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Rodney G. Graves
From the Archives

Copyright Ó 2005-2006 by Rodney G. Graves, all rights reserved.
Originally Published on Bayosphere.com  07/22/2005

The Customary Laws of War

Dislcaimer  
Before we begin. I am not a lawyer. I don’t play one on TV. My background on this is as a former serving officer who was (as all members of the armed forces were then, and are now) educated on the matter.

Background  
The customary laws of warfare initially had precious little to do with "Human Rights" (a much later notion). While they have recently taken notice of the concept, they have far more to do with the more humane customs and traditions of land (and to a lesser extent, naval) warfare as practiced by Western Civilization. 

Most people, to include most historians and lawyers, don’t have the background history of these traditions and customary laws. This is not a personal criticism; very few (as a percentage of population) do. Most of those who do have the background history do so as a consequence of having been trained by the Armed Forces in the matter. As I alluded above, most of my understanding of these matters originates in coursework developed by the Navy’s Judge Advocate General. 

The Hague Treaties and Geneva Conventions were written to codify the most humane practices of the Western Civilizations when it came to the inherently inhumane practice of warfare. They attempt to set bounds and standards for an activity which is (by its very nature) resistant to such restraints. 

They are based on an underlying assumption of reciprocity. 

By following the customary laws, Treaties and Conventions, one extended the protections to others in the belief that by so doing one had secured the same protections for ones own forces and civilians. The negative reinforcement was that failing to meet these standards of behavior and treatment freed one's enemies to act in the same manner. 

GENVA III  
As a consequence, the GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR OF AUGUST 12, 1949 (GENEVA CONVENTION III) specifically identifies who is entitled to treatment as a prisoner of war in Article 4: 

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. 

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil[sic] 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. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. 

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. 

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. 

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

B. The following shall likewise be treated as prisoners of war under the present Convention: 

(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment. 

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties. 

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention. 

Applied to Guantanamo Detainees  
Flatly, the persons being held in Guantanamo Bay fail the above tests at:

4.A(1) What regular army as a part of what nation can they claim membership in? 
4.A(2)(a) Who is their commander and what is their chain of command? 4.A(2)(b) What uniform or distinctive badge or identifier were they wearing at the time of their capture?
 4.A(2)(c) Were they bearing arms openly? 
4.A(2)(d) Were they conducting operations in accordance with the customary laws of land warfare? 

So they fail the test of Article 4. 

Article 5 provides the answer to "now what?" 

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. 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. 

The "any doubt" qualifier requires quite a bit of stretching to apply to the Al-Qaeda members detained at Guantanamo Bay, given that Al-Qaeda has repeatedly repudiated the customary laws of war in both word and deed. It seems a lawyer was found willing to make that stretch. 

Hamdam vs. Rumsfeld.  
Hamdam was captured in Afghanistan. He was not operating as part of the Taliban, but rather as part of Al-Qaeda, by his own admission. Hamdam’s lawyer filed a writ of habeus corpus and maintained that Hamdam could not be tried by a military commission unless a "competent tribunal" first found that he was not a Prisoner of War subject to the protections of Geneva III. The 3 Judge Panel of the appeals court (of which panel Judge John Roberts was a member), in overturning, found:

1. Hamdam was entitled to the protections of a writ of habeous corpus. [Not exactly a blow to civil liberties]
2. The Bush Administration did not violate the separation of powers provision of the Constitution by establishing military tribunals. [Case history for military tribunals dates back to the Civil War]
3. The Federal Courts do NOT have power of enforcement or interpretation over the Geneva Conventions. Such treaties are instead properly enforced by the Executive as a matter of foreign policy.
4. Even if the Geneva Conventions could be enforced in Federal Court, Hamdam would not qualify under Article 4 as a PoW. Nor does the convention apply to Al-Qaeda and its members. [Failed to meed black letter law of the Treaty in question]
5. Even if the Geneva Conventions applied, Hamdam would have to exhaust the military commission and it’s review process before bringing case in Federal Court. [Proceedural]
6. A military commission need not comply in all details with the UCMJ (Uniform Code of Military Justice) and MCM (Manual for Courts Martial), as those manuals specifically state (military commissions are a special case under both). [Upholding the military commmission provisions of UCMJ and MCM]
7. Military procedures and Article 5 of Geneva III do not bar the military commission from proceeding.

Positive or Negative Feedback  
To extend the Geneva III protections for Prisoners of War to Al-Qaeda is to legitimize their violations of the Laws of Land Warfare. That is why Article 4 Section 2 subsection d required that irregular forces, to be considered eligible for PoW status, must meet the requirement "...of conducting their operations in accordance with the laws and customs of war."  

They have not, and show no signs of doing so in the future. 

Denying Al-Qaeda members the protections they have failed to earn may do little to deter them, but it does allow us to interrogate them (an action forbidden under Geneva III for bona fide PoW’s). 

The converse position, that of granting those Geneva III protections to overt war criminals such as Al-Qaeda weakens the incentives to adhere to the customary laws of war going forward. 

Conclusion  
We have, in point of fact, been treating those we have captured far better than they have treated the Americans (and other westerners) they have captured or kidnapped. The worst spin on the abuses by American Forces against prisoners we hold appear very mild and meek indeed when compared with routine treatment in the Hanoi Hilton during the late unpleasantness in Southeast Asia. Nor would any rational actor claim they compare to the treatment of Allied Prisoners of the Imperial Japanese forces during the second world war, or of the Soviet and Nazi forces towards each other on the Eastern Front during that same conflict. 

By behaving as they have, they have opened themselves to far worse treatment than they have received. 

In his opinion in Hamdam vs. Rumsfeld Judge Roberts upheld the laws and treaties as written.

Out Here 
Rodney Graves
rodney.g.graves@gmail.com