the wearing of British uniforms, and I went about wearing Lord Vivian's khaki tunic, with regimental badge and buttons, and the 17th Lancers skull and cross-bones in my hat, not a little proud of my well-earned trophies, and never dreaming that I was under sentence of death.
... In the course of our return journey Ben Coetzee and Edgar Duncker branched away on their own, and soon after, hearing several shots, we galloped in their direction. When we came up we found them sitting their horses in considerable agitation, while on the ground lay an officer and a trooper, both dead. It appeared that shortly after leaving us, as they rounded a piece of thorn bush, they ran into a small English patrol. So unexpected was the encounter that they were alongside before they could think, and Duncker, on the spur of the moment, called out, 'Don't fire, we are the 17th Lancers' The officer in charge, a Captain Watson, said, 'I don't believe you; all Smuts's men are dressed in khaki. Put up your Hands.' Then Coetzee and Duncker, both of whom carried Webley revolvers fired simultaneously, killing Captain Watson and one of his men, and seriously wounding another, who, however, got away with the rest.
This was a very unlucky incident, for the wearing of British uniforms had without doubt been the proximate cause of the death of these two men, and although we knew nothing as yet of Lord Kitchener's proclamation, General Smuts pulled a long face when he was told of the business. Indeed, long afterwards, when we met Lord Kitchener himself, he cited this very case in defence of the execution of so many of our men for wearing khaki.
Well the harm was done, and I can only say that none of us ever wore captured uniforms with the deliberate intention of decoying the enemy, but only out of sheer necessity.
This quote might be interesting. However, the concept of "unlawful combatant" does not appear anywhere in it. If the point is just to say that war involve treachery, well, better quote Herodotus's history than anything else. Tazmaniacs 15:16, 12 January 2006 (UTC)

"At least 100 years"... Indeed this view is uphold by a reference. But this is too general (and therefore confusing) a sentence. It should be quoted and directly linked (thru endnotes) to the reference in question.
It does not need quoting more than once. The quote is referenced. I see little point in referencing the claim more than once. --Philip Baird Shearer 22:04, 10 January 2006 (UTC)

Beside, the difference between subsection "International criticism of unlawful combatant status" and others "Critics" is unclear at best. They should be merged, or rewriten.

The difference is important. One is a criticism of the general concept the other is a criticism of the USA's implementation of it. --Philip Baird Shearer 22:04, 10 January 2006 (UTC)
No differences. Critics of the general concept critics the USA's implementation of it, and vice-versa. It is not a problem of anti-Americanism here, simply a concern for civil rights, which are de facto denied by this new juridical status of so-called "Enemy combatants". Amnesty International and others NGO will critic just as much any other countries using this status. Reading the text in those two sub-sections clearly shows that they overlap. Tazmaniacs 15:22, 12 January 2006 (UTC)

enemy combatant

Enemy combatant as used by the US military must be a short hand for "Illegal enemy combatant" because in any war there are combatants, friendly and enemy. For example in the Falklands War British Royal Marines who were captured at the start of the war were enemy combatants to the Argentinian and were treated as POWs when they surrendered. Later in the war when the British captured enemy combatants the Argentinian soldiers were treated as POWs. So including the term in "enemy combatant" in the title is confusing as not all enemy combatants are illegal enemy combatants. --Philip Baird Shearer 00:08, 11 January 2006 (UTC)

Your deductions certainly are interesting. However, Bush administration doesn't talk about "illegal enemy combatants", but COMMONLY use the term "enemy combatant". We will therefore keep this term here in Wikipedia. Tazmaniacs 15:10, 12 January 2006 (UTC)

Then stick the term in the US section with an explanation, of what it is, and it is not an unlawful combatant, but a person "who is a member of al Qaeda or knowingly cooperated with members of al Qaeda". (see "Detention of Enemy Combatants Act") Also the articles on the "Combatant Status Review Board[s]":
2. An enemy combatant has been defined as "an individual who was part of or supporting the Talibanor al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
--Philip Baird Shearer 01:37, 15 January 2006 (UTC)

Bush administration

Since it was the Bush administration that introduced the term into current legal and popular view it would be wrong not to mention this.--Nomen Nescio 00:44, 11 January 2006 (UTC)

Please explain why the reference to the Bush administrations keeps being deleted from the introduction. Could you at least let me know which other country or administration used this term in recent history? Otherwise I feel the deletion is unwarranted and I will insert it once more.--Nomen Nescio 02:18, 11 January 2006 (UTC)
Since no source has been advanced, showing other countries using the term "unlawful combatant," I am once more inserting the reference to the Bush administration in the introduction. Please do not remove it without discussing it first and showing proof it is incorrect. In other words: what other government (US or other) used the phrase prior to 9-11 and prior to the Bush administration?--Nomen Nescio 13:13, 12 January 2006 (UTC)

Sources are given in the article for Israel and Liberia using the term in modern times, there are bound to be other governments as well. The reason for deleting them is because the US administration is not the only organisation to use the term. See below my comments on a rant.

Enemy combatant is not an acceptable alternative title as enemy combatants can be legal and illegal and unlawful combatant can in theory also be a friendly combatant tried for a similar breach in the laws of war.

Your new additions to "ex parte Quirin" is addressed in detail in the case lower down the page so it does not need repeating yet again. Further the addition about "ex parte Quirin" is a straw man as the whole point of holding the men at camp X-ray was the Johnson v. Eisentrager case. The comment by the Bar Council (if needed) should appear only after the other cases are presented lower down the article.

Nescio in general I do not like you new wording because it is turning this article from a balanced piece into an article which reads like a rant against the Bush administration. I am having real problems with my IPS's broadband service at the moment so I am not on line as much as I would like to be, so my responses to your points are more tardy than I would like them to be. --Philip Baird Shearer 17:06, 13 January 2006 (UTC)

You disagree the Bush administration has introduced the use of the word in current times, yet I know of no other country that did. Evidently it has been advanced by the Bush administration based on legal literature, but to say it was well known and used is not supported by facts. Furthermore, the reference to the Quirin case would suggest the concept at this moment is US oriented. I looked at the example of mercenary (which seems somewhat out of date), but to say a mercenary is an enemy combatant is not entirely correct. In addition, they show at least that the use of it is not current legal practise. Of course, the entire debate is: what makes one an unlawful combatant? It is clear that those the Bush administration deems unlawful combatant would previously have been called criminal. Hence, the by the Bush administration introduced erroneous interpretation, suggesting these prisoners do not have the right to due legal process and can be held incommunicado indefinitely, is a radical new way of thinking. As is the claim Bush as President is above the law from which it is taken. Which is explained by the sources I supplied.
The Quirin example warrants critique in the same paragraph. It would be illogical to suggest it is the basis of current policy without explaining the legal difficulties surrounding that view, let alone the fact the American Bar Association(!!!) disputes that claim. The sources emphasise the need for nuance.
This is not meant to ridicule the Bush administration, but we would be wrong to leave out the enormous influence it has on the current debate. Not mentioning the Bush administration would leave people to mistakenly believe the term was common usage in legal discourse previous to 9-11-2001. That is incorrect as you know.
I'll revert. Sincerely --Nomen Nescio 17:49, 13 January 2006 (UTC)

I do not disagree that the term has been popularised by the shenanigans of the Bush administration, but the introduction, before you changed it did not say that it was made popular by anyone else.

The "ex parte Quirin" is not in the general section it is in the US domestic section.

What are mercenaries if not unlawful combatants? If one is found guilty of being a mercenary then one is a unlawful combatant. The advantage of using that mercenary example is that it carries far less emotional baggage than post 2000 examples. The are a lot of other examples from the Second World War which could be used, but again they tend to carry political baggage (for example one could use the Otto Skorzeny trial).

The "ex parte Quirin" is mentioned in the US section not in the general section. The criticism of the "ex parte Quirin" case needs to be placed into context of the later court cases not in the first section where it is being used in an historical context. If you put criticism there I think you break whole thread of the argument in that section, which leads to less clarity not more.

The legal concept was in as common as usage as the crime. Bush has used it to try to get around what are perceived to be restrictions placed on the US executive by the US constitution, but that does not make the term American, and as I said before I think that the alterations you have made turns the article into a rant. --Philip Baird Shearer 01:07, 15 January 2006 (UTC)

The Bush administration began using CSRT because of "Hamdan v. Rumsfeld" (as is already noted) not because of international legal challenges. If the CSRT are not of an acceptable level for the US judiciary, then there should be court cases which says so. --Philip Baird Shearer 01:55, 15 January 2006 (UTC)

In our previous, and still not concluded, debate you have seen I do not make frivolous claims. There are numerous sources for my edits which make me feel they are not POV or even incorrect. mYou may object to my style, but that is entirely different from content.
As to the suggestion the Bush administration introduced the term in the current legal debate, as a means of denying captives basic rights under the Geneva Convention: please show who used it to prove it was common usage. Contrary to your position it was not, and I supplied sufficient sources to substantiate my view. Surely you can't deny Bush uses it more often than it has been in the past. On top of that, the mere fact legal analysts initially said the term was invented by the Bush administration proves my point. Apparently they were not aware it was common usage.[10][11][12][13][14][15][16][17][18][19][20][21][22][23][24][25][26]
Clearly you miss the point on what makes an "unlawful combatant." Again, should you read the sources I supplied you will find an extensive discussion on the subject explaining it is not as simple as you state. Furhtermore, as you are well aware the US is using mercenaries in Iraq. They call them differently but they are.[27] By your definition they too are "unlawful combatants." Shortly, there is debate among legal experts about what has become known as "unlawful combatant" would previously be seen as criminal activity, if any.[28][29][30][31][32][[33]] You know many criminals today are called terrorists, and by that token being a terrorist means you are ipso facto an "unlawful combatant."[34][35][36] [37]This kind of logic is absolute nonsense and warrants mentioning.
I think any comment on the validity of the use of Quirin should be put in that paragraph. Otherwise people will miss the point if you have a bunch of different comments put together in the "critics" section. More logical and simpler would be to introduce the theory of why Quirin is used and directly explain why others think it is not applicable.[38][39][40]
As to the CSRT, I never said in the article they were the result of international challenges. It merely states the Bush administration had to address their obligation under the Geneva Convention to hold "competent tribunals." In addition, we should mention CSRT in the article as it is an important part of the legal issues involved. We have discussed this before and you are well aware of the fact these tribunals do not meet the standards of "competent tribunal" under international law.[41][42] Regarding the US courts addressing this issue: you must have noticed a recently accepted bill denying prisoners habeas corpus.[43] It effectively renders any appeal impossible since the Bush administration has already asked the courts to stop all current proceedings.[44][45]
Since many references disappeared by your reverting I once again restore my version and the references you deleted. It would be easier to first discuss the issue, and show my well sourced comments are incorrect, before changing the article. Sincerely--Nomen Nescio 15:26, 15 January 2006 (UTC)

UK do not use "unlawful combatant" new concept

  • Keeping only the Israel reference, which has source. The UK doesn't use this concept, as you can read in this 2002 Parliament report. I'm also removing the Boer War reference, where the term doesn't appears either (or i missed it). Tazmaniacs 02:51, 17 January 2006 (UTC)

What were the Boers wearing pieces of British uniforms shot for if they were not unlawful combatants? They were fighting in exactly the same way as all the other Boer commados so what was their crime? HMG may not use the designation "unlawful combatant", but what how should one describe a combatants in an armed conflict against the British who entered combat without carrying arms openly during deployment? See protocol I Aricle 44 and the British Declaration made upon signature - 12/12/1977 --Philip Baird Shearer 22:39, 18 January 2006 (UTC)

The point is, were they officially designated "unlawful combatant?" We are not to speculate or interpret what might be, just report.--Nomen Nescio 01:06, 19 January 2006 (UTC)

We can agree that they were combatants and that they were shot for wearing parts of a British Army Uniform. This makes them not lawful combatants or unlawful combatants. What other term would you use for them? --Philip Baird Shearer 01:36, 18 April 2006 (UTC)


Please discuss your POV edits. Altering quotations from legal scholars into your POV does not constitute a good faith edit. You help is welcome but you might first want to read WP:POINT, WP:NPOV, WP:3RR, WP:Civility.Holland Nomen Nescio 16:38, 14 February 2006 (UTC)

This page lacks balance and serious factual analysis

Nomen Nescio: This page is a propaganda essay in favor of giving all murderers who have the backing of a state at least Prisoner of War status, if not just releasing them to kill again, regardless of the crimes they commit. My edits were to one-sided POV portions.

It has a serious error in the beginning: 'The treatment of "unlawful combatants" by the U.S. falls considerably short of the standards required under international humanitarian law.' Those who do not follow the Geneva Conventions are not provided any significant protections by the Geneva Conventions, even if they are fighting those who are signatories to the Geneva Conventions. The concept of an unlawful combatant is NOT a new one-> it is a grouping of different kinds of combatants who aren't legal, such as spies, saboteurs, war criminals, terrorists, and franc-tireurs. Their primary right is to a military tribunal before execution (they cannot be executed immediately upon capture), and in virtually all signatories to international laws, freedom from torture (as defined in the respective laws, not discomfort or lack of respect). In fact, for centuries, a quick military tribunal followed by an execution was the standard way unlawful combatants were dealt with by western militaries.

I do not respect "experts" who can't read article 2 of Geneva Conventions III & IV, and see that they are limited in application to those who respect the Conventions. I'll take the original legal documents over "expert opinion" any day.

And this part is also pure POV-pushing: For his part in laying the legal groundwork for prisoners to be detained without due legal process and allowing torture Marjorie Cohn, a contributing editor to Truthout, professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists has suggested an indictment of Alberto Gonzales for war crimes under Title 18 U.S.C. section 2441, the War Crimes Act.

In fact, this Marjorie Cohn is trying to punish those who speak the truth; writing a legal opinion is not a crime in the US. I also don't see its relevance to the topic at hand.

You are making a harsh and incorrect observation. Of course you already know the reasons why because I have already explained this in a previous discussion. Please consider the following.
  • 1 Contrary to your assertion, parroting the Bush adminstration's talking points, the concept and term do not exist in US and international law, as is explained in the article:
The term "unlawful combatant" has been used for the past century in legal literature, military manuals and case law. However—unlike the terms "combatant", "prisoner of war", and "civilian"—the term "unlawful combatant", or similar, is not mentioned in either the Hague or the Geneva Conventions. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.
Also, it has been pointed out that, until now, the term "[illegal] enemy combatant" as used by the US administration, "appeared nowhere in U.S. criminal law, international law, or the law of war."Nomen Nescio 09:18, 15 February 2006 (UTC)
rebuttal An unlawful combatant is a combatant who isn't a lawful combatant. Basically, they can be disqualified by either not being in a war between two signatories that abide by the Geneva Convention (article 2 of the third Geneva Convention) or by not qualifying for POW protections in article 4 of the third Geneva Convention as a lawful combatant. Or in the case of Al-Queda/foreign Taliban volunteers, not qualifying for either. As I mentioned before, unlawful combatant is merely using the same term for a bunch of different kinds of combatants who do not follow the Geneva Conventions/laws of war. These prior terms have been used for centuries in legal cases.—Preceding unsigned comment added by PeaceThroughStrength (talkcontribs)
Repeating the definition advanced by the Bush administration does not make it an existing law. Please provide the exact location in US and international law where this definition is made. In the mean time you might want to read the following: [46][47][48][49][50][51][52][53][54][55][56][57][58][59][60][61][62][63]. Having read these articles nobody, outside the Bush administration, seriously maintains the concept is well known and accepted through history.--Holland Nomen Nescio 11:28, 16 February 2006 (UTC)
  • 2 Many detainees have been apprehended outside the battlefield and they were not engaged in combat. By definition that makes them civilians, and stating they are combatants, unlawful or otherwise, is incorrect and a violation of international law. And as we now know the majority held in Guantanamo Bay is not related to terrorism at all, proving the illegal detention of these "combatants."Nomen Nescio 09:18, 15 February 2006 (UTC)
Spies/Saboteurs are not legal combatants Though they are often not in a warzone, spies and saboteurs are not civilians. You are showing your bias in saying you "know" the majority of combatants held at Guatanamo are not terrorists; there is no evidence of such, and plenty to the contrary. Most of the original detainees were captured fighting in Afghanistan without fixed distinctive signs recognizable at a distance and were not "conducting their operations in accordance with the laws and customs of war". Many of them were foreign volunteers fighting for Al Queda.—Preceding unsigned comment added by PeaceThroughStrength (talkcontribs)
You fail to acknowledge there are detainees that were at no time involved in combat, nor present at the battlefield. More to the point, these prisoners are not related to terrorism at all[64][65][66]. Holding them as combatants, of whatever sort you like, is unwarranted and illegal under US and international law. But there is more [67][68][69], this constitutes a war crime.--Holland Nomen Nescio 11:28, 16 February 2006 (UTC)
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.
By first determining they are unlawful combatants and then looking if that was correct, the Bush administration is violating this article.Nomen Nescio 09:18, 15 February 2006 (UTC)
There was no doubt They were caught fighting as unlawful combatants[citation needed], without uniforms or adherance to the laws of war. The tribunals were held because others expressed doubt.—Preceding unsigned comment added by PeaceThroughStrength (talkcontribs)
You must have missed the news the past five years. Outside the Bush administration nobody thinks there is no doubt. All major Human Rights organisations oppose the view advocated by Bush and his supporters.[70][71][72][73] To claim there is no doubt is a misrepresentation of historical fact. Once again, read the multitude of papers by these organisations. Besides, you must have heard of Padilla, and he certainly was not captured on the battlefield. Furthermore, it is not up to the US admistration to determine whether there is doubt. If that were the case I bet Saddam Hussein would say that all his prisoners were criminals and nobody was being tortured.--Holland Nomen Nescio 11:28, 16 February 2006 (UTC)
  • 4 The main assertion surrounding the term is that these prisoners fall outside any law, and therefore can not be protected by law. This is incorrect, any civilian, soldier, terrorist, spy, whatever, is subject to the Geneva Conventions and to the universal declaration of Human Rights. They are absolute, and there are no circumstances in which they do not apply. Saying otherwise, as you are doing, does not make it any less true.Nomen Nescio 09:18, 15 February 2006 (UTC)
FALSE The Geneva Conventions have clear limitations on who they cover (see articles 2 and 4 in both GCIV and GCIII). Saying it applies globally doesn't make that true. The universal declaration of human rights DOES apply, but basically the relevant part bans "torture or to cruel, inhuman or degrading treatment or punishment". Fair enough.—Preceding unsigned comment added by PeaceThroughStrength (talkcontribs)
You agree the US is violating the Convention against torture, thank you. Furthermore, the US cannot simply dismiss the GC just because they want to. Read the references.[74][75][76]--Holland Nomen Nescio 11:28, 16 February 2006 (UTC)
  • 5 On what basis are you capable of claiming to know more of the law than the numerous legal experts that state it is a violation of US and international law? Or is your ad hominem attack against them your principal argument?Nomen Nescio 09:18, 15 February 2006 (UTC)
Read the Geneva conventions. They have limitations. It's very clear. Lots of people claim to be experts that are really just pushing a point of view. You can't just rely on experts for everything you believe-> go to root facts. I note that many of your citations are from pacifist/appeasement and anti-death-penalty groups. They are biased sources, and get more funding the more they demonize militaries. Also, strictly speaking, the military JAG is far more knowledgable about the relevant law than most of the experts you cite.—Preceding unsigned comment added by PeaceThroughStrength (talkcontribs)
Of course, the Bush administration is the sole provider of the truth. Anybody else (Human Rights organisations, professors, other countries, et cetera) must ipso facto be biased. Thank you for sharing that enlightning information. How silly of me to think that those reputable government officials might also be biased. I stand corrected, naturally these honest man and women have nothing to hide and nothing to gain from misstating the facts. My mistake, after misrepresenting the facts surrounding the invasion of Iraq, after stonewalling an indepth investigation into the nature of these "mistakes," after kidnapping people worldwide, after insisting on torture as acceptable interogation method, after refusing an indepth investigation into the torture "incidents." after violating FISA, after editing scientific reports, after manipulating newsreports, after ...... Why did I think this administration had something to hide?Holland Nomen Nescio 11:28, 16 February 2006 (UTC)
  • 6 Why is any interpretation which is uncomfortable to the current US administration POV pushing? Does that mean the only truth is what the Bush administration says? That would be odd, since I have always understood there was no such thing as THE truth.Nomen Nescio 09:18, 15 February 2006 (UTC)
Truth isn't fungible. Just because we may not know the whole truth does not stop the truth from being exact itself. My main objection is to statements that are blatantly biased and factually incorrect. As to the citation you use in claiming they violate international law, it doesn't back up your point; it claims the US is in violation of law it isn't a signatory to (and thus the law isn't relevant) in making its claim.—Preceding unsigned comment added by PeaceThroughStrength (talkcontribs)
As far as I know the US has signed the GC and the CAT, as a result the US War Crimes Act was adopted in 1996. Since all these laws are violated in this situation and the US is bound by them legal scholars make the observations they do.[77][78][79] On what basis do you disagree, besides the ridiculous observation that since they are not paid by the Bush administration their analysis is flawed. You of course have a law degree? Any professor knows less than you?Holland Nomen Nescio 11:28, 16 February 2006 (UTC)
  • 7 As to the memos written by Yoo et al, there are more legal scholars noting they explicitly suggest ways to circumvent the US War Crimes Act of 1996. You probably are aware that by aiding in committing war crimes, which suggesting loopholes is, those who do that are themselves guilty of war crimes. This of course is very relevant as you are well aware.Nomen Nescio 09:18, 15 February 2006 (UTC)
Articles 2&4 of the GCIII and GCIV are not "loopholes". Legal advice on warfare is rarely pretty, but it isn't a war crime. The only reason I see for including this section of the article is an ad-hominem attack and inciting hatred. I hope that isn't your goal. Legal advice in this case mentioned what people COULD do, not what they did do. The implication made in that section is underhanded.—Preceding unsigned comment added by PeaceThroughStrength (talkcontribs)
You are correct, the loophole is in refuting the GC: Gonzales wrote in his memo[80] that refuting the GC "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act." This would be a grave violation of US and international law[81][82][83][84][85][86]Holland Nomen Nescio 11:28, 16 February 2006 (UTC)
  • 8 To those following the news, it is becoming increasingly clear the Bush administration is violating law after law (Geneva Conventions, Convention against torture, US War Crimes act, FISA, et cetera). We can close our eyes and pretend nothing is happening, but it would be wiser to face the truth.Nomen Nescio 09:18, 15 February 2006 (UTC)
FISA is relevant to domestic wiretapping. The issue brought up is wiretapping of international communications. There is a very significant difference. You claim the US is violating the Geneva Conventions, but ignore articles 2&4 of said conventions. The Convention against Torture bans torture-> and the US prosecutes those who torture prisoners. The US War Crimes Act [[87]] is pretty straightforward, and not in danger of being violated on a major scale (individuals will be prosecuted).—Preceding unsigned comment added by PeaceThroughStrength (talkcontribs)
As can be seen in the previous points, these laws are very much violated.Nomen Nescio 11:28, 16 February 2006 (UTC)
If we not wish to become Dhimmi, it would be best to pay attention to what is happening in the world.—Preceding unsigned comment added by PeaceThroughStrength (talkcontribs)
As to the threat of Islam, at this point Islam is under threat from the West (US). Once again, my newspaper mentioned an invasion of Iraq, Afghanistan, supporting dictatorial regimes (Saudi Arabia). Please stop this fearmongering.Holland Nomen Nescio 11:28, 16 February 2006 (UTC)
  • 9 Have you read all the references at the bottom of the page? Please do, it would help this discussion. Thank you.Holland Nomen Nescio 09:18, 15 February 2006 (UTC)
I have already read some; I can give a point-by-point rebuttal of your references (or statements as to why they don't state your point) if you so desire. If you'll actually listen.—Preceding unsigned comment added by PeaceThroughStrength (talkcontribs)
Please, first read ALL the references before continuing this discussion. I am citing them (highly efficient) in these points to illustrate what you could have known had you read the sources.--Holland Nomen Nescio 11:28, 16 February 2006 (UTC)

Defend your edits!

It is clear that there is a single person running this page as a personal political attack page. This needs to stop. He overrides the edits of others on a regular basis. He makes ad-hominem attacks against others; assumes that the US violates the Universal Declaration of Human Rights (without reliable backing), and considers articles 2&4 of the Geneva conventions III and IV "loopholes", and hence, refuses to discuss them in detail in "his" page, even though they are central to the discussion, and were written for a good reason which is applicable. He cites his references from one side. He claims more in the citation than the citation actually says. He does not note the long history of military tribunals for and executions of those fighting in the war who do not meet the definition of lawful combatants, such as [88] (execution of Israelis by the British as unlawful combatants), and [89], and going back into the 18th century and beyond [90]. On top of that, he shows his bias in: Adding a bizarre paragraph stating that those who wrote legal opinions based upon articles 2&4 of the Geneva conventions have committed war crimes, and goes on to imply that I should be tried for war crimes in the discussion, for noting that the Geneva Conventions have limiting clauses stating where they apply. Not a big fan of free speech, evidently. Assuming that the US stance on the Geneva Conventions has no basis in law, where the US difference from european countries is primarily due to not being a signatory to the additional protocol Protocol I. Some of his citations try to say it applies anyway, even though the US is not a signatory. The US didn't sign it for this reason, among others that would limit its ability to effectively fight wars. As this person has shown his extreme bias and resistance to a neutral point of view, I will offer to protect the edits of others from his depredations. If any of you will listen, I will also offer a case-by-case refutation of his sources.—Preceding unsigned comment added by PeaceThroughStrength (talkcontribs)

Of course I will listen, you might even start by answering the questions in the previous paragraph, and stop misrepresenting my comments. Don't forget Wikipedia:Guidelines for controversial articles, dispute resolution, WP:Civility, WP:POINT, WP:TIGERS, WP:NPA. Do explain why Human Rights Watch, Amnesty International, the UN, the Council of Europe, the American Bar Association, several law professors are all wrong, but you are capable of making the only correct interpretation. Holland Nomen Nescio 19:17, 16 February 2006 (UTC)

Example number 1 of a bad citation: If there is any doubt about whether an alleged combatant is a "lawful combatant" then they must be held as a Prisoner of War until their status has been determined by "a competent tribunal". If that tribunal rules that the combatant is an "unlawful combatant" then their status changes to that of a civilian which may give them some rights under Fourth Geneva Convention.[7] Where the citation says: International Committee of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: 1958), p. 51 (emphasis in original). The International Criminal Tribunal for the Former Yugoslavia, charged with prosecuting war crimes and crimes against humanity committed during the recent conflicts in the Balkans, has explicitly affirmed this principle in a 1998 judgment, stating that "there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied." Celebici Judgment, para. 271 (1998).

Unlawful combatants aren't civilians. That's preposterous, and the Geneva Conventions don't back it. I've noticed a tendency to leave limiting clauses like this out of summaries; this is particularly disturbing coming from a liberal anti-war group such as Human Rights Watch removing a chunk of a sentence (and possible other limiting clauses) from an ICRC commentary to begin with. As I've said before, where the pertinent legal documents are relatively short and simple, such as the Geneva Conventions, adding legal interpretations mostly just confuses the issue. Particularly if citations of said experts are questionable. The citations in here are pretty sketchy, and two so far I've looked at are pushed further in summary than they can back. Particularly when the limiting clause in question excludes foreign Al Queda fighters in Afghanistan from being protected by the fourth convention, for example. I work and hike regularly, so going through all the citations may take a month or so, but it looks like a good idea to do some weeding. I think anything with a ... in it should be deleted, unless the original source can be found. An example of how a ... can completely change meaning: original: "I've inspected the problem; the equipment is in need of repair, but isn't dangerous" "I've inspected the problem; the equipment is ... dangerous"

Hatred of any person, group, or administration isn't healthy, regardless of how bad a person may think they are. No good comes of hatred. People can easily be controlled by it.

If you want mediation or a poll, I'm game. The article, as is, is absurd.—Preceding unsigned comment added by (talkcontribs) which is PeaceThroughStrength who forgot to sign in.

You keep forgetting to sign. It is easy just use four tildes. As to mediation, as long as we can discuss the matter in a civil manner I don't see the need. Let's start with the definition you offered. In what Textbook of law can I find it?Holland Nomen Nescio 09:04, 17 February 2006 (UTC)

Camp ex-ray

The foreign detainees, are held Camp X-Ray at Guantanamo Bay on Cuba.

As Camp X-ray closed a couple of years ago, this cannot be correct. I hope whoever put this in didn't put in too many other inaccuracies. Andjam 02:33, 24 February 2006 (UTC)

There are plenty. Just check a citation and you have a good chance to find it doesn't back the case, or at least not as far as it's pushed. How hard is it to understand that an unlawful combatant is a combatant who isn't a lawful combatant? Inversion is a relatively simple concept; I don't need a legal dictionary to understand it. Now, an example of another inaccuracy: The treatment of "unlawful combatants" by the U.S. falls considerably short of the standards required under international humanitarian law. There are strong indications the Bush Administration’s policy of classification and detention of persons designated as "unlawful enemy combatants" is based on a presumption that the Geneva Conventions and Constitutional safeguards are an obstacle in the pursuit of the ‘war on terror’.[5] Actually, reference 5 uses: [Protocol 1], the ICC, and the court for Yugoslavia to conclude that the US is violating those-> laws the US isn't signatory to, and the majority of combatants do not follow. In particular, unlawful combatants have a right to humane treatment and a right to trial by a military tribunal. If convicted, they can be executed, as has happened throughout history. As to the conditions being inhumane, I'd like citations as to actual tolerated conditions (IE, ones no one is prosecuted for creating) to back that up, that aren't based on an absurd idea of what a prison is supposed to be. They're comparable to conventional prisons. --PeaceThroughStrength 16:59, 24 February 2006 (UTC)

PeaceThroughStrength keeps suggesting inaccuracy when he fails to address the arguments supporting these edits. Yet again I will provide a link to a story suggesting his claim that none of these "enemy combatants" are civilians is premature, shows lack of knowledge and can only be part of his POV.
More than half the so-called "enemy combatants" at Guantanamo were determined to have committed no hostile act against U.S. or coalition forces. This was so even though the definition of a "hostile act" was loose enough to include fleeing a camp that had been bombed, or being picked up in an area of Pakistan where others believed to be fighters had fled.
Evidence the government used as proof that someone was an "enemy combatant" included associating with un-named individuals or groups purported to have terrorist ties -- or possessing a rifle, using a guesthouse, possessing a Casio watch or wearing olive-drab clothing.[91]
How many articles do we need to show before PeaceThroughStrength can accept that at least some of the people held as "enemy combatant" are most likely innocent, or do not fall into the catagory "combatant" as defined in the GC?
Regarding humane treatment:
Nearly 100 prisoners have died in US custody in Iraq and Afghanistan since August 2002, the Human Rights First organisation said ahead of the publication of their report. At least 98 deaths occurred, with at least 34 of them suspected or confirmed homicides -- deliberate or reckless killing -- the group of US lawyers told BBC television Tuesday.[92]
Could the honourable editor try and read some more on the subject before adding more erroneous statements?[93][94]Holland Nomen Nescio 13:35, 27 February 2006 (UTC)
Do you regard truthout and common dreams a reliable source? Andjam 23:26, 28 February 2006 (UTC)
Interesting observation, or should I say red herring? 1 You fail to mention the numerous other sources, 2 Truthout mostly reprints storys from regular newspapers (i.e. the NYT[95]) so I fail to see why this is a problem.Holland Nomen Nescio 23:47, 28 February 2006 (UTC)
Please refrain from personal attacks. By the way, you removed the accuracy tag after you removed only one of the mentions of camp X-ray. Andjam 00:33, 1 March 2006 (UTC)
What personal attack? Thank you for changing the remaining X-Rays.Holland Nomen Nescio 00:36, 1 March 2006 (UTC)
Talking about an "interesting" observation, and the bit about a red herring. Andjam 00:47, 1 March 2006 (UTC)
Pointing out your selective use of sources and erroneous assertion of bias (which in my mind is an incorrect asumption and as such is a distraction) hardly constitutes a personal attack. However, if it offended you I regret that. Holland Nomen Nescio 01:00, 1 March 2006 (UTC)

The article is clearly biased. The "Critics and proponents" section contains only criticism. Etc.—Preceding unsigned comment added by (talkcontribs)

Merge with Enemy combatant

I propose this article be merged with Enemy combatant as the intro clearly establishes that the two are one in the same and there is no distinction given between the terms. Further, just because the term has been used in the War on Terror in such a broad way, does not take away from the fact that the United States military has been using "enemy combatant" for years. --Assawyer 01:09, 18 April 2006 (UTC)

  • Oppose merger Without regard to what this article's introduction might say, the two terms have different, distinct meanings. Yes, the Bush administration has applied the both terms to the same individuals. But they defined the term differently. -- Geo Swan 01:22, 18 April 2006 (UTC)
    • Any Combatant Status Review Tribunal contains this paragraph defining "enemy combatant":
      An enemy combatant has been defined as “an individaul who was part of or supporting the Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."...
    • This definition, clearly more narrow than illegal combatant, was from the Summary of Evidence from page 17 of Uthman Abdul Rahim Mohammed Uthman's CSRT -- found here (.pdf). -- Geo Swan 02:02, 18 April 2006 (UTC)
  • Oppose merger I wrote the article Enemy combatant it has two meanings only one of which is unlawful combatant. In most of the English speaking world outside US administration press confrences it means an lawful enemy combatant, not an illegal enemy combatant. --Philip Baird Shearer 01:26, 18 April 2006 (UTC)
  • Futher comment Geo Swan, I am interested in the reference to the Bush administration using the terms with different definitions. In HR 1076 - Detention of Enemy Combatants Act, which is still in committee, defines the term "enemy combatant":
(8) The term 'enemy combatant' has historically referred to all of the citizens of a state with which the Nation is at war, and who are members of the armed force of that enemy state. Enemy combatants in the present conflict, however, come from many nations, wear no uniforms, and use unconventional weapons. Enemy combatants in the war on terrorism are not defined by simple, readily apparent criteria, such as citizenship or military uniform. And the power to name a citizen as an 'enemy combatant' is therefore extraordinarily broad.
Also, the article makes no definition as to what an "unlawful combatant" is. Even in ex parte Quirin there is no provided definition for the term. Could someone please clarify or explain the actual difference between what constitutes an "unlawful" as opposed to an "enemy" combatant? --Assawyer 04:10, 18 April 2006 (UTC)
  • Oppose merger. The two are not the same thing, only they are being used interchangably in the "popular press" and among some politicians. This also answers Assawyer's question above. -- Cecropia 04:55, 18 April 2006 (UTC)


An unlawful combatant (more properly unprivileged combatant) is someone who willingly acts as a combatant without meeting the qualifications for a "privileged combatant" as defined by the Hague Convention and detailed by the Hague and Geneva Conventions. Simplified, this means that a combatant has not properly identified himself as a belligerant and/or does not follow the dictates of the Laws of War that would give him "privileged" status (for example by using civilians as hostages, attacking under a flag of truce, etc.) An enemy combatant is more a "term of art" in the current conflict, which the U.S. uses as a description to distinguish people who are apparently civilians, or may even be U.S. citizens, who are fighting on the same side as an enemy, or fighting or sabotaging by stealth. A better term in international law would be "spies" or "saboteurs." The term enemy combatant has been used secondarily to describe people who would better be called "unlawful combatants." Bottom Line: An unlawful combatant is a situation clearly defined in international law. Enemy combatant is not defined, and may not mean the same thing in different circumstances. -- Cecropia 04:55, 18 April 2006 (UTC)
"Bottom Line: An unlawful combatant is a situation clearly defined in international law." In what law can I find the definition of unlawful combatant? It may be used, but does not exist in international treaties AFAIK. Holland Nomen Nescio 13:55, 18 April 2006 (UTC)
I have found no law in which you will find the definition of unlawful combatant. Please provdie the citation if you know of one, because the treaty merely defines what a lawful combatant is. --Assawyer 00:50, 19 April 2006 (UTC)
My recollection, from earlier discussions here, was that it was lawful combatant that was the international term -- being used in the Geneva Conventions, for a combatant who would qualify for POW status. -- Geo Swan 14:06, 18 April 2006 (UTC)
The term is privileged combatant' (if there is a privileged combatant, it stands to reason that there is an unprivileged combatant. The "combatant's privilege" is to be exempted from civil law so long as he adheres to the laws of war. Otherwise, every soldier who kills an enemy soldier could be tried for murder. This is the simplest form, of course. -- Cecropia 14:27, 18 April 2006 (UTC)
Still, the GC does not define unlawful combatant. The current use of it is based upon inference, not definition!Holland Nomen Nescio 16:36, 18 April 2006 (UTC)
What about child soldiers and mercenaries? In many countries to employ either in combat is a war crime, (because it breaches international conventions to which they are signatories), therefore they must be unlawful combatants.
  • Charles Taylor is facing war crime charges for using child soldiers at the UN Special Court for Sierra Leone (see Count 11: Use of child soldiers)[96]
  • In the case of mercenaries, at the Luanda Trial not only were some of them guilty murder because they were not lawful combatants, but "American Daniel Gearhart was sentenced to death for advertising himself as a mercenary in an American newspaper"[97], which means that even if he had not committed any other crime he was found to be an unlawful combatant by virtue of being a mercenary.
--Philip Baird Shearer 20:30, 18 April 2006 (UTC)
All of those people would be enemy combatants, as they are taking up arms, or are belligerents, against a state. Your example is not dispositive of the difference between enemy and unlawful combatants. --Assawyer 00:50, 19 April 2006 (UTC)
  • Philip's point is interesting. So the 20,000 mercenaries who work for Blackwater, Titan, CICA are unlawful combatants? And the USA is committing a War Crime by employing them? Mercenaries don't only serve private corporations. But the Army Corp of Engineers security details are not GIs. Their security details was outsourced to mercenaries. -- Geo Swan 01:45, 19 April 2006 (UTC)
They are probably not mercenaries, please see Mercenary#Mercenaries and the laws of war for details of what you have to do to become a real soldier of fortune or to avoid becoming a real soldier of fortune, and lets not go there in this thread. Besides the USA has not ratified Protocol I and I doubt if it has ratified the UN Mercenary Convention. Potentally different for Britain though. --Philip Baird Shearer 02:35, 19 April 2006 (UTC)
Of course it did not because all soldiers who fight against a power are enemy combatants most are usually lawful combatants some like mercenaries are unlawful combatants. What I was doing was giving examples of combatants who were unlawful combatants to answer Nomen Nescio's question. To emphasise what is an enemy combatant, if one looks at the Falklands War in 1982 which was a simple old fashioned war without any unlawful combatants under international law. The Argentinian soldiers, sailors and aircrews were Britain's enemy combatants and the British soldiers, sailors, and aircrews were Argentina's enemy combatants. --Philip Baird Shearer 01:38, 19 April 2006 (UTC)
Clearly I do not deny there is such a thing as unlawful combatant. What I say is that it is not part of international treaties. We may infer through logic and precedent what constitutes an unlawful combatant. However, I object to the suggestion the definition is defined in law.Holland Nomen Nescio 16:10, 19 April 2006 (UTC)
What about Article 47 of GC Protocol I "A mercenary shall not have the right to be a combatant or a prisoner of war." Given that the same article in Protocol I also states that to be a mercenary the person has to "in fact, take a direct part in the hostilities", that seems to me about as clear a definition of one type of unlawful combatant as one could have. Particularly when one compares it with the other definitions in GCIII for those who qualify as a prisoners of war and are therefore deemed to be lawful combatants.--Philip Baird Shearer 17:18, 19 April 2006 (UTC)

Combatants, lawful and otherwise

For a combatant to be lawful, he must be operating under the auspices of a sovereign country. If there is no law undergirding his actions, then by definition, that combatant is not lawful.

Unlawful and illegal are not the same - please don't confuse them: Unlawful means not supported by law. Illegal means transgressing a law.

By declaring a fighter to be an Unlawful enemy combatant, the USA is saying:

  1. This person is acting without the authority of any home nation (unlawful)
  2. This person is making deliberate attempts to harm us (enemy)
  3. This person is engaging in combat (combatant)

Before there was an Internet, the vernacular for the Internet did not exist. Same thing with a global asymmetrical undeclared war. There is no vernacular for this type of conflict, because this type of conflict - on such a global scale, is new.

Don't get caught up in word battles here. It's pretty clear what Bush means by this. And it's pretty clear that fighters of this type have been attacking USA. To debate the merits of the language is non-productive. Let's instead agree that it's accurate.

And according to this, the designation actually applied to GITMO prisoners is in fact "Unlawful enemy combatant".

Merecat 01:24, 19 April 2006 (UTC)

  1. Regarding your citation of Phillipe Sands's review of Moazzam Begg's Book "Enemy Combatant", Sands wrote:
    • "With a few strokes of the lawyer's pen, restrictions on the conditions of his detention and treatment fell away. Begg was not just the "enemy combatant" referred to in the title of his book: he was an "unlawful enemy combatant", which meant that he had no rights at all."
    • Even though Sands is a lawyer -- a Professor of Law, Moazzam Begg's "Summary of Evidence" in his Combatant Status Review Tribunal, uses the definition I quoted above -- contradicting Sands's interpretation.
  2. Your speculations about the how the meaning of "unlawful combatant" would be the corollary of "lawful combatant" -- I think it needs to be said this does not address the initial assertion that unlawful combatant was defined in international law.
  3. Concerning your first numbered point above -- if I understand you correctly then a patriot, who takes up a gun to resist an invader, without being a member of an Army or militia is behaving unlawfully?
    If he is not authorized by his home country to do it, then yes. Merecat 19:44, 19 April 2006 (UTC)
    GCIII 4.1.6: [prisoners of war to include] 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. --Philip Baird Shearer 08:39, 21 April 2006 (UTC)
    • Here is a thought experiment for you. Right now a lot of the US armed forces is committed in Iraq, Afghanistan, NATO and South Korea. Suppose Iraq had the number of troops critics predicted it would need, and there were practically no troops left in the CONUS. Suppose wily Cubans or tricky Venezualans launched a sneak attack on the CONUS...
      1. We have provisions for Militia and, etc. Also, the fighters held in Gitmo are generally not from Iraq or Afganistan. Merecat 19:44, 19 April 2006 (UTC)
        If prisoners are held as POWs under GCIII their nationality does not matter. It only matters if they are not POWs. That the fighters were fighting in Afghanistan against the Americans and were not Afganistanis is not relevant for their status as POWs. At the moment 10% of the British Army are not UK nationals, that would not disqualify them as POWs if captured in a war as their oath of allegiance is to Betty, not to parliament or the non existent constitution, (the word "Power" in the Geneva Convntions is used because powers are not always states). --Philip Baird Shearer 09:08, 21 April 2006 (UTC)
      2. Are you going to classify every patriot who took his right to bear arms seriously, who shoots at the invaders when they come on to his property, an unlawful combatant?
        See militia answer above. Merecat 19:44, 19 April 2006 (UTC)
      3. Suppose your patriot takes his rifle, shotgun, handgun, and the flag off his porch, and reports to his local American Legion HQ, where he meets fellow patriots, who decide to go off to attack the invaders -- Are you going to classify them as enemy combatants?
        See militia answer above. Merecat 19:44, 19 April 2006 (UTC)
      4. What if he instead reports to city hall? The local PD? The local fire department? What if the most senior PD official, or the mayor, deputizes him? Is he still an unlawful combatant?
      5. What if, in addition to the above, the mayor, Police Chief, or other local official gives each new temporary deputy a pair of American flag armbands? Will that satisfy the distinctive uniform requirement?
        See militia answer above. Merecat 19:44, 19 April 2006 (UTC)
      6. Okay, now transport your thought experiment to Afghanistan, when the Soviets invade. Are patriotic Afghans unlawful combatants if they choose to report to their equivalent of City Hall to join in resisting the invaders?
        The fighters held in Gitmo are generally not from Iraq or Afganistan. Merecat 19:44, 19 April 2006 (UTC)
      7. Now transport your thought experiment to Afghanistan when the USA invades, The same guys who resisted the Soviet invaders are likely to resist the American invaders. When they resisted the Soviet invaders they were called "Freedom fighters". No one called them "unlawful combatants" then.
        The fighters held in Gitmo are generally not from Iraq or Afganistan. Also, I am not saying that Unlawful enemy combatants is logical from every standpoint. Rather, I am only showing that it is logically consistant with the current USA policy. Merecat 19:44, 19 April 2006 (UTC)
      8. The BBC produced an excellent series of documentaries on Places That Don't Exist -- sovereign countries, in all but name -- but not recognized by other countries. By your definition, all of Taiwan's soldiers would be unlawful combatants. -- User:Geo Swan 11:15, 2006 April 19
        Your argument regarding Taiwan supports my explaination in that to China, Tawain is illegitimate so by extention, would her army be in the eyes of China. There is a difference though, Taiwan officially supports its soldiers, but the home countries of the men at jailed at Gitmo did not send those men to battle. Merecat 19:44, 19 April 2006 (UTC)
  1. I prefer if people put their comments at the end of others. I numbered my points so you could refer to the paragraphs by number.
  2. There were very few Iraqis in Guantanamo. My recollection is that there lots of Saudis, but that there were, initially, close to 200 Afghanis.
  3. I had an old Professor who was a veteran of the International Brigades, during the Spanish Civil War.
    1. That conflict was prior to the signing of the Third Geneva Convention. He went to Spain for a cause -- to fight fascism. The international volunteers who went to fight for the Republicans were generally enrolled into these International Brigades, and were integrated into Spanish Divisions. They weren't really different from Gurkhas or French Legionaires.
    2. When I first heard about President Bush's rules about foreign fighters in Afghanistan, I thought of my Professor. Both the anti-fascists who went to fight in Spain, and the moslems who went to fight in Afghanistan Civil War thought they were fighting for a good cause. You and I probably agree that fighting fascism was a good cause, and that fighting for an extreme and intolerant version of Islam is not really a good cause.
    3. My trouble is I don't think anyone can come up with a description of how to describe ideologically motivated foreign fighters from conflicts that would restricted the ideologically motivated foreign fighters headed towards Afghanistation, but which would have allowed ideologically motivated foreign fighters heading to Spain to fight fascists.
    4. And, of course, as you acknowledged above, during the Soviet occupation, the same kind of ideologically motivated fighters who joined al Qaeda, were trained and financed by the CIA
  4. An ordinary American patriot who shoots, from his kitchen window, at sneaky invaders, is not a member of a militia. Please expand on your answer to 3.1.
  5. Your answers to 3.2? Is that a yes or no?
  6. Your answers to 3.4? Is that a yes or no?
  7. With regard to your answer to 3.6... Please explain how calling religiously motivated extremists freedom fighters in 20 years ago, and calling them terrorists today is consistent.
-- Geo Swan 00:45, 20 April 2006 (UTC)

Geo, I think you're mixing up two things here. It is the laws of war that determine whether someone is an illegal combatant, and not whether he's fighting for a good cause. The goodness of the cause has nothing to do with it. Legal or not, our spies are fighting for a good cause, too. They're still spies. Your Professor may have fought Spain's fascists but I'd like to think that he didn't target their children or base troops in their schools. (That said, I don't know if Geneva applied there.)
As Merecat said, Geneva makes explicit allowances for militia. But to answer one of your questions, if a patriot fights an invader without following the rules then that's illegal --- good cause or not. To take it into civilian life, I'm sure many would think shooting a child-rapist in cold blood is a very good thing, but that doesn't make it legal.
It's perfectly consistent to call someone a freedom fighter 20 years ago if they were truly fighting for freedom, and a terrorist today if they are using the means of terror. You can be a freedom fighter and an illegal combatant at the same time.
-- Randy2063 23:18, 20 April 2006 (UTC)

Interestingly enough your arguments are flawed:
  • Ad 1 We know that many so called enemy combatants did not act without authority because they were not engeaged in combat, or even present on the battlefield (see Padilla).
  • Ad 2 idem
  • Ad 3 idem
Holland Nomen Nescio 16:17, 19 April 2006 (UTC)

I disagree. An article titled Unlawful enemy combatants is notable in and of itself, because "Unlawful enemy combatants" is an actual verbatim designation being used by the US Military regarding certain people captured during the War on Terror. Whether we agree or disagree that this designation is just, is not relevant. Rather, what is relevant is that this is the actual designation being used. It is therefore, worthy of its own article. Merecat 19:44, 19 April 2006 (UTC)

You are correct in saying this is the official designation. Point is that these are other official designations: unlawful combatant, enemy combatant, unlawful enemy combatant, unprivileged combatant/belligerent. Therefore, all these names describe the same and should be discussed in one article: unlawful combatant. A different article for every synonym is not wikipedia policy (see Plame affair).Holland Nomen Nescio 13:55, 20 April 2006 (UTC)
Sorry, I can't agree with this. Don't be confused that similar looking descriptions have been applied, in succession, to the same individuals. The Bush administration's detainee policy has shifted. The change in description reflects changes in policy. Note: The description of Enemy Combatant in the Combatant Status Review Tribunal documents doesn't say -anything- about illegality. Originally they insisted that all the detainees were "captured on the battlefield". We know now that very few of the detainees were captured on the battlefield, for any reasonable definition of battlefield. (see the Denbaaux study) So they quietly changed their description, hoping the public wouldn't notice.
Each description that isn't provably, demonstrably a complete synonym of one of the others, needs an article of its own. -- Geo Swan 14:44, 20 April 2006 (UTC)
I disagree with GS. Although I do think that enemy combatant should remain a separate article because it applies to lawful enemy combatants as well as unlawful enemy combatants, I do not see a valid distinction between "unlawful enemy combatant" and "unlawful combatant", other than unlawful combatant is slightly broader definition because one can also have unlawful friendly combatants. There for I see the article unlawful enemy combatants as an unwarranted content fork and potentially a PVO fork from this article and unlawful enemy combatants should be merged into this article. (further it has an s at the end which breaks the WP:NC policy see WP:NC#Prefer singular nouns) --Philip Baird Shearer 08:21, 21 April 2006 (UTC)

To reiterate:

Unlawful and illegal are not the same - please don't confuse them: Unlawful means not supported by law. Illegal means transgressing a law.

By declaring a fighter to be an Unlawful enemy combatant, the USA is saying:

  1. This person is acting without the authority of any home nation (unlawful)
  2. This person is making deliberate attempts to harm us (enemy)
  3. This person is engaging in combat (combatant)

Merecat 23:33, 20 April 2006 (UTC)

I do not think that the distinction you are trying to make is validated by the words in ex parte Quirin. The people tried in that case were acting with the authority of an enemy power. The example given of enemy combatants coming through the lines dressed in civilian cloths was an example of the war crime of perfidy. It has been so under customary law for several centuries and is spelt out explicitly in Protocol I Article 37.1.c --Philip Baird Shearer 08:21, 21 April 2006 (UTC)

The Gitmo prisioner list was just released. Most of those prisoners are Saudis. They were not authorized (not officially, anyway) by Saudi Arabia (unlawful), they were acting against USA (enemy) and they are accused of being fighters (combatants). Regardless of international laws contentions, etc., the USA designation has clear meaning and this is the correct term - as used by the USA. Stop trying to inject your own view of the terms which are in actual use. Merecat 11:50, 21 April 2006 (UTC)

If they were fighting for the Taliban government, they did not have to be authorised by the Sudi government. (See above 10% of the British Army are foreigners). I do not think that you have addressed the point that the US supreme court in ex parte Quirin does not seem to share your views on the difference between unlawful and illegal. I do not follow your explanation of how an "unlawful enemy combatant" is anything but a subset of "unlawful combatant". --Philip Baird Shearer 12:11, 21 April 2006 (UTC)

Furthermore, Merecat is spreading disinformation. Contrary to his assertion, every detainee is innocent until proven guilty. Second, many are yet to be tried.[98][99] Third, many were not engaged in combat nor apprehended on the battlefield and therefore are not even combatants, lawful or unlawful![100] In fact, according to a recent academic study, later published in the prestigious US National Law Journal, only 8 per cent of Guantanamo inmates can be characterized as 'al-Qaeda fighters', while 55 per cent 'are not determined to have committed any hostile acts against the United States or its coalition allies'.[101] And even innocent people are being held.[102][103]Holland Nomen Nescio 12:25, 21 April 2006 (UTC)

Nescio is confusing claims of actual innocence with what I am talking about and I am not talking about whether Gitmo prisoners are guilty or innocent. Rather, I am only discussing the logical accuracy of the term Unlawful enemy combatants. This is a designation which USA has applied to those so deemed by USA military and who are being confined at Gitmo. Frankly, I am beginning to think that Nescio is either being willfully obtuse, or simply does not speak English that well. I say this because he's constantly arguing tangentally to the points I raise. Merecat 13:18, 21 April 2006 (UTC)
If detainees were not engaged in combat, nor present on the battlefield, it escapes me how designating them unlawfaul combatant can be warranted. Furthermore, the GC obliges the US to first hold "competent tribunals" before such a term may be applied. This was not the case. Clearly those able to read English (in stead of American) understand the contradictio in terminis inherent in Merecat's assertion. As to "claims" of innocence. Since the US military has officially ruled that the Chinese prisoners were mistakenly apprehended I think the use of "claim" is ridiculous and misleading!Holland Nomen Nescio 15:49, 21 April 2006 (UTC)

Merge Unlawful enemy combatants into this article

  • Support Potentally a PVO fork Philip Baird Shearer 08:33, 21 April 2006 (UTC)
  • Oppose Potentially is not sufficient reason. Clearly has distinct meaning requiring its own page. Merecat 10:56, 21 April 2006 (UTC)
  • Support They are interchangeably used, and are in effect synonyms.Holland Nomen Nescio 11:26, 21 April 2006 (UTC)
  • Oppose - Terms are -absolutely not interchangeable- 490 individuals remain incarcerated based on the definition of "enemy combatant" I quoted earlier and will repeat below. -- Geo Swan 13:42, 21 April 2006 (UTC)
  • Support They are the same thing in the way that readers will expect to find them both here. The difference appears to be a clerical one, much like POW and EPW that don't merit separate articles either. -- Randy2063 16:02, 21 April 2006 (UTC)

This straw poll seems to have been superseded by Wikipedia:Articles for deletion/Unlawful enemy combatant --Philip Baird Shearer 23:13, 22 April 2006 (UTC)


(please keep comments below this line - above this is a poll of editors, not an argument)

  • Nescio makes the point, up in the vote section, that the press often uses the two terms interchangeably.
    • Granted, So what? One could speculate why. Maybe some members of the press continue to say the detainees are detained in "Camp X-ray". So what? We have an exact definition of "enemy combatant". Many, maybe most members of the press continue to state that the detainees were "captured on the battlefield" -- definitively disproved by a thorough analysis of the Bush administration's own documents. (See the Denbeaux study)- So what? I have no objection to both articles saying that the terms are often confused by the press, or in the popular mind. But that is absolutely no reason to merge them.
    • Arguably, Bush administration spin doctors are encouraging this confusion. If so a merge would be POV, cheer-leading for the Bush cause. -- Geo Swan 14:13, 21 April 2006 (UTC)
  • The definition of "enemy combatant" used to keep suspects in extrajudicial detention is:
    • " individaul who was part of or supporting the Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”.'
    • The Bush administration has been using this term, and I believe, this term alone, to refer to the detainees since, at least, the release of Mohammed Hagi Fizz, one of the first four detainees to be released on October 2002. Can anyone find a case where a Bush administration official has referred to a detainee as an "unlawful enemy combatant" since that time?
    • Can anyone point to an official definition of "unlawful enemy combatant"? We can't define it ourselves, no matter how logical that definition may seem. That would be speculation and original research, and a violation of WP:NOT. -- Geo Swan 13:53, 21 April 2006 (UTC)

See the link in the article itself for actual usage. Merecat 13:54, 21 April 2006 (UTC)

  • Which link please? -- Geo Swan 14:13, 21 April 2006 (UTC)
    • That is correct, can you also explain who these unlawfal combatants are that the press is talking about?Holland Nomen Nescio 13:49, 21 April 2006 (UTC)

I looked in both links and I can not see a US administration of the use unlawful enemy combatant. Both links are to Guardian articles and the second one refers to "Unlawful enemy combatant", but it does not say that this is a label for a category used by the US, rather the Guradian (and I assume the book it is reviewing) is using the term as this article uses unlawful combatant.

Geo Swan I am confused why you are opposed "unlawful enemy combatants" being merged into this article, because your arguments in this section seem to be for the article "enemy combatant" not "unlawful enemy combatants". --Philip Baird Shearer 15:22, 21 April 2006 (UTC)

See this article and scan for "unlawful enemy combatant". Merecat 15:52, 21 April 2006 (UTC)
Also see this article Merecat 15:53, 21 April 2006 (UTC)
Also see this Senate Press Release Merecat 15:55, 21 April 2006 (UTC)

The first two links you have provided above, to my understanding do not indicate that the US administration use the term. The third one is more interesting, because it is a Senate briefing uses the term "unlawful enemy combatants" as is used in this article to describe "unlawful combatants". BUT we know that Combatant Status Review Tribunal (CSRT) which the Senate briefing is describing do not use this term instead they use the term "enemy combatant", detainees are assumed by the tribunals to be already held as "enemy combatants" and are assessed as either still "enemy combatants" and detention is continued, or not and released. The CSRT can not asses the detainee as a POW (see Moazzam Begg#The Tribunal President's view of Begg's POW status). --Philip Baird Shearer 17:09, 21 April 2006 (UTC)

That reasonably recent Senate Press Release is a pretty clear indicator that the term unlawful enemy combatant is an actual term with actual currency in USA government. Merecat 17:39, 21 April 2006 (UTC)
The same could be said about POW and EPW but that doesn't mean EPW needs a separate article.
But let's imagine that it gets a separate article; does that mean you're going to pull things out of this one?
-- Randy2063 19:19, 21 April 2006 (UTC)
They'll probably be some overlap. Merecat 20:55, 21 April 2006 (UTC)
Yeah, like the phrase "competent tribunal" and then a "see also" section for Criticisms of the War on Terrorism as we transform this place into a Jihadpedia. You might as well move Moazzam Begg over there, too.
What would not overlap?
-- Randy2063 22:20, 21 April 2006 (UTC)

I've updated the article to reflect that enemy combatant i.e. a hostile actor under US ROE, and unlawful combatant/unlawful enemy combatant i.e. a hostile actor under US ROE who is not accorded the protections of the Geneva Convention, are two different things. An unlawful combatant is a priori a subset of enemy combatants, however the converse is not the case: one can be a lawful enemy combatant. SWATJester Ready Aim Fire! 20:35, 21 April 2006 (UTC)

Do you think this article could be GA/FA?

Yes/no? It seems pretty complete at a quick glance. A peer review might be suitable. TheKillerAngel 00:30, 4 July 2006 (UTC)

Needs substantial clean up to be featured. Particularly, it needs balance on the question of whether Geneva Convention "POW" provisions apply to the "enemy combatants" being held by the Bush administration in Gitmo.
It should go beyond a dry, impenetrable rehash of the treaty provisions and say WHY one side claims that Gitmo detainees should be considered POWs entitled to ALL protections of Geneva; and also why the other side argues (1) they are not POWs and (2) should get some but NOT all Geneva protections.
Until the average reader can find the facts (or arguments) relevant to this question, this articl is by no means ready for a status upgrade. --Wing Nut 20:54, 11 July 2006 (UTC)
The treaty obligations are extremely clear.
  1. As a signatory to the Geneva Conventions the USA is obliged to accord all the protections of POW status to all captives -- no matter how "obvious" it may seem to their captors; to those on the home front; or to those leading that country's executive branch; that the captive was a war criminal. As a civilized nation, that practices the rule of law, the United States is only permitted to strip the protections of POW status from captives who have gone through a determination by a "competent tribunal".
    • The USA convened over a thousand competent tribunals during and immediately following the 1991 Gulf War. Those competent tribunals determined that over 70 percent of the captives were not lawful combatants -- they were civilians. They were transferred to civilian refugee camps until it was safe for them to return to their homes. All of the remaining captives were determined to qualify for Prisoner of War status, and were held in proper POW camps until hostilities were over.
    • The USA has not convened a single competent tribunal for any of the 759 Guantanamo detainees, for any of the captives held in its Bagram prison - which is even less pleasant than Guantanamo, or for any 150 captives the CIA holds in secret interrogation centers. Although Bush administration spokesmen, and Bush apologists, try to conflate Combatant Status Review Tribunals with Geneva Convention competent tribunals. But James Crisfield, the chief legal advisor to the CSRTs made clear that the CSRTs lacked the authority to determine whether a captive qualified for POW status.
  2. Bush administration spin-doctors pointed to a particular phrase in the Geneva Conventions -- that said that captive power was obliged to convene a competent tribunal -- "if doubt exists". They argued that the Bush administration didn't have to convene any competent tribunals because they didn't have any doubt that there captives were terrorists. In other words -- it was "obvious" that all the detainees were terrorists.
    • I think it is clear to anyone who bothers to read articles 3, 4, & 5 of the third Geneva Convention that the default was to accord all captives the protections of POW status until and unless they convene a competent tribunal.
    • The legal arguments advanced by Alberto Gonzalez and John Yoo, that the President, in his capacity as head of state, had an obligation to violate any law, or any international treaty, if, in his opinion, doing so was necessary for "national security" reasons could be used by Milosevic, Saddam Hussein, or any other totalitarian dictator.
    • John D. Altenburg, the retired General who Rumsfeld chose to oversee the Guantanamo military commissions, formerly Assistant Judge Advoate General of the US Army, stated his legal opinion that "doubt existed" about the status of any Guantanamo detainee who ever claimed he was a civilian. Almost every one of the 300+ detainee who attended their CSRT asserted that they were civilians. -- Geo Swan 02:25, 12 July 2006 (UTC)

History of the concept

Thank you for providing your POV on this matter, i.e., that the USA is obliged to accord all the protections of POW status to all captives. This needs a source, and then it can be placed in the article. Failing that, it's just your personal interpretation.

My reading of the treaty, which I admit is sketchy, shows that certain captives can have a status other than POW: i.e., the status of unlawful combatant.

Based on my readings of news articles, I have discerned that it is "Bush opponents POV" (i.e., liberals) that Geneva recognizes no distinction among captives other than that between POWs and civilians: i.e., that the category of "unlawful combatant" does not exist. I'm equally certain that it's "Bush adminisration POV" that the Geneva Convention DOES make that distinction.

What we need to do is recognize that there is a dispute between Bush opponents and Bush administration, and describe that dispute "fairly" (to quote Wikipedia:NPOV).

Just about everything you typed in, above, falls under "Bush opponents POV", right? --Wing Nut 13:35, 12 July 2006 (UTC)

This is ridiculous, nobody outside the Bush administration has ever heard of unlawful combatant, it would be fair to say that the dispute is not about being pro- or con Bush, it is about the majority of legal analysts saying the concept did not exist before Bushco started using it, see the numerous links I provided here. Nomen NescioGnothi seauton 13:51, 12 July 2006 (UTC)
I guess this Columbia professor is "inside" the Bush administration? ;-)
Maybe we should write a paragraph or two about the genesis of the concept. Your contention is that it did not exist before Bush Jr. took office, right? --Wing Nut 14:18, 12 July 2006 (UTC)
Wingnut, you asked for my source? I already gave my source -- articles 3, 4, & 5 of the third Geneva Convention.
The passage you quoted, from the quote from the CBC summary of the fourth Geneva Convention is not talking about captives. It is talking about protected persons -- not captured combatants.
"Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, shall not be considered as protected persons within the meaning of the present Convention."
In other words, they can go capture people who are nominally civilians, if they have good reason to suspect they are covertly combatants. And then they have to follow the third Geneva Convention, and convene a competent tribunal, to determine whether they are lawful combatants; or whether they were really civilians after all; or whether they had committed some act that would strip them of the protections of lawful combatant status. And, until they do so, they have to treat them as lawful combatants entitled to the protections of POW status.
If J Q Public really had been leading a covert band of combatants, a competent tribunal could determine he should be stripped of the protections of POW status. But, President Bush stripping all captives of that protection was a gross violation of the convention. -- Geo Swan 18:52, 12 July 2006 (UTC)

Feel free to provide the exact location in US and international law where this definition is made. In the mean time you might want to read the following: [104][105][106][107][108][109][110][111][112][113][114][115][116][117][118][119][120][121]. Having read these articles nobody, outside the Bush administration, seriously maintains the concept is well known and accepted through history.(adapted from above) Nomen NescioGnothi seauton 14:22, 12 July 2006 (UTC)

Okay, how about Article 5 of the Geneva Convention?
  • 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. [122]
Please take some time to think this over, and then let me know whether you would like to cooperate on the project of describing the CONFLICT between the anti-Bush and pro-Bush points of view. --Wing Nut 14:24, 12 July 2006 (UTC)
Where exactly does it define the concept? Maybe I misread, but I can't find the term unlawful combatant. As I see it the term is not defined but people infer from the definition of a lawful combatant what unlawful combatants must be. Second, have you read the links? Nomen NescioGnothi seauton 14:39, 12 July 2006 (UTC)

I didn't read all those links. I stopped at the first one, which supports your POV.

I'm still studying the article by Nathaniel Berman, which is cited early on in the Unlawful combatant intro.

He wrote:

  • Some of the critics of the United States even asserted that the term had been newly coined for the specific purpose of justifying U.S. policy towards post-9/11 prisoners, that it had been invented in the fall of 2001 "for Donald Rumsfeld . . . to get him through his news conferences."
  • Yet, whatever the merits of the treatment of the post-9/11 prisoners, it was not true that the disputed concept was of recent vintage. Whether in the form of "unlawful combatants" or in the more correct form of "unprivileged combatants," the concept and its attendant controversies are inevitable byproducts of the legal construction of war.27 The concept simply refers to those fighters who fail to meet the criteria for the combatants’ privilege, criteria whose constructed, contingent, and contested quality I have outlined in the preceding section. The legally correct term for the concept, "unprivileged combatants," suggests the consequences of the failure to meet those criteria. Engagement in combat by those not covered by the combatants’ privilege, assuming no war crimes are committed, is not illegal per se under international law.28 Rather, since such acts are not immunized by international law, the contending parties are free to punish individuals engaged in such activities under their own law. (Source: [ Privileging Combat?

Contemporary Conflict and the Legal Construction of War])

I think this clears up the matter of how "old" the idea (or term) is.

Still, it is an interpretation and you have yet to show where this concept is defined. Secondly, apparently you ignore the multitude of articles showing that prior to the Bush administration's use of it, it was not known nor used. Nomen NescioGnothi seauton 14:58, 12 July 2006 (UTC)
perhaps I am misreading but does it not state it was used in the supreme court case some time ago. --zero faults |sockpuppets| 15:03, 12 July 2006 (UTC)
You're not the only one having trouble with this, so is the CNN law center:
  • The U.S. Supreme Court defined an "enemy combatant" or "unlawful combatant" in a World War II case, Ex Parte Quirin. In this 1942 decision, the court confirmed the authority of Congress and the president to try Nazi terrorists operating in the United States by military commissions. [123]
It appears everybody other than us Wikipedia contributors sees the concept of "unlawful combatant" as stemming from that supreme court case. How could they all be so blind? --Wing Nut 15:33, 12 July 2006 (UTC)
To most readers saying Quirin first used the term is not equal to saying the current definition of the term is based upon Quirin. Evidently those are to seperate issues. Nomen NescioGnothi seauton 14:41, 13 July 2006 (UTC)

Supreme Court 1942

  • The possibility of an exception to Milligan for “unlawful combatants” derives from Ex parte Quirin, 317 U.S. 1 (1942), and the interstices of international law. Quirin dealt with a military commission trial of Nazi saboteurs, one of whom was a U.S. citizen. The Supreme Court held that certain enemy belligerents—specifically those who “without uniform come secretly through the lines for the purpose of waging war”—may be detained without constitutional protections even if they are U.S. citizens:
  • [T]he law of war draws a distinction between . . . 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. [124] (American Bar Association, Human Rights Magazine, Daniel Kanstroom)

Sounds like the concept of "unlawful combatant" is not a novel one. Rather, there is a genuine dispute between certain sides over whether it's a valid one. Let's identify the sides, and present their arguments. I've been calling them anti-Bush and pro-Bush. You know the anti-Bush arguments.

I don't know the pro-Bush arguments, but simply googling "unlawful combatant" gave me several splendid sources (as cited above). I'll check back later, and see if you want to work together on this. --Wing Nut 14:32, 12 July 2006 (UTC)

In this edit Wing Nut cites an article written by a law professor, in the American Bar Association's Human Rights Magazine. Wing Nut argues that this article proves that "unlawful combatant" is not a novel concept. IMO, it is a mistake to state that the idea of unlawful combatant is novel.
However, the article does not, IMO, back up Wing Nut's assertion that the term "unlawful combatant" is recognized in international law. Let me quote a passage from the article Wing Nut cited:
"This distinction may also be found within the structures of international law, particularly the 1949 Geneva Conventions. The Geneva Conventions state that members of armed forces (such as Al Qaeda) qualify for prisoner of war status if they meet four criteria: (1) being commanded by a person responsible for subordinates; (2) having a fixed distinctive sign recognizable at a distance; (3) carrying arms openly; and (4) conducting operations in accordance with the laws and customs of war. Although it seems likely that Al Qaeda fighters would fail the last three criteria, the question—potentially relevant to Hamdi—whether Taliban fighters should qualify as lawful combatants is a closer one. It should be noted, in any case, that Article 5 of the Third Geneva Convention requires that a tribunal determine whether a person is entitled to POW or even civilian status. Thus, every captured individual should be presumed a prisoner of war until determined otherwise by a competent tribunal."
Wing Nut's own sources acknowledge that every Guantanamo detainee was entitled to POW protections until their status was determined by a competent tribunal. This would be the real article five -- not the one that Wing Nut thought he was citing earlier. -- Geo Swan 10:59, 30 August 2006 (UTC)

A tribunal is only required to determine status if there is doubt as to their status (which there was not, as they were captured bearing arms but out of uniform), which is clear if you read those references carefully. After people called this into question as a protest, not because their is any real question, then they had a right to a quick tribunal to determine their status, as has happened. Also a tribunal is required to determine whether they should be punished (if punishment is intended), including punishment for violating the laws of war. In the past, such illegal combatants were normally executed after such a tribunal; incarceration of illegal combatants (as opposed to execution) was rare, usually reserved for high-value prisoners.Cuberoot31 01:34, 2 September 2006 (UTC)

POW, civilian, or what?

Here's a point of view from 2 former Justice Department lawyers:

the Supreme Court has not required that the Geneva Conventions be applied in the war on terror; neither members of al Qaeda nor their allies, including members of the Taliban, must be granted POW status because of the Hamdan decision. [125]

Rivkin and Casey suggest that Bush opponents are misreading Hamdan v. Rumsfeld. I'd like to see their POV included in the article, to balance out the anti-Bush POV. --Wing Nut 13:53, 13 July 2006 (UTC)

Not relevant since this ruling says nothing about POW/unlawful combatant status. What exactly is it you want to mention? Nomen NescioGnothi seauton 14:42, 13 July 2006 (UTC)

Some more on this:

--Philip Baird Shearer 14:52, 30 August 2006 (UTC)

I'd like to note that Wing Nut's comment is clearly relevant, as Hamdan v. Rumsfeld is used in this article, and POW status is the center of this discussion.PeaceThroughStrength 05:53, 2 September 2006 (UTC)

Neutral point of view?

This article appears to put in a few token comments of the basis of the theory of what an unlawful combatant is, and then has about ten times as much content claiming to disprove it. I do not consider that a neutral point of view. In addition, I have found in the past significant citation errors, and I am sure there are more in the citations I haven't read all the way through. I am not impressed by large numbers of false or exaggerated citations, though those with less time to read them carefully might be. I think it's critical to note these facts: 1) an illegal combatant is a combatant who isn't a legal combatant; this is an ancient and easily understood definition. 2) Article 2 and 4 of GCV III & IV clearly limit who is provided the protections of the conventions. This is so there aren't free-rider nations who ignore the conventions in carrying out war crimes, but whose nationals then claim the protections of the conventions when captured. If this wasn't the case, it would mean that nations would have absolutely no incentive to abide by the conventions. 3) It can be useful to differentiate here between US law and international law; some citations mention protocols the US isn't signatory to, which can cause confusion. If the US hasn't ratified a law, how is it in violation of said law? International treaties do not have automatic sovereignty.PeaceThroughStrength 05:48, 2 September 2006 (UTC)