Genevoid Confusion

David Schraub at the Debate Link pulls what is becoming a standard ploy for the left, that is, to complain about a thing without offering any reasonable alternative. It is always easy to complain about anything, witness the career of Mr Thomas Paine. But as John Adams pointed out, building something up is harder to do. And more to the point, without the building up, we have nothing.

Mr Schraub is complaining about the new bill of which he writes

It’s important to note that the most horrifying portions of this bill are how they eviscerate protections at the procedural level. One can believe that we should treat illegal combatants differently than POWs–I agree. But as was pointed out by Stanford Law Professor and detainee expert Jenny Martinez, it is an inversion of basic principles of justice to apply said punishment as part of the procedure for determining who deserves the punishment itself.

elsewhere he writes

Illegal combatants can ipso facto be tried for war crimes. POWs can’t (POWs can for specific act, but being an illegal combatant is a crime in of itself). From there, its a difference in how we detain. POW detainment is theoretically not punative–it isn’t supposed to be a punishment. Illegal combatant detainment is more akin to prison–its incarceration.

This is curious. What Mr Schraub suggests is of the “and a pony” varietal, pie in the sky and fanciful. Allow me to explain. What he suggests is that in a firefight with dozens (hundreds?) of illegal combatants, we must now ask our soldiers to document, detain, mirandize(?), and offer legal counsel(?!), and then testify in court to the circumstance of their apprehension. Must we, instead of embedding journalists, train and send teams of lawyers to accompany our soldiers as they make their rounds. Lawyers might have a high opinion of the value of their work, but to be honest, the rest of the business and non-legal world in not so high on the opinion that more lawyers, red-tape, and paperwork is always a good thing. Is it truly a view on the left that in this conflict with radical Islam, that more lawyers is the solution. That should be an GOP campaign sound-bite. In the Western world, it was recognized that the “political officers” and cadre in the Red Army did not help the Soviet fight the Nazis in WWII. Now Mr Schraub intends to send a cadre of politically correctness officers/lawyers to make sure those illegal combatants get due process. The biggest problem with this of course that is completely impractical. The other problem is that this actually gives more not less protection to the illegal combatant than the legal POW. How might that actually in practice act as any sort of deterrent to discourage illegal activity, unless association with lawyers is seen as deterrent. 😉

Mr Schraub blithely replies (in this post) to my query

Would it be better in your opinion to summarily execute illegal combatants? If not, how then might we distinguish our treatment of legal and illegal combatants?

he replies

Summary execution would be a war crime in of itself (just as it would be a human rights violation if done to criminals).

Hmm, so not accepting the surrender of a cadre of men who have been firing mortars from mosques or hospitals is a war crime? Exactly how a refusal to accept the surrender of armed active illegal combatants is classified as a war crime is beyond me. He quotes Geneva violations but … from the Geneva Convention we have a definition of those combatants whom are covered.

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 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.

The mystery to me is how the left (or Mr Schraub) insists that extra-national illegal combatants (in the sense of not doing any of 2(a)-(d) in the above) might be seen to be covered by this document at all, so at best it is unclear how not accepting their surrender be a “war crime”. Furthermore the enemy has made a common tactic of feigning surrender, which in return yields to the “double tap”. I would think the decision to inter or to not accept their the surrender of illegal combatants should be a tactical (or perhaps theater wide strategic) one not ethical.

The point is that Mr Schraub without offering any bit of a useful suggestion for how to do this particular job better instead he offers roadblocks, complaints and solutions which work in an academic environment but never would in the field. How will adding lawyers, legal procedings, and wrangling help root out and deal with extra-national combatants in Iraq and Afghanistan? How will giving Habeus Corpus (a right it seems to me not specifically granted to POWs via the convention) be a deterrent to help convince those illegal combatants to stop that practice. It seems to me the laying down of rules of engagement and treatment of prisoners (or not) is a complicated issue. Mr Schraub lightly dismisses the complications of that necessity with what seems the indifference to the real world that is all the left seems to offer these days. So the challenge to Mr Schraub is to footnote his complaint of the “loss of the soul of America” must be countered with a better solution. Tell us better rules of engagement in this WoT than we are using. Or to put it prosaically, “If you don’t have a better solution, then shut up and keep pulling.”

The arabic Islamic culture that comprise the opposition we are told is an honor driven society. Which means that it is likely my suggestion of summary execution is not the correct treatment for that might honor them. Disdain, embarrassment, and ridicule might work better, perhaps stocks or other New England Puritan methods of public humiliation? Degrading tatoo’s or embarassing scarification? I don’t know, but I bet some modern cultural anthropologists would.

Finally, I’d like to make clear, I most emphatically don’t condone torture. On the one hand, I’m a little unsure how to define it. As I noted once, what is torture for one man is not for another and there are cultural elements as well (for example what would be seen as cruel and unusual confinement in even some third world prisons today would be better than middle class accommodations were on a long haul sailing vessel 300 years ago). It has been noted of waterboarding for example, that similar treatment is used on TV game shows wherein contestants voluntarily undergo this treatment (or worse) for a chance at a medium sized financial remuneration. Torture has also been claimed to be ineffective. While I’ve seen drawing room arguments behind that argument I’ve seen no actual data to back it up, and those who have the capability to gather that data (those behind walls of government secrecy) can know conclusively what works and what doesn’t and they are the ones who turn to its use. But on the other hand, there is treatment which clearly can be defined as torture. This I think should never be legal. There may be situations where an officer of the state feels that the cost (torture) is outweighed by the risk (what might occur if the information sought is not gotten). In that case I think that the cost for that officer should at the very least be his career if not his freedom. The officers of the government are often asked (in the case of our military and law enforcement) to lay down their life for his state. It seems that if the call came, might he also not lay down his career and good name? On what we might think of those acts and practices in the muddy messy middle ground … I think this is (and should be) a hard call.

Leave a Reply

Your email address will not be published. Required fields are marked *


  1. This is dumb. I’m sorry, but there is no other way to describe it. I started to write the response in comments, but it spiraled out of control and became a full post. Your Geneva analysis is wrong as a matter of law, your normative analysis is less of an examination of morality as it is a capitulation of the continued relevance of morality, you create an utterly ridiculous Miranda strawman as a substitute for grappling with the far more modest (and sane) alternative of habeas review, and you don’t even pretend to offer a mechanism for protecting innocents who are detained under the provisions that are not set up.

    And refusing to accept the surrender of the morter dudes? A war crime. Unambigiously so. Articles 40 and 41 of Geneva. No question about it, not even close.

  2. jpe says:

    Must we, instead of embedding journalists, train and send teams of lawyers to accompany our soldiers as they make their rounds.

    I don’t see why this would be the case. A guy is captured, the reasons for his capture are communicated, presumably, and I’d imagine those reasons are eventually written down by someone. That’s really all you need.

    The primary reason, IMHO, for habeas, is to avoid what’s already happened: locking people up that we bribed warlords to capture, many of whom were just minding before their business before being picked up for the bounty.

  3. Mark says:

    And at his hearing the combatant denies it.

    Either habeas is meaningless for those captured by our soldiers or it is absent. I see little difference.