Should captured terrorists fall under the same rules/laws as a traditional POW?

2014-06-05T17:00:32-04:00

A declaration of war and an act of terrorism are distinctly different things. Do you feel that captured terrorists should fall under the same rules/laws as a traditional POW? Should there be separate laws for captured terrorists?

Response by 1LT Private RallyPoint Member made Jun 5 at 2014 5:04 PM

2014-06-05T17:04:12-04:00

TSgt M,

I am a kind and gentle person. I may be rather long in the tooth and not pc. But, I believe that terrorists who don't wear an identifiable national military uniform should be treated as unlawful combatants and/or mercenaries and/or spies subject to execution on capture.

USDOS colleagues take the somewhat gentler position holding that unlawful combatants / mercenaries / spies do not exist therefore captured individuals in these categories should be treated as civilians who must be tried before a military or civilian tribunal prior to execution.

Warmest Regards, Sandy

http://en.wikipedia.org/wiki/Unlawful_combatant

Unlawful combatant - Wikipedia, the free encyclopedia

An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a combatant who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action; subject of course to international treaties on justice and human rights.[1]

Response by COL Private RallyPoint Member made Jun 5 at 2014 5:08 PM

2014-06-05T17:08:24-04:00

Well, here's the Joint Definition:
A detained person as defined in Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949. In particular, one who, while engaged in combat under orders of his or her government, is captured by the armed forces of the enemy. As such, he or she is entitled to the combatantâs privilege of immunity from the municipal law of the capturing state for warlike acts which do not amount to breaches of the law of armed conflict. For example, a prisoner of war may be, but is not limited to, any person belonging to one of the following categories who has fallen into the power of the enemy: a member of the armed forces, organized militia or volunteer corps; a person who accompanies the armed forces without actually being a member thereof; a member of a merchant marine or civilian aircraft crew not qualifying for more favorable treatment; or individuals who, on the approach of the enemy, spontaneously take up arms to resist the invading forces. Also called POW or PW.

So, while the LT's short definition may be applicable, by the same argument, a foreign army's Special Forces could fall under the same rule. A POW has to have an enemy combatant label and in order for that to happen, they actually have to have a government which as signed on to the conventions. This is VERY loose and low, but it's as simplistic as I could make it. If you call them POW's, then you take the top off of pandora's box about the definition of POW or EPW to include domestic groups...inlcuding US Citizens.

Response by SGT(P) Private RallyPoint Member made Jun 5 at 2014 5:58 PM

2014-06-05T17:58:45-04:00

The terrorists that we currently face are not POW's and as such we have no obligation to relelase them at the end of hostilities. If you go a little more in depth into Article 4 of the Geneva Convention previously referenced by the LTC it clearly lays out who is classified as a POW. Terrorists would fall under Article 4, Section A2 which states:

"Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war."

The terrorists we face are an organized resistance movement. They coordinate, plan, and adapt (organization) to what we do and they have a common goal which is to resist and expel our forces from their area. Once that it is established you must look at the 4 test within the section. They have a chain of command and the leadership in place is responsible for subordinates, that checks off "a". They do not have signs hanging over their head or any way to identify them as terrorists, that would kind of defeat their purpose. They do not always openly carry their arms. This ties back into the distinctive sign part somewhat. It would defeat their purpose if they always walked around with a weapon. Lastly they do not act in accordance with the laws and customs of war. I could go into numerous detail where they have violated these laws and customs, but we could be here all day. So the last 3 test of this section they fail. They do not fall under any other section of Article 4, so they can not be POW's.

To your other point of separate laws for terrorist. They are breaking international law, which is litigated by the International Criminal Court (ICC). However, the US does not recognize the ICC as a legitimate body because it could subject US citizens and service members to a set of laws outside the control of our government. This leaves esentially 2 options, if they have broke the law in the country where they were captured then they can fall under their criminal system, or we can detain, hold, and interrogate them until we figure out something to do with them. The latter is the option we have choosen. There is a lot of litigation going on within the US as to what to do with them. Eventually we will get it sorted out, but I do not see us just releasing them when the hostilities are over.