January 18, 2002



Anyway, doctrinally, prisoner collection is not a unit (ie, battalion) level responsibility, anyway. That duty belongs to the brigade MP platoon. All that a unit the size Canada's sending does to anyone who surrenders is put them in a prisoner collection point under a guard, and wait for the MPs to come by and pick them up. Since we will only have one battalion within the American brigade, it's their brigade MP units that will be doing that. Does that count as being "in custody" in any significant way? We're not caring, feeding, taking names, nothing: just making sure they don't run away before the Yanks arrive with the paddy waggon.

We should definitely be assertive about encouraging the Americans to follow the international rules of war if they want our help (and be prepared to do whatever is necessary, even up to walking away, if they don't.) But this isn't about just the "prisoners the Canadians take." It's doubtful anyone will stay in Canadian custody for even 24 hours at any point, regardless of what they have us doing over there.

Posted by BruceR at 04:29 PM



I've got to confess I've never been a fan of Donald Rumsfeld's dissembling at press conferences, and bloggers in general who are backing up on this "unlawful combatants" stuff seem to be on the wrong side of American history and legal precedent, I'm sorry to say.

There is nothing about "using guerrilla tactics," as one blogger put it, that disqualifies one for Geneva Convention protections. Reading the law for both its letter AND its intent, the key distinction in the conventions that separates a "lawful" combatant from an "unlawful" one is the act of carrying arms openly: ie, self-identifying as a soldier rather than retaining one's "deniability" and working as a spy or saboteur. The conventions specifically include all "members of the armed forces of a Party to the conflict." If we accept that the Taliban formed the government of Afghanistan for a time, and that Afghanistan was the other party to this conflict, it thus doesn't matter what the soldiers acting in their name were wearing or how they fought. Even an Al Qaeda terrorist, who would have clearly been an "unlawful combatant" if he had snuck into the US and thrown a bomb as part of the war effort, would still be a "lawful" combatant once he was back with his Al Qaeda unit in Afghanistan fighting the Northern Alliance on the ground. The rules seem quite clear on this. (The other exception would be soldiers who were strictly mercenary, ie did not self-identify themselves with a particular state, but were fighting for the highest bidder in a foreign land. Neither the native Afghans nor the foreign Islamist volunteers really qualify.)

Al Qaeda members could still be subject to prosecutions for war crimes, murder, what have you, through American tribunals or otherwise, but that is separate from their internment as Taliban prisoners of war, which by definition must end when the fighting in Afghanistan has reached a mutually agreed-upon conclusion.

To interpret the law differently would be to fly in the face of the Americans' own experiences with irregular warfare: in the Revolution and the Civil War, among other occasions, where "irregulars" like the Minutemen were not given the same privileges as "regular" combatants, and Americans were outraged about it. (It's infuriating to anyone who remembers American history how Donald Rumsfeld has consistently been cavalier about these sorts of issues, since the war's start; this writer has never shared the almost universal admiration for his plain-talking ways.) Canadians are right to question those rules (even to the point of withdrawing its soldiers if the Americans are confirmed to be flouting international law) and whatever the Red Cross determines in today's meetings (this being their bailiwick and all) should be followed by all parties on the ground. Otherwise, we have met the enemy and he is us.

UPDATE: David Carr on Samizdata is one of those who's got the Geneva definitions of combatants backwards, focussing on whether they meet the intentionally narrowly construed definition of "militia or volunteer corps," ie organized resistance movements (wearing an insignia, etc.). But the Taliban is not necessarily an organized resistance movement. If you accept that they are "members of the armed forces of a Party to the conflict", ie that the Taliban was the de facto (not legitimate, mind you, but de facto) government of Afghanistan on Sept. 11, then their soldiers don't have to meet all those "organized resistance movement" stipulations. Even if you don't, they would still be considered soldiers under paragraph 6 of the same Geneva article, which extends prisoner of war protections to anyone who resists the invasion of their country," provided they carry arms openly and respect the laws and customs of war." It's what Law & Order calls "black-letter law." Until and unless they are identified and indicted for crimes related to terrorism, every Taliban soldier in U.S. custody is a POW under international law. Period. Any other interpretation is Rumsfeldian semantics.

Posted by BruceR at 03:53 PM