WHY THE BUSH ADMINISTRATION IS CORRECT TO CLASSIFY TERRORISTS AS ILLEGAL COMBATANTS AND WRONG NOT TO TRY AND EXECUTE THEM

"Illegal combatants" is an issue on which the Bush administration has taken much heat in the last four years. Oddly enough, refusing Islamist terrorists POW status is legally sound though they would have spared their critics all room for legitimate complaint if the Bush administration had set up tribunals to process al Qaida captives individually and then label them instead of doing it through a blanket proclamation. Fighting out of uniform is a war crime, punishable in and of itself though this is not widely known or understood.

A scholar asked me the following question on H-Diplo recently during a discussion on " Fighting out of Uniform":

"I would like to ask for the reference in the international law of war for his statement that not wearing a uniform is "punishable because it puts the civilian population at risk for reprisals."

To which I responded, more methodically than usual, because I really want to try to put this issue to bed:

"Putting the civilian population at risk for reprisals was,in my view, merely the self-evident reasoning behind regarding fightingout of uniform as a war crime. On the act of fighting out of uniformitself, the Laws of War,in theory and practice, deal with out of uniformcombatants primarily as spies and saboteurs. The logic of thetextual definition of a spy implicitly assumes that espionage is a crime:

Laws and Customs of War on Land (Hague IV) 1907

Article 29:

A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicatingit to the hostile party.

Thus, soldiers not wearing a disguise who have penetrated into the zoneof operations of the hostile army, for the purpose of obtaininginformation, are not considered spies. Similarly, the following are notconsidered spies:

Soldiers and civilians, carrying out their mission openly, entrusted with the delivery of despatches intended either for their own army or for the enemy's army. To this class belong likewise persons sent in balloons for the purpose of carrying despatches and, generally, of maintaining communications between the different parts of an army or a territory.

Article 30:

A spy taken in the act shall not be punished without previous trial.

The implicit assumption in Article 30 is that espionage during war timeis a crime and that accused spies should be given a fair trial and notsimply executed summarily. To be a spy, you must be out of uniform andnot in it, as Article 29 makes clear

In Ex Parte Quirin, the Supreme Court of the United States ruled alongthese very lines that belligerency out of uniform violated the Laws ofWar - i.e. that it was an offense unto itself and not merely a technical ineligibility for POW status:

By *universal agreement and practice* the law of war draws a distinctionbetween the armed forces and the peaceful populations of belligerentnations7 and also between [317 U.S. 1, 31] those who are lawful andunlawful combatants. Lawful combatants are subject to capture anddetention as prisoners of war by opposing military forces. Unlawfulcombatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for actswhich render their belligerency unlawful. The spy who secretly andwithout uniform passes the military lines of a belligerent in time ofwar, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly throughthe lines for the purpose of waging war by destruction of life orproperty, are familiar examples of belligerents who are generally deemednot to be entitled to the status of prisoners of war, but* to be offenders against the law of war subject to trial and punishment by military tribunals*.

[ emphasis mine]

Nor is the United states alone in this view. Singapore dealt with a case of sabotage by Indonesian soldiers out of uniform in 1966 that was very similar to that of the Nazis in Ex Parte Quirin. The Federal Court of Singapore took a view nearly identical to that of SCOTUS, ruling in Krofan and another v. Public Prosecutor , that:

However, the position of members of the armed forces caught out ofuniform while acting as saboteurs in enemy territory is not dealt with bythe Hague Regulations. In the Saboteur's Case (Ex parte Quirin & Ors.)(1) the Supreme Court of the U.S.A. in 1942 treated disguised saboteursas being in the same position as spies. This view is also held by theauthors of the Manual of Military Law Part III an official publication in1958 of the United Kingdom War Office at paragraph 96 page 34 where it isstated "Members of the armed forces caught in civilian clothing whileacting as saboteurs in enemy territory are in a position analogous to that of spies." We are of the opinion that this view does not offendagainst the rules of the law of nations respecting warfare and indeedstates the position under customary international law. It seems to us tobe consistent with reason and the necessities of war to treat a regular combatant in disguise who acts as a saboteur as being in the sameposition as a regular combatant in disguise who acts as a spy. Both seek to harm the enemy by clandestine means by carrying out their hostile operations in circumstances which render it difficult to distinguish them from civilians. In the case of the "soldier" spy it is universallyaccepted that he loses his prisoner of war status and need only betreated as any other spy would be treated. There seems no valid reason therefore why a "soldier" saboteur, who by divesting himself of his uniform cannot readily be distinguished from a civilian, should not also be treated as any other saboteur would be treated. Both, by reason oftheir having purposely divested themselves of the most distinctivecharacteristic of a soldier, namely his uniform, have forfeited their right on capture to be treated as other soldiers would be treated i.e. as prisoners of war.

We will now examine the position under the 1949 Geneva Prisoners of War Convention. Under article 4A(1) persons belonging to the category of"members of the armed forces" of a party to the conflict are prisoners ofwar. Has this definition of prisoners of war altered the position of the"soldier" spy or "soldier" saboteur who has divested himself of his uniform? We are of the opinion it has not. The conditions of modern warfare are not such as to make the spy or the saboteur any less dangerous or more easily distinguishable or more easily apprehended than at the time of the Hague Regulations. As we have mentioned, the Hague Regulations gave the status of prisoners of war to "members of the armed forces" of the belligerents. The words used in article 4A(1) of theGeneva Convention and article 3 of the Hague Regulations to describe regular combatants are identical namely "members of the armed forces." In our opinion the principle applicable remains the same, namely, that a regular combatant who chooses to divest himself of his most distinctive characteristic, his uniform, for the purpose of spying or of sabotage thereby forfeits his right on capture to be treated as other soldiers would be treated i.e. as a prisoner of war. If such a spy or a saboteur is tried under the domestic legislation of the detaining power such trial can take place in camera, no notification is required to any ProtectingPower and no rights of communication under article 107 of the 1949 Geneva Prisoners of War Convention exist. However, he must be treated with humanity and afforded a fair and regular trial

Fighting out of uniform is quite reasonably regarded as a war crime,punishable for that act alone, if so convicted by a competent tribunal,commission or court-martial.

The Bush administration has generally erred on the side of gentleness with al Qaida prisoners, renditions to unpleasant places and abu Ghraib excepted, most captives have been treated better than International Law requires. No one has been convicted of war crimes and sent to a firing squad, not even Khalid Sheikh Mohammed, who certifiably has the blood of over 3000 Americans on his hands. Women, children, old men. Noncombatants made a primary target.

Perhaps when you consider the tribesmen who have been picked up in error or Iraqis who were taken prisoner because a personal enemy with English proficiency falsely fingered them as a Baathist agent, it is not a bad idea to have gone slow. Intelligence needs weighed in here as well and such needs right after 9-11 were critical when no one knew if another apocalyptic act of terror was in the offing.

But by keeping known, hardcore, mid-level al Qaida leaders in a state of legal limbo instead of trying them the Bush administration is not merely delaying justice. Instead, it is rewarding terrorists for their actions and encouraging further terror. If the worst a national al Qaida cell leader can expect is a possible flight back to Egypt or Syria, well, where do you think these jokers came from in the first place ? They grew in to radicalism in secret police jails. It's a familiar place to them.

Carrying out military justice in public is also important. It states that we are serious about terrorism. It upholds Geneva by attaching a real and frightening penalty for violating the Laws of War and it demystifies Islamist " struggle" for what most of these acts really are, war crimes. It tells the Europeans that the era of glorifying the sick criminal gangs of the Gap as some kind of " national liberation movements ",and pretending that they are composed of honorable soldiery, is over once and for all.

Get your tribunals rolling Mr. Bush ! Justice has been kept waiting long enough.  ¶ 3:44 PM