Assume the Position

Saturday, April 05, 2003
 
Protocols of the Elders of Geneva. This is not the story of a conspiracy. Nor is it a story of secrets or cover-ups. It is, instead, the story of a group of people with honorable intentions who worked for three years and made a mistake that lay dormant and unnoticed for two decades. That mistake has now sprouted into a tentacled mess.

It is the story behind Article 44 to 1977's Protocol I. The mistake has nearly codified the ultimate in moral relativism into international law: "One person's terrorist is another's freedom-fighter." It is the cause of all the wailing and wrangling over the "detainees" from the operations in Afghanistan, and the reason the Iraqi regime calls the members of the coalition forces "mercenaries."

[The LOAC is one area where common sense sometimes gets in the way (yes it's a "war," and, yes, that individual is a "prisoner;" but, no, that doesn't necessarily make him a "prisoner of war"). I don't want to be more pedantic than necessary, but because so much of the confusion revolves around strict definitions versus the common usage of words and phrases, I'm going to explain how I will be using a few terms. There's nothing strange in my usage, I just want to rule out any alternative meanings or additional connotations associated with the terms:
  • Law of armed conflict (LOAC) means the collection of customs and international agreements (Hague, Geneva, etc.) that is also known as the "law of war" and forms that part of "international humanitarian law" dealing with armed conflicts.
  • Legitimate/legal/lawful all mean according to the law of armed conflict (LOAC) as it existed at the time.
  • Illegitimate/illegal/unlawful all mean prohibited by the LOAC, or failing to do something required (not optional) by the LOAC.
  • Attack means to bring lethal and/or destructive force against; e.g. bomb, shoot, etc.
  • Target (noun) means a specific object, location, or person(s) intended to be subjected to an attack.
  • Target (verb) means to select a target (noun).
  • Protected class/status is the classification of specific objects, locations, or persons into groups which have specific characteristics and obligations which, when met, levy various obligations on the belligerents.

    So, if I say, "The bridge was a legitimate target," I'm not rendering an opinion on whether bridges should be targets or not; I'm saying the bridge did not have protected status under the LOAC and could legally be attacked.]

  • The most basic principle underlying the LOAC is reciprocity: classes that are allowed to attack may be targets of attack, classes that are granted a protected status such that they are not to be targets are not allowed to attack. The protected status of an object, location, person (or, occasionally, an entire class) is forfeit whenever it no longer meets the characteristics or obligations required for that protected class.

    The International Committee of the Red Cross (ICRC) is the keeper of the Geneva Conventions. Going back to at least 1906 [1], they have drafted the provisions and then diplomatic conferences were held where the wording was hashed out and the final agreements were opened to the States for signature. The ICRC's goals are humanitarian, and so, they seem to draft their proposals with only minimum concerns about efficiently and effectively conducting military operations.

    From the ICRC Introduction to Protocol I [bold added]:

    The present Protocol brings mainly the following innovations:

    Article 1(4) provides that armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes are to be considered international conflicts.

    Part II (Articles 8-34) develops the rules of the First and the Second Geneva Conventions on wounded, sick and shipwrecked. It extends the protection of the Conventions to civilian medical personnel, equipment and supplies and to civilian units and transports and contains detailed provisions on medical transportation.

    Part III and several chapters of Part IV (Articles 35-60) deal with the conduct of hostilities, i.e. questions which hitherto were regulated by the Hague Conventions of 1899 and 1907 and by customary international law. Their reaffirmation and development is important in view of the age of the Hague Conventions and of the new States which had no part in their elaboration. Article 43 and 44 give a new definition of armed forces and combatants. Among the most important Articles are those on the protection of the civilian population against the effects of hostilities. They contain a definition of military objectives and prohibitions of attack on civilian persons and objects. Further Articles (61-79) deal with the protection of civil defence organizations, relief actions and the treatment of persons in the power of a party to a conflict.

    Part V (Articles 80-91) brings some new elements to the problem of the execution of the Conventions and the Protocol.

    The bolded statement is misleading; Protocol I modifies the definition of "armed forces" by providing an initial definition for "combatants." The word "combatant" does not appear any of the four Geneva Conventions of 1949. Up until 1977, "combatants" only appeared in its common usage meaning "fighters," which can be seen in the definition of "armed forces" in the Regulations of War, Annex to the Hague Convention IV of 1907, Article 3: "Art. 3. The armed forces of the belligerent parties may consist of combatants and non-combatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war." This definition of armed forces as including both "combatants and non-combatants" reflected the changing nature of armies as they moved from relying on camp followers to integrating logistics into their structure.

    One thing that is readily obvious is that "non-combatants" isn't being used to mean "civilians." Less obvious is that it is being used more broadly than we contemporarily use it when considering military "non-combatants;" it doesn't include just medics and clergy, but also cooks and blacksmiths and anybody else who is a member of the belligerent armed forces who isn't employed as a fighter.

    A look at just the first thirteen articles of the 1907 annex gives the qualifications of belligerents (those allowed to fight), defines who is entitled to claim the protected status of "prisoner of war," and shows how they are to be treated.

    ANNEX TO THE CONVENTION

    REGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND

    SECTION I - ON BELLIGERENTS

    CHAPTER I - The qualifications of belligerents

    Article 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
    1. To be commanded by a person responsible for his subordinates;
    2. To have a fixed distinctive emblem recognizable at a distance;
    3. To carry arms openly; and
    4. To conduct their operations in accordance with the laws and customs of war.
    In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

    Art. 2. The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.

    Art. 3. The armed forces of the belligerent parties may consist of combatants and non-combatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war.

    CHAPTER II - Prisoners of war

    Art. 4. Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them. They must be humanely treated. All their personal belongings, except arms, horses, and military papers, remain their property.

    Art. 5. Prisoners of war may be interned in a town, fortress, camp, or other place, and bound not to go beyond certain fixed limits; but they cannot be confined except as in indispensable measure of safety and only while the circumstances which necessitate the measure continue to exist.

    Art. 6. The State may utilize the labour of prisoners of war according to their rank and aptitude, officers excepted. The tasks shall not be excessive and shall have no connection with the operations of the war. Prisoners may be authorized to work for the public service, for private persons, or on their own account. Work done for the State is paid for at the rates in force for work of a similar kind done by soldiers of the national army, or, if there are none in force, at a rate according to the work executed. When the work is for other branches of the public service or for private persons the conditions are settled in agreement with the military authorities. The wages of the prisoners shall go towards improving their position, and the balance shall be paid them on their release, after deducting the cost of their maintenance.

    Art. 7. The Government into whose hands prisoners of war have fallen is charged with their maintenance. In the absence of a special agreement between the belligerents, prisoners of war shall be treated as regards board, lodging, and clothing on the same footing as the troops of the Government who captured them.

    Art. 8. Prisoners of war shall be subject to the laws, regulations, and orders in force in the army of the State in whose power they are. Any act of insubordination justifies the adoption towards them of such measures of severity as may be considered necessary. Escaped prisoners who are retaken before being able to rejoin their own army or before leaving the territory occupied by the army which captured them are liable to disciplinary punishment. Prisoners who, after succeeding in escaping, are again taken prisoners, are not liable to any punishment on account of the previous flight.

    Art. 9. Every prisoner of war is bound to give, if he is questioned on the subject, his true name and rank, and if he infringes this rule, he is liable to have the advantages given to prisoners of his class curtailed.

    Art. 10. Prisoners of war may be set at liberty on parole if the laws of their country allow, and, in such cases, they are bound, on their personal honour, scrupulously to fulfil, both towards their own Government and the Government by whom they were made prisoners, the engagements they have contracted. In such cases their own Government is bound neither to require of nor accept from them any service incompatible with the parole given.

    Art. 11. A prisoner of war cannot be compelled to accept his liberty on parole; similarly the hostile Government is not obliged to accede to the request of the prisoner to be set at liberty on parole.

    Art. 12. Prisoners of war liberated on parole and recaptured bearing arms against the Government to whom they had pledged their honour, or against the allies of that Government, forfeit their right to be treated as prisoners of war, and can be brought before the courts.

    Art. 13. Individuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters, sutlers and contractors, who fall into the enemy's hands and whom the latter thinks expedient to detain, are entitled to be treated as prisoners of war, provided they are in possession of a certificate from the military authorities of the army which they were accompanying.

    That shows that prisoner of war (POW) status is a very special protected class, one that levies more proactive obligations on the parties than for almost any other protected class. The short version is that POWs are not criminals and are not to be treated as criminals; they are to be treated as well as, if not better than, the members of their captor's armed forces; and they are detained only to keep them from further participation in the ongoing hostilities.

    The Geneva Conventions of 1929 and 1949 concerning POWs did not essentially change the basic definition of either armed forces or those who are entitled to POW status [2], nor did they define "combatant." But in 1977, "combatant" was defined in Article 43 of Protocol I [emphasis added]:

    Article 43 -- Armed forces

    1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, ' inter alia ', shall enforce compliance with the rules of international law applicable in armed conflict.

    2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

    3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

    At the same time, Article 44 of Protocol I relaxed the requirements of the previous definitions of "armed forces" by eliminating the need for some forces to have uniforms or any "fixed distinctive sign recognizable at a distance" [emphasis added]:
    Article 44 -- Combatants and prisoners of war

    1. Any combatant, as defined in Article 43 , who falls into the power of an adverse Party shall be a prisoner of war.

    2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.

    3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. 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:

      (a) during each military engagement, and

      (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

    Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph1(c).

    4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.

    5. Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities.

    6. This Article is without prejudice to the right of any person to be a prisoner of war pursuant to Article 4 of the Third Convention.

    7. This Article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict.

    8. In addition to the categories of persons mentioned in Article 13 of the First and Second Conventions, all members of the armed forces of a Party to the conflict, as defined in Article 43 of this Protocol, shall be entitled to protection under those Conventions if they are wounded or sick or, in the case of the Second Convention, shipwrecked at sea or in other waters.

    The Bush administration didn't invent the concept of "unlawful combatants;" Protocol I, Article 43 did when it provided a legal definition of "combatants." The Protocol's definition of combatants hinges upon the nature of the organization to which they belong, and it is that which creates a distinction between lawful and unlawful combatants. Members of organizations that do not qualify as "armed forces" under Paragraph 1 are not legally or lawfully combatants under Protocol I.

    That distinction didn't mean very much to the US prior to September 11, 2001. Before then, the US generally used the military to conduct armed conflicts and law enforcement to apprehend terrorists. People captured by the military during the former (such as the 1991 Gulf War) had the status of prisoners of war, while the latter (directly caught by the FBI or brought into US custody through extradition) had the status of criminals. One exception might be Noriega, but his status under an unrecognized claim of sovereign immunity as a former head of state just confuses the issue even more [3].

    I doubt anyone seriously believes that Al Qaeda in Afghanistan could have been tackled by a bunch of FBI agents with arrest warrants. It's a job for the military and it is an armed conflict. Unfortunately, the common usage of "combatants" to mean "fighters," and "not combatants" being too easily confused with "non-combatants" (non-fighters), does not leave a lot choice for terms to describe people who illegally "participate directly in hostilities" and get captured by the military. "Unlawful combatants" fits.

    There is also the Article 44, Paragraph 4, stipulation that a person who fails to meet the combatant requirements of paragraph 3 "shall forfeit his right to be a prisoner of war." There is no good term for "forfeiter of POW status," but, again, "unlawful combatant" fits.

    Even more in line with the concept of "unlawful combatants" is Article 47 of Protocol I:

    Art 47. Mercenaries

    1. A mercenary shall not have the right to be a combatant or a prisoner of war.

    You can't get more straightforward than that. It doesn't matter if a "mercenary" is apprehended by the FBI or captured after a fire-fight by the United States Marines—they aren't combatants and don't get to claim POW status.

    The rest of Article 47 defines who is a mercenary.

    2. A mercenary is any person who:
      (a) is specially recruited locally or abroad in order to fight in an armed conflict;
      (b) does, in fact, take a direct part in the hostilities;
      (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
      (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
      (e) is not a member of the armed forces of a Party to the conflict; and
      (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.
    [Rhetoric aside, members of the US military fighting in Afghanistan, Iraq, or anyplace else under orders, cannot be classified as mercenaries under that definition. Nor can the Iraqi military and militia, including the Feyadeen Saddam.]

    At the beginning I said the people who created this mess had "honorable intentions." The wars of the latter half of the 20th Century were predominately insurgencies and civil wars, and Protocol I's definition of "combatant" was designed to include "guerrilla fighters" in the definition of "armed forces" so long as they complied with the law of armed conflict, which would grant them prisoner of war status upon being captured. The ICRC commentaries on Article 43 and Article 44 explain what happened. From the latter commentary [internal cites removed, minor typos corrected, and emphasis added]:

    Although not explicitly stated, this article is mainly aimed at dealing with combatants using methods of guerrilla warfare. On the modern battlefield, guerrilla warfare is a phenomenon which exists for various reasons, all equally valid, [?] cannot ignore it. Guerrilla fighters will not simply disappear by putting them outside the law applicable in armed conflict, on the basis that they are incapable of complying with the traditional rules of such law. Neither would this encourage them to at least comply with those rules which they are in a position to comply with, as this would not benefit them in any way. The Diplomatic Conference has therefore made an effort to identify this phenomenon and cannot be criticised for so doing. The rules for armed conflict are not static; on the contrary, they must be adapted to a constantly changing world by means of appropriate modifications. This is the specific aim of Article 44, one of the most bitterly disputed articles at the Conference. Almost fifty speakers put their points of view to the Third Committee during the first debate, which took place at the second session. Thirteen amendments were aimed explicitly at modifying the text proposed by the ICRC in Article 42 of its Draft, which dealt with the substance of the present Article 44 as well as with that of Article 43 ('Armed forces') of the Protocol. However, numerous other amendments tried indirectly to achieve the same by virtue of the fact that there is a certain correlation between the various proposals put forward, on the one hand in the ICRC Draft, and on the other by the delegates themselves. The essence of the debate took place at the third session, within the Working Group of Committee III. After a month of sustained effort, the text of the present Article 44 was finally established. However, it was not until the fourth session that the article was adopted by Committee III with 66 votes in favour, 2 against, and 18 abstentions, before being passed in the final plenary meeting by roll-call, with 73 votes in favour, 1 against, and 21 abstentions. Not surprisingly these votes were followed by numerous explanations of vote. In addition to giving the reasons which had led the various delegations to approve the proposed text -- or, on the other hand, to abstain or even reject it -- these explanations of vote contain in many cases statements on interpretation. Furthermore, many delegations felt obliged to state, either during the plenary meetings or in Committee, that they would not accept reservations to Article 44 by other contracting Parties.

    The text of Article 44 is a compromise, probably the best compromise that could have been achieved at the time. It is aimed at increasing the legal protection of guerrilla fighters as far as possible, and thereby encouraging them to comply with the applicable rules of armed conflict, without at the same time reducing the protection of the civilian population in an unacceptable manner. Whatever the text, one might still consider that, when all is said and done, the protection of the civilian population is not assured unless both Parties to the conflict are genuinely concerned about this.

    But now people are trying to force that new definition of "combatant" to be applied to terrorists who don't wear identifying insignia, don't carry their arms openly, and specifically target and attack civilians as their primary method of conducting hostilities. The commentary gets better…
    Article 44, which is divided into eight paragraphs, deals successively with prisoner-of-war status, compliance with the rules of international law applicable in armed conflict, the obligation for a guerrilla combatant to distinguish himself from the civilian population, the sanction on non-compliance with this obligation, and the scope of the obligation. The provisions of Article 4 of the Third Convention are fully preserved, the wearing of a uniform for members of a regular army is confirmed, and all combatants are guaranteed the benefits of the first and Second Conventions.

    Paragraph 1 -- prisoner-of-war status

    At first sight, this paragraph is perfectly clear. Those combatants complying with the general conditions laid down in Article 43 ('Armed forces'), which gives an overall definition of armed forces, have the right, when captured, to prisoner-of-war status. In reality matters are perhaps not as straightforward as this. It has been said that the problem is no longer one of knowing how to obtain the status of combatant (and prisoner-of-war status). The real problem is probably knowing what to do to avoid forfeiting this status. This risk particularly concerns guerrillas and the requirement of a régime of internal discipline for armed forces to ensure that they comply with the rules of international law applicable in armed conflict (Article 43 -- 'Armed forces,' paragraph 1, second sentence). This expression refers to the rules set forth in international agreements to which the Parties to the conflict are Parties, and the generally recognized principles and rules of international law applicable to armed conflict (Article 2 -- 'Definitions,' subparagraph (b)). This means that these rules must be complied with by the armed forces as such, at the risk of disqualification. As Article 44 is mainly concerned with guerrilla combatants, it is therefore appropriate to devote some attention to this issue in the context of guerrilla warfare. The problem of combatants distinguishing themselves visually is dealt with in paragraphs 3 and 4 of Article 44, while that of individual violations of the rules of armed conflict is dealt with in paragraph 2, so that the subject should be approached with these considerations in mind. However, the problem as a whole must be considered, for if the status of the group is contested, it will be the individuals who will be deprived of combatant or prisoner-of-war status.

    Finally, the Rapporteur in his report points out:

    "Several representatives suggested, for example, that it should be stated clearly that, if a group of combatants announced that it would not respect the laws and in fact consistently violated them, all members of the group should forfeit their right to prisoner-of-war status. Others argued, however, that such behaviour by a group was unlikely given the requirements of Article 41 [probably meant 43 -lp], that we did no[t] need to provide specifically for it, and that in any event, there were other and better methods for punishing and deterring such behaviour and that prisoners of war could, of course, be punished for criminal offences."

    However, this in no way detracts from the fact that armed forces as such must submit to the rules of international law applicable in armed conflict, this being a constitutive condition for the recognition of such forces, within the meaning of Article 43 ('Armed forces').

    The reason the US will not call captured Al Qaeda members and the like, "prisoners of war," is because it would set a precedent that would run up the definition chain in reverse: if they are called "prisoners of war," then they must have been "combatants," which means terrorist groups meet the definition of "armed forces," which means they are organizations that have "a régime of internal discipline for armed forces to ensure that they comply with the rules of international law applicable in armed conflict," which ultimately means they cannot be tried for participating "directly in hostilities." (Besides, the US has never ratified and isn't bound by Protocol I. [4])

    The distinction goes to the nature of the organizations versus the nature of specific acts or individuals. Organizations that attempt to and generally succeed at complying with the basics of the LOAC have the status of "armed forces," even if they commit violations. Organizations that completely reject even the most basic rules have no standing. But, once the issue reached the public sphere, the conclusion pointed out by the Rapporteur was wrong; there is more than one group of "fighters," like Al Qaeda, who have "announced that it would not respect the laws and in fact consistently violated them," yet some of the public, unfamiliar with the Protocol I definitions, thinks they should be called "combatants" and granted "prisoner of war" status.


    [1] 1906: "Several proposals were made after 1864, especially by the International Conferences of the Red Cross Societies, for the revision of the Convention of 1864…In 1906 this conference was organized by the Swiss Government and attended by 35 States. On the basis of proposals submitted to it by the International Committee of the Red Cross the conference adopted the new Convention which replaced the 1864 Convention in the relations between the Contracting States."

    1929: "The Conference convened by the Swiss Federal Council with a view to the revision of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field of 6 July 1906, and the elaboration of a Code relating to Prisoners of War, deliberated at Geneva from 1 - 27 July 1929, on the basis of two draft Conventions which had been examined-and approved by the 10th and 11th International Conferences of the Red Cross."

    1949 (1):"The Geneva Conference of 1929, in its Final Act, expressed the wish that a conference be convened with a view to regulating more comprehensively the use of medical aircraft in time of war and that an exhaustive study be made in order to prepare an international convention regarding the condition and protection of civilians of enemy nationality in the territory of a belligerent or in the territory occupied by a belligerent. In January 1939, the Swiss Federal Council transmitted to all governments preliminary drafts, prepared by the International Committee of the Red Cross, as a basis for a diplomatic conference which was planned to be convened in Geneva early in 1940 but could not take place due to the outbreak of World War II."

    1949 (2): "The Conference convened by the Swiss Federal Council for the purpose of revising: the Geneva Convention of 27 July 1929 for the Relief of the Wounded and Sick in Armies in the Field, the Xth Hague Convention of 18 October 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 6 July 1906, the Geneva Convention of 27 July 1929 relative to the Treatment of Prisoners of War, and to established a Convention for the Protection of Civilian Persons in Time of War, deliberated from 21 April to 12 August 1949, at Geneva, on the basis of the four Draft Conventions examined and approved by the XVIIth international Red Cross Conference held at Stockholm."

    [2] 1929 Convention relative to the Treatment of Prisoners of War, Article 1:

    Article 1. The present Convention shall apply without prejudice to the stipulations of Part VII:
    (1) To all persons referred to in Articles 1, 2 and 3 of the Regulations annexed to the Hague Convention (IV) of 18 October 1907, concerning the Laws and Customs of War on Land, who are captured by the enemy.

    (2) To all persons belonging to the armed forces of belligerents who are captured by the enemy in the course of operations of maritime or aerial war, subject to such exceptions (derogations) as the conditions of such capture render inevitable. Nevertheless these exceptions shall not infringe the fundamental principles of the present Convention; they shall cease from the moment when the captured persons shall have reached a prisoners of war camp.

    1949 Convention (III) relative to the Treatment of Prisoners of War, Article 4:

    Art 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 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.
    [3] Extraterritorial Jurisdiction and Sovereign Immunity On Trial: Noriega, Pinochet, and Milosevic—Trends in Political Accountability and Transnational Criminal Law, by Adam Isaac Hassonseems.

    [4] Never ratified, but complies based on the general US policy to observe signed but unratified treaties.



    Tuesday, April 01, 2003
     
    "Really Shocked … And Awed…" The spin was in even before the ink was dry on Peter Arnett's new contract with The Mirror. In his first column (can't call it an article), Arnett writes [bold added]:
    I am still in shock and awe at being fired. There is enormous sensitivity within the US government to reports coming out from Baghdad.

    They don't want credible news organisations reporting from here because it presents them with enormous problems.

    I reported on the original bombing for NBC and we were half a mile away from those massive explosions. Now I am really shocked that I am no longer reporting this story for the US and awed by the fact that it actually happened.

    That overnight my successful NBC reporting career was turned to ashes. And why

    Because I stated the obvious to Iraqi television; that the US war timetable has fallen by the wayside.

    Bull. We'll get to what really caused NBC to fire him in a moment. First, an example from a different media incident where the spin has become fact for many people.

    Everybody knows that Bill Maher of Politically Incorrect got into trouble for saying the hijackers weren't cowards, right? Just read this paragraph from a recent column by Cynthia Tucker, syndicated columnist from the Atlanta Journal-Constitution:

    Back in October 2001, White House spokesman Ari Fleischer didn't stop at disagreeing with satirist Bill Maher, who suggested the 9/11 terrorists were "not cowards" in their suicide. Instead, Fleischer snapped: "All Americans need to watch what they do, and this is not a time for remarks like that." Coming from the president's spokesman, it was a chilling suggestion of censorship.
    Not quite, Cynthia. Following Dinesh D'Souza's remarks on why the hijackers shouldn't be considered "cowards," Maher just couldn't leave it there, and it was it was this part of his comment that got the folks down home all riled up: "We have been the cowards. Lobbing cruise missiles from 2000 miles away, that's cowardly." It turns out there are lots of people in the US Air Force and Navy (the only two services with cruise missiles), their families, their friends, veterans, and other Americans ('we') that just didn't take kindly to that comment. (Cynthia Tucker also spins the timeframe, it didn't happen in October 2001. The comment was aired on September 17th, one day short of a week after September 11th.)

    It's the same spin technique with Peter Arnett: only use the innocuous part of a statement and then claim that everyone is overreacting to it. He may have been fired by NBC for telling the truth, but he's spinning which part of the truth got him fired. Everything he said about "the US war timetable" would have been alright if he'd been sitting on a weekend talking-head show in the US giving opinion and commentary. Even saying it in the interview on Iraq TV probably wouldn't have gotten him fired.

    What got Arnett fired was telling a truth that can be interpreted as his reason for reporting from Baghdad:

    "Our reports about civilian casualties here, about the resistance of the Iraqi forces, are going back to the US. It helps those who oppose the war when you challenge the policy." [Or…]

    "Our reports about civilian casualties here, about the resistance of the Iraqi forces, are going back to the United States," he said. "It helps those who oppose the war when you challenge the policy to develop their arguments."

    Given Arnett's recent history (his departure from CNN/Time after being reprimanded over the Tailwind story and the complaints about his reporting from the 1991 Gulf War), that statement just makes it too easy for people to believe Arnett is in Baghdad solely to find, tailor and present reports to help the war opposition.

    It doesn't matter whether he was just playing to his hosts, trying to make sure they wouldn't kick him out of Baghdad, while secretly yearning to be able to provide objective reporting (or even being secretly pro-war); the remark is out there and, in the short term, neither spin nor denials will be sufficient to overcome the idea that Arnett is purposely acting as an anti-war (or even a pro-Hussein) propagandist rather than as a reporter.




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