Legality of attack on Usama Bin Laden [Split]

[Fingolfin_Noldor]

So... how should Osama Bin Laden be treated? We all know that he doesn't give a damn about any laws, and any hostages or prisoners he has taken most likely ends up dead, or returned after some exorbitant ransom is returned. So is he a brigand, or an enemy combatant or whatever?

[NecronLord]

So... how should Osama Bin Laden be treated?

I would say 'as a very dangerous international criminal' but really I don't see a problem with ordering soldiers to shoot to kill him; he was believed to be armed and dangerous - sure, capturing him would be nice but it wouldn't justify deaths of soldiers/law enforcement personnel to my mind. Give him a chance to surrender and then go in and get him; if he survives and is wounded, all the better.

[The Duchess of Zeon]

The better strawman is the inherent presumption in the argument against me that Westphalian nation-states based on linguistic and ethnic characteristics are the appropriate means of organizing humanity and fundamentally moral, rather than basically racist in conception.

Moral or not, damned better than the barbarity that existed beforehand. It is quite easy for you, a pampered first world citizen, to go all feudal, but it is completely sociopathic considering that the wars that existed before that treaty wiped out a third of all Germans. Do you really want to make that argument?

No, I was merely pointing out the fallaciousness of any argument claiming the Westphalian system was good for its own sake. As was said in the argument with Bakustra some weeks ago, the success of systems must be judged by actual statistical outcome, not by some idealized system of morality. You can say the Westphalian system is better and it is doubtless statistically true, but it's not good for it's own sake and there's no way you can say that Arabs not being inclined to it is inherently condemnatory of them or racist. Regardless, it requires the consent of the states in it to play by the rules. Osama did not consent to play by those rules and had the resources to be a de facto state actor--with more power and territory arguably under his control than the joke "government" of Somalia we pretend is a national state has, or even some tiny and stable places accorded nation state status like Liechtenstein. We annihilated him to preserve the system of state organization from an attempt to reassert a millet-based or confessional organization of society. That's truly what the War is about--preserving the world state-order of government.

So if your enemy is sinking to a low level, you are absolutely justified to sink to that level as well? What ideals are you defending then?

The land where mountains plunge so beautifully to the sea that it makes me cry to look upon their visage and know I was born there. That is the "ideal" I would defend.

[Alyeska]

The way I see it, Osama is an enemy combatant. You can attempt to capture him, but if he proves to be resistant and deadly, you can kill him. If captured, he is afforded all rights as a POW. If you don't want to treat him as a POW, afford him all rights in a criminal proceeding.

That he was killed after a surrender was demanded, I see nothing wrong with that. He was a valid target to go after for a variety of reasons.

[Simon_Jester]

I'm going to try to keep up with the separate directions I'm being debated from. Thanas first, since he's the grownup.

If that were true, Simon, then you also have to accept that 9/11 was a legitimate target. After all, if the Geneva convention does not apply here and Al-quida has not signed anything, how do you hold them accountable?

The legitimacy of the target hinges on the legitimacy of the war, and the relationship between the war aims of the group and the targets they pick as part of their warfighting.

*snip rest*

This is a huuuge dodge you are making here. You are making the argument that this is a war. You earlier argued that the Geneva convention does not apply here because....al-Quida has not signed anything. Are you now moving away from that argument and are you now arguing that the Geneva convention does indeed apply here?

And I have a huge issue with your argument, because it essentially takes an objective law (You cannot beat prisoners) and makes it into a subjective issue (depending on the circumstances, prisoners may be beaten). Where do you draw the line here?

There are several related points that go into these questions, and I would like to separate them out so that it's clear what I do and do not believe, and about what.

My argument that this is a war is based on empirical factors- how much shooting is going on, how many armed men are needed to maintain order, how much capacity for violence, both latent and real, is at work here? Al Qaeda's terrorist attacks, during their peak years, managed to kill enough civilians from various nations that thinking of them as a serious wartime opponent does not strike me as out of line. There are entire countries that managed to accomplish much less against the US during formal wars than Al Qaeda did by acts of sabotage and hijacking.

There are legalistic senses in which it may or may not be a war- perhaps it is a "police action," or a "peacekeeping action," or an "armed intervention" or a "pacification campaign," or any of a number of other euphemisms.

But I look at the scale of physical damage- the lives lost and property destroyed- by Al Qaeda's efforts. I look at the scale of military forces that has been sent out to Afghanistan to break them up and make them stop doing it, I do not think it is out of line to say that yes, in this practical sense, Al Qaeda has started and is involved in a war- one which is mostly fought in Afghanistan, and to a small covert extent in Pakistan, with occasional forays into other areas.

Does this strike you as unreasonable? If this is not to be called a "war," what is it to be called? The idea of calling it a "police action" or some such strikes me as grotesque. Police work normally doesn't involve infantry divisions or 2000-pound bombs; defeating Al Qaeda in its stronghold did.
_________________

Separate from this, we have my argument regarding the Geneva Conventions. My argument is that the Geneva Conventions really are not written to cover the situation created by Al Qaeda. They are based on the model of a war between nations, in which diplomacy is possible, in which there exist neutral third parties who can check up on the conflict, in which both sides have firm control over large territories in which they are the recognized government. For such purposes, they are a good system of conventions. Following them prevents all kinds of terrible atrocities that would otherwise blacken your nation's memory for decades if not centuries to come.

When dealing with a rival that does not follow the Conventions, one must take a step back and think about what to do. Does one follow the Conventions to the letter? Does one attempt to deter the enemy from committing atrocities by threatening to selectively, or totally, ignore the Conventions? If the Conventions are not applied, what other standards should be applied?

Some parts of the laws of war cannot safely or sensibly be applied to an enemy who routinely violates or ignores them: if you are fighting an enemy who snipes at you from hospital windows, or mounts anti-aircraft guns on the hospital roofs, refraining from firing back at the hospitals becomes impractical very quickly.

Other parts can and should always be applied- the provisions banning genocide or mass deportation of civilians come to mind; you should never be doing that regardless of who you're fighting.

Parts regarding treatment of prisoners are tricky- how do you treat prisoners when fighting someone who refuses to take prisoners, or abuses prisoners horribly? Do you try to make retaliatory threats- "for every one of your captives from my side you kill, I'll kill one of my captives from your side?" Do you just ignore their atrocities as belonging to their conscience while doing your best to treat people you capture decently? How much effort do you put into encouraging your own men to take prisoners, against an opponent who's prone to tricks like false surrenders, when your troops know perfectly well the enemy wouldn't extend them the courtesy of surrender if the tables were turned? That is not an easy thing to convince people of when they're fighting a battle.

I favor decent treatment of prisoners, regardless of circumstances, because it is the decent thing to do: beating a man you've got in a prison camp is simply wrong, and serves no purpose worth serving.

I do not, repeat NOT, favor ignoring all the conventions and laws of war the moment we begin fighting someone who is not signatory to them. But in specific details (none of which justify Guantanamo) it is inevitable that we will have to check, reconsider, and re-evaluate specific provisions that were designed on the assumption that we'd be fighting the organized army of a nation-state that, by and large, honors the same laws of war we do.

This is not because we are fighting a war. Nor is it precluded by the fact that we are fighting a war. It is because we are fighting an unusual war, against an unusual opponent- one who fights dirtier than average and disperses into the general population, but who also blends with the general population in ways that force us to be unusually careful about how we treat our prisoners for fear of abusing innocent people.

This is not what the US is doing, this is what the US bloody well ought to be doing. There is a difference, on which more later.
_________________

On top of this, there is a related issue: the Geneva Convention does not cover everything we need to worry about when dealing with terrorist organizations that operate on the scale of private armies.

During a normal war between nation-states, there is no need to hold trials for the average POW. You know they're a POW because they were captured in battle wearing an enemy uniform. It is very simple, you send them to a POW camp and keep them there. Some day the war will end and you can let them go. Unless there's something very unusual about them, such as suspicion that they're tied to some atrocity, you don't need to worry about anything more than that.

During a war against a large army of loosely associated guerilla and terrorist movements, it's not that easy. You may capture a person without being sure they are one of your enemies, or find them doing something suspicious but not itself proof that they're one of the enemy. You may not be sure which of the AK-toting men you captured are involved in terrorist attacks you wish to punish specifically, and which of them are simply fighting you because you invaded their country and they want you to go away. It becomes very complicated.

If we simply treat people captured in a place like Afghanistan as POWs, we have extra problems that don't come up in a normal war. Some of the people we've scooped up weren't enemy troops at all; no sense holding Abdul the Farmer in a POW camp. Others, possibly a significant fraction, are personally involved in things like terror attacks against civilians (car bombings in their country, if not long range attacks in ours), and we would reasonably want to punish them separately.

This puts an extra burden of complexity on the system, something we simply do not have good precedents for because in that respect the US invasion of Afghanistan and pursuit of Al-Qaeda is unlike other wars in the past. What should you do, when you're fighting someone too powerful to be dealt with by normal police tactics? But who, unlike ordinary armies, doesn't wear uniforms, forcing you to stop and double-check that the people you captured on suspicion of being guerillas or terrorists really are? And who, unlike ordinary armies, harbors large numbers of individuals mixed in with the rest who are reasonably suspected of criminal acts (like car bombings in market squares) and who should be punished separately?

It can, and should, get quite complicated.

Unfortunately, the US chose the simple but dirty road of ignoring the problem and doing whatever it pleased rather than trying to set some kind of precedent that people later on would actually want to follow. This is not something I'm proud of.

---

I would argue that we are bound, by custom if not by law, to abide by some reasonable and fair standard of prisoner treatment.

Clearly the USA does not feel that way Given that they invented Guantanamo Bay, would you feel that potential enemies of the USA are justified in treating US targets they captured the same way?

I wouldn't be at all surprised, or particularly dismayed, if they did. In Iraq the guerillas were sawing people's heads off on TV fairly early on. I doubt US troops captured by guerillas in Afghanistan could look forward to gentle treatment regardless of conditions at Guantanamo, since nobody else whose men were captured by Afghan guerillas ever could.

I'm not sure I'd call it "justified," but I wouldn't complain, which I suppose amounts to the same thing. It would hardly be the first time the US fought someone who saw no reason to treat American captives in a decent fashion and didn't expect the US to treat their captives in a decent fashion. The entire Pacific War against Japan was fought that way, and it was one hell of an ugly war.

I am very disappointed that the US seems to have found itself another such war, and worse yet seems to be provoking such a war by random and gratuitous abuse of prisoners.

If we are engaged in a police action there might be... but, Al Qaeda is too big and powerful for normal police practices to be applied, as anyone with a gram of sense knows from taking a casual glance at the realities.

According to you, the entire German legal establishment and all German courts do not have a gram of sense. Quite a proclamation.

Excuse me. Let me clarify. I think there has been a misunderstanding. Do you refer to judgments by the German legal establishment to the effect that Al Qaeda agents in Germany should be tried as normal criminals? If so, we are talking about two very different things.

Al Qaeda on its home territory is too big and powerful for normal police practices. You cannot simply call the police, have them walk up to Osama bin Laden's doorstep, and say "you're under arrest," the way you could with, for example, a man who'd been arrested for burglary on the streets of Leipzig. Al Qaeda has too many men with rifles to be dealt with in this way on its home territory.

If we were ever to break up the organization on its home territory, rather than merely breaking up Al Qaeda cells in other countries, military action was necessary. And this action would have to proceed according to the methods of war, not the methods of police investigation, at least up until the time to try prisoners and identify which ones are terrorists and which are simply ordinary guerilla fighters. Past that point, yes, the tactics of law enforcement become more relevant... but not until you have the people you want safely in captivity, where you have the luxury of taking their time to deal with them and don't have to worry about them shooting back.

In Germany proper, matters are quite different- there, you would be dealing only with small Al Qaeda cells who can be arrested the same way you'd arrest a gang of burglars.

Dealing with Al Qaeda on your home territory is very different from dealing with them on theirs. For the former, yes, it is reasonable for the courts to deal with them like any other criminals.

Since the matter under discussion was how to deal with Al Qaeda in their own core territory, where they have most of the riflemen and the writ of a western nation's law matters very little, I was not talking about dealing with Al Qaeda in Germany.

I was talking about dealing with them in Pakistan and Afghanistan, where you do, unavoidably, need a 'police force' that is equipped like an army in order to deal with them.

Thinking of him as a private individual with a large following, large enough that he personally can interact with states on peer-to-peer terms- the practical equivalent of a major African warlord whose power rivals that of "his" government, say- makes a lot more sense to me.

And said warlords are still treated as criminals when they are brought to justice. Your analogy fails on that point.

Yes- but not before they are captured. Capturing a man who has his own army is an entirely different problem, a more difficult one, that requires a lot more use of force, which I've been talking about this whole time since this tangent kicked off with absurd crap like Metahive's "he was a civilian and he was deliberately targeted."

It's not really a "feudal" struggle because our side of the war is modern and not medieval, and because bin Laden's side isn't formally organized into a feudal structure. But that doesn't mean it's appropriate to interpret bin Laden as just another random private citizen given how large his personal power base was.

Legally, he is either a criminal or an enemy combatant, the former who is tried in courts and the latter who is a potential legal target in a war. There is no difference here. One cannot be "a bit criminal" or "a bit combatant".

I'd argue for "enemy combatant," because he personally controlled a large enough force to start a war with the US and assorted other countries, albeit a very asymmetric war in which he had to go underground to avoid manhunts very quickly.

But, again, this is predicated on the idea that yes, a private individual with a large armed following can wage a war. Which I believe, but some others on this threat (like Metahive) seem reluctant to accept.

Against a force of armed men the size of an army, with a strong territorial base in a remote part of the world where the people are tied to them by strong cultural bonds, that breaks down. We could not have, could never have, sent Interpol to arrest bin Laden.

It seems to me that forces like the Gendarmerie or GSG9 would have been able to accomplish that task.

I very much doubt the German Gendarmerie had the numbers or armament to gain access to bin Laden against the wishes of the nation harboring him. GSG9- well. If they could have done it, I have to wonder why they didn't try.

But just to be clear, is your argument that German gendarmes or specialist counterterrorism units could have captured Osama bin Laden and brought him back for trial against his will? If so, at what time since 9/11 could they have done this? And why did they not do so?

I find this an extremely dubious claim on your part.

If we're going to oppose such a force at all, if we're not just going to sit back and let them do as they please*, then we are forced to relax our observance of the formalities, because the rules that work for arresting an individual criminal do not work for arresting an army.

Try them or treat them as POWs. I do not see why there should be a third option, especially not one that only favors one side and which has no legal precedent.

What do you do when the criminals in need of trial and punishment for crimes are mixed with the honest guerillas, and both are mixed in with innocent people who got caught up in the confusion?

I think we do need to work out a new precedent, probably involving some kind of systematic massed-trial procedure on the spot to sort out the innocent people, followed by more detailed investigation to sort out the actual terrorists and try to get access to what they know.

[Enigma]

Here's an expanded article that fleshes out the OP and makes it clear that it was a kill\capture mission but that the troops involved knew that OBL would put up a fight.

By Mark Hosenball

WASHINGTON | Mon May 2, 2011 1:10pm EDT

WASHINGTON (Reuters) - U.S. special forces set out to kill Osama bin Laden and dump his body in the sea to make it harder for the al Qaeda founder to become a martyr, U.S. national security officials told Reuters on Monday.

"This was a kill operation," one of the officials said.

"If he had waved a white flag of surrender, he would have been taken alive," the official added. But the operating assumption among the U.S. raiders was that bin Laden would put up a fight -- which he did.

Bin Laden "participated" in a firefight between the U.S. commandos and residents of the fortified mansion near the Pakistani capital Islamabad where he had been hiding, the official said.

The official would not explicitly say whether bin Laden fired on the Americans, but confirmed that during the course of the 40-minute operation the U.S. team shot bin Laden in the head.

Three other men and a woman, who U.S. officials said was used as a human shield, lay dead after the raid, but no Americans were killed.

A senior Obama administration official said the commandos knew that bin Laden probably would be killed rather than captured.

"U.S. forces are never in a position to kill if there is a way to accept surrender consistent with the ROE (rules of engagement). That said, I think there was broad recognition that it was likely to end in a kill," the administration official said.

The operation was carried out by a team of about 15 special forces operatives -- most, if not all, U.S. Navy Seals, according to U.S. officials familiar with the details. They indicated the team was based in Afghanistan.

One official said it included forensic specialists whose job was to collect evidence proving that bin Laden was caught in the raid and intelligence that might be useful in tracking down other al Qaeda leaders or foiling ongoing plots.

It was done so that bin Laden's dead body would not become a symbol of veneration or inspiration for would-be militants, U.S. officials said.

"You wouldn't want to leave him so that his body could become a shrine," one of the officials said.

CIA WAS CONFIDENT

U.S. officials said the key information that eventually led to bin Laden's trail came from questioning of militants detained by U.S. forces following the Sept 11, 2001 attacks on New York and Washington.

Captured militants, including some held at the U.S. military prison at Guantanamo Bay in Cuba, told intelligence officials of a particular al Qaeda "courier" whom they had heard was close to bin Laden.

They also mentioned two captured al Qaeda operations chiefs, including Khalid Sheikh Mohammed, widely believed to have masterminded the attacks.

Initially U.S. intelligence did not know either the name or whereabouts of the courier. But officials said that about four years ago, U.S. agencies learned the individual's name.

Two years ago, U.S. intelligence received credible information indicating that the courier and his brother, another suspected militant operative, were operating somewhere near Islamabad.

Then, last August, the U.S. pinpointed the compound in Abbotabad where intelligence indicated the two brothers, their families, and a third large family were living.

It was located in a ritzy neighborhood at the end of a dirt road, not far from one of Pakistan's principal military academy. Other residents of the area included retired Pakistani military officers.

Working with the National Geospatial-Intelligence Agency (NGA), which analyzes pictures from spy satellites and aircraft, and the National Security Agency, which conducts electronic eavesdropping, the CIA concluded that the compound was built with unusual security features -- including high-walls topped with barbed-wire -- and that its inhabitants appeared to take unusual security precautions.

By earlier this year, the CIA believed that it had "high confidence" that a "high-value" al Qaeda target was at the Abbotabad compound, and a strong probability that this target was bin Laden.

But one official said the agency was never "100 percent certain" that bin Laden was the one who was hiding out.

(Additional reporting by Alister Bull; Editing by Warren Strobel and Paul Simao)

[Havok]

So it seems that the problem is how do you define an organization that has no effective 'country' or 'people', yet has openly, as a military organization, and to a man, declared war on a group of people that do have a country and uses non traditional methods to carry out it's attacks?

[The Duchess of Zeon]

Yes, Havok--and my proposed solution is that we just treat Osama bin Laden as the holder of al-Qaeda's Sovereignty, in the sense of the sovereign powers which in a Westphalian state are exercised by the government apparatus. It has historical precedent, and it allows us to define enemy combatants as people who have taken an oath of loyalty to Osama or his officers and who bear arms in his service (or now, the service of his successor). People associated with al-Qaeda not involved in combat operations can be considered enemy civilians and therefore can be subject to detention in the same way enemy nationals in every nation of the world in WW1 and WW2 that were involved in those conflicts were detained until repatriated, or simply detained full stop. The conditions of their being detained are another matter entirely and not really a subject of this discussion.

[The Duchess of Zeon]

There's no point in participating in a thread that Bakustra is shitting his brain out into, and I'm a damned fool for trying. Good-day.

[Metahive]

What annoys me that certain people here wish to both uplift Al-Quaeda to a certain "exalted" legal status that enables them to declare war upon nation states while at the same time trying to assign them the status of outlaws who don't have any legal rights whatsoever. Trying to eat their cakes and have them too, Al-Quaeda and all of its members are a legitimate military targets because they "declared war" and at the same time can not hope to claim any sort of legal protection for themselves that would come in unison with the status of warring party because they're really rightless outlaws. Hypocritical much?

[NecronLord]

What annoys me that certain people here wish to both uplift Al-Quaeda to a certain "exalted" legal status that enables them to declare war upon nation states while at the same time trying to assign them the status of outlaws who don't have any legal rights whatsoever. Trying to eat their cakes and have them too, Al-Quaeda and all of its members are a legitimate military target because they "declared war" and at the same time can not hope to claim any sort of legal protection for themselves that would come in unison with the status of warring party because they're really rightless outlaws. Hypocritical much?

Are you sure you're not amalgamating different people? I think the people that are 'uplifting Al-Quaeda' are also the ones who say they should be treated as POWs (which incidentally, would mean eternal imprisonment without trial, as it's unlikely this war on terror will ever actually reach an end).

The ones who are saying they should have no protected status are different people, as far as I can tell.

[K. A. Pital]

Al-Quaeda members definetely should have the same rights as soldiers or commanders. However, one should note that during a war, missions to assasinate enemy officers by special forces units is common practice and not even slightly illegal. One could consider the assasination of Osama and other high-ranking Al-Quaeda commanders an officer hit mission.

[Metahive]

At least Duchess wishes to treat Al-Quaeda like a pseudo-warring party ("feudal body") while at the same time claiming they don't have any of the usual war-time protections because they failed to sign the Geneva Conventions and Simon agrees with Duchess mostly. If I have misunderstood her I apologize, but that's how their posts look like to me.

[NecronLord]

Al-Quaeda members definetely should have the same rights as soldiers or commanders. However, one should note that during a war, missions to assasinate enemy officers by special forces units is common practice and not even slightly illegal. One could consider the assasination of Osama and other high-ranking Al-Quaeda commanders an officer hit mission.

I agree entirely with this, of course. The US would have been much wiser to treat their enemies as prisoners of war from the get go (which, as above, is hardly a picnic) regardless of what they were able to get away with under the regime of international law.

The human rights abuses are utterly pointless as well as evil - I note that Osama's been killed and the supposed nuclear weapon in a European country has not gone off, for example - and POW status gives you a much stronger basis to hold people as long as you wish to and release them at your whim (parole to not fight against you again) if you wish it.

[K. A. Pital]

Failing to sign the Geneva Convention did not relieve a warring party from Geneva Convention rights (see Nuremberg Tribunals) even in the late-1920s version, much more so after it was made explicit during the tribunals and in the later versions of the same in 1949. A signatory has to treat the soldiers of a non-signatory according to GC rules, if we treat the conflict as a formal war.

To add, you can only treat it as a formal war. If you treat it as a law enforcement operation, natural question arise as to why a nation (the US) has the right to conduct law enforcement operations outside of its territory.

[Metahive]

I would have been most surprised if that were not the case.

I've been wondering, the US hasn't been officially "at war" since 1942, every military engagement since then was either UN-backed or fell under the new "Authorization for the president to use military force". Can POWs even be taken when a country doesn't consider itself to be officially at war?

[NecronLord]

At least Duchess wishes to treat Al-Quaeda like a pseudo-warring party ("feudal body") while at the same time claiming they don't have any of the usual war-time protections because they failed to sign the Geneva Conventions and Simon agrees with Duchess mostly. If I have misunderstood her I apologize, but that's how their posts look like to me.

Duchess' argument seems to be that in the abscence of modern state apparatus, the United States should default to treating him in an atavistic and medieval way (IE, a rival noble) and give him all the protections that would accompany that status (IE, victor's whim).

That's a consistant position, albeit one that invites invalidation of all sorts of modern protections and is therefore unworkable and immoral.

Failing to sign the Geneva Convention did not relieve a warring party from Geneva Convention rights (see Nuremberg Tribunals) even in the late-1920s version, much more so after it was made explicit during the tribunals and in the later versions of the same in 1949. A signatory has to treat the soldiers of a non-signatory according to GC rules, if we treat the conflict as a formal war.

This is, of course, correct.

As mentioned above, there are specific ways in which a combatant can lose the protection of the Geneva Conventions, by violating the laws of war. In what Brakustra was saying (that the Allies would have been able to killfuck the Nazis) yes, that's correct, though it only applied to those specific Nazi soldiers who violated the Geneva Conventions.

For example, the British hunted down and excecuted by hanging several SS soldiers and gestapo men who put British POWs to death in contravention of the Geneva Convention; they had personally violated the Laws of War, making them subject to punishment as regular criminals; Hanging.

You are of course correct that merely being a regular soldier of a non-signatory does not mean you are not protected, but that protection is contingent on their acting in accordance with the conventions themselves. It would of course, be sensible, moral and even practical to treat the captive Al-Queada fighters in accordance with the Geneva Conventions.

Even if he were considered a Prisoner of War, you could probably assemble a case against Bin Laden based on his group's excecution of captives, which presumably he ordered (thus making him a regular murderer under the Geneva Conventions, and liable for punishment by the US), if nothing else.

But oh well, he's dead, and the war goes on.

I would have been most surprised if that were not the case.

I've been wondering, the US hasn't been officially "at war" since 1942, every military engagement since then was either UN-backed or fell under the new "Authorization for the president to use military force". Can POWs even be taken when a country doesn't consider itself to be officially at war?

Yes. The Geneva Convention on POWs is categoric in this:

Art 2. In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

(Other articles extend it to non-signatories in various ways)

[Thanas]

No, I was merely pointing out the fallaciousness of any argument claiming the Westphalian system was good for its own sake. As was said in the argument with Bakustra some weeks ago, the success of systems must be judged by actual statistical outcome, not by some idealized system of morality. You can say the Westphalian system is better and it is doubtless statistically true, but it's not good for it's own sake and there's no way you can say that Arabs not being inclined to it is inherently condemnatory of them or racist. Regardless, it requires the consent of the states in it to play by the rules. Osama did not consent to play by those rules and had the resources to be a de facto state actor--with more power and territory arguably under his control than the joke "government" of Somalia we pretend is a national state has, or even some tiny and stable places accorded nation state status like Liechtenstein. We annihilated him to preserve the system of state organization from an attempt to reassert a millet-based or confessional organization of society. That's truly what the War is about--preserving the world state-order of government.

Osama had more territory than Somalia? Really now? Pray tell, where was his capital? Where was his constitution or other law that governed the home of its citizen? In any case, I reject the notion that there needs to be a third category. Osama should be treated exactly like pirates are treated - as a criminal.

Why should there be a third category, especially one that conveniently leaves out the protections afforded to the guy we hate?

So if your enemy is sinking to a low level, you are absolutely justified to sink to that level as well? What ideals are you defending then?

The land where mountains plunge so beautifully to the sea that it makes me cry to look upon their visage and know I was born there. That is the "ideal" I would defend.

So in short, "my tribe vs your tribe". I give you points for intellectual honesty, but I still find it barbaric because it implies that democracy and all the other good things are just mere bywork.

The way I see it, Osama is an enemy combatant. You can attempt to capture him, but if he proves to be resistant and deadly, you can kill him. If captured, he is afforded all rights as a POW. If you don't want to treat him as a POW, afford him all rights in a criminal proceeding.

That he was killed after a surrender was demanded, I see nothing wrong with that. He was a valid target to go after for a variety of reasons.

Agreed and my position as well.

What annoys me that certain people here wish to both uplift Al-Quaeda to a certain "exalted" legal status that enables them to declare war upon nation states while at the same time trying to assign them the status of outlaws who don't have any legal rights whatsoever. Trying to eat their cakes and have them too, Al-Quaeda and all of its members are a legitimate military targets because they "declared war" and at the same time can not hope to claim any sort of legal protection for themselves that would come in unison with the status of warring party because they're really rightless outlaws. Hypocritical much?

Also agreed and a good summary of my position as well.

My argument that this is a war is based on empirical factors- how much shooting is going on, how many armed men are needed to maintain order, how much capacity for violence, both latent and real, is at work here? Al Qaeda's terrorist attacks, during their peak years, managed to kill enough civilians from various nations that thinking of them as a serious wartime opponent does not strike me as out of line. There are entire countries that managed to accomplish much less against the US during formal wars than Al Qaeda did by acts of sabotage and hijacking.

There are legalistic senses in which it may or may not be a war- perhaps it is a "police action," or a "peacekeeping action," or an "armed intervention" or a "pacification campaign," or any of a number of other euphemisms.

Here is where I beg to differ. It is extremely unimportant for the categorization how much of an effect it has or the scale of it. If I were to poison one man or an entire city, the crime would still be murder. Thus, it is extremely important to note the difference between a war (which would result in POW status) or not (which means bin Laden is a criminal). You may call that legalistic, but it still is an important distinction and one which always was the difference.

You may also say that Al-quida should be treated differently due to its size. What of the various Pirate holdings in the caribbean and asia then? Compared to Al-quida, they actually might have been more disruptive and damaging proportionally. You try to claim that there is no precedence for such actions against terrorists, but there is.

So I doubt the necessity of the third category you seem to be implying here. Especially when it has the very effect Metahive so neatly summarized above.

Separate from this, we have my argument regarding the Geneva Conventions. My argument is that the Geneva Conventions really are not written to cover the situation created by Al Qaeda. They are based on the model of a war between nations, in which diplomacy is possible, in which there exist neutral third parties who can check up on the conflict, in which both sides have firm control over large territories in which they are the recognized government. For such purposes, they are a good system of conventions. Following them prevents all kinds of terrible atrocities that would otherwise blacken your nation's memory for decades if not centuries to come.

They are not. You are really mistaken here. For example, the second protocol, adopted 1977 specifically regulates

all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Now obviously the dispute is what "other organized armed groups" mean. Does Al-quaida fall under that? Maybe (haven't really formed a judgement on that matter and will not do so without a thorough study). However, by its very existence this protocol shows that the Geneva conventions are indeed supposed to cover more than just wars between nation-states.

Some parts of the laws of war cannot safely or sensibly be applied to an enemy who routinely violates or ignores them: if you are fighting an enemy who snipes at you from hospital windows, or mounts anti-aircraft guns on the hospital roofs, refraining from firing back at the hospitals becomes impractical very quickly.

Yes, which is why these are obviously exceptions in limited situations that otherwise do not invalidate the general rules.

I do not, repeat NOT, favor ignoring all the conventions and laws of war the moment we begin fighting someone who is not signatory to them. But in specific details (none of which justify Guantanamo) it is inevitable that we will have to check, reconsider, and re-evaluate specific provisions that were designed on the assumption that we'd be fighting the organized army of a nation-state that, by and large, honors the same laws of war we do.

See above.

On top of this, there is a related issue: the Geneva Convention does not cover everything we need to worry about when dealing with terrorist organizations that operate on the scale of private armies.

I find Protocol II to be quite adequate.

It can, and should, get quite complicated.

Only if you make it so. In my opinion the rule of law is pretty clear - either you treat people like POWs or like criminals. The USA is doing neither.

Al Qaeda on its home territory is too big and powerful for normal police practices. You cannot simply call the police, have them walk up to Osama bin Laden's doorstep, and say "you're under arrest," the way you could with, for example, a man who'd been arrested for burglary on the streets of Leipzig. Al Qaeda has too many men with rifles to be dealt with in this way on its home territory.

Neither could you conveniently just arrest a head of the mafia in sicily. But does that cause Italy to bomb said cities? No, it and other states founded specific police forces that deal with the problem.

Let me make it clear - I have no objection to army forces being used to capture terrorists. I do not have an objection to using the armed forces or police forces that are trained like soldiers for such operations.

What I do object to is cherry-picking whatever suits you best. Like the whole category of "enemy combatant", which not only denies people their fundamental rights they would have as criminals and POWs, but also allows the state actor the luxury to kill whoever he pleases.

Either treat them as criminals or as POWs.

Yes- but not before they are captured.

Why are warlords not treated like criminals before they are captured? Do you think being treated as a criminal precludes a violent form of arrest?

But just to be clear, is your argument that German gendarmes or specialist counterterrorism units could have captured Osama bin Laden and brought him back for trial against his will? If so, at what time since 9/11 could they have done this? And why did they not do so?

No. I find it amazing how that point sailed over your head. You claimed that military action was necessary, that only the military could have carried out such an operation. I posit that as has been shown by their operations in the past, heavily armed and well-trained police forces can do that as well.

[What do you do when the criminals in need of trial and punishment for crimes are mixed with the honest guerillas, and both are mixed in with innocent people who got caught up in the confusion?

The same kind of thing you do in real life and gang warfare - hold a trial to determine the innocent or the guilt. Neither requires modification to the law of war or a new, third designation that only favors the state actor in the conflict.


See also the following quote by Stas Bush, which I included here for the sake of argument:

Failing to sign the Geneva Convention did not relieve a warring party from Geneva Convention rights (see Nuremberg Tribunals) even in the late-1920s version, much more so after it was made explicit during the tribunals and in the later versions of the same in 1949. A signatory has to treat the soldiers of a non-signatory according to GC rules, if we treat the conflict as a formal war.

[K. A. Pital]

Yes, the US has not been officially at war since 1942, however, it took POWs in most conflicts (Korea, Vietnam, Iraq). Taking POWs is not relevant to the official declaration of war against a nation.

To make the above point more clear (about "not being a party to the GC" bullshit):

The argument in defence of the charge with regard to the murder and ill-treatment of Soviet prisoners of war, that the USSR was not a party to the Geneva Convention, is quite without foundation...

In ruling as it did, the Tribunal must be taken to have overruled the submission of the defence that in withdrawing from the Geneva Convention a state relinquished all rights even under customary international law, which is codified in the Convention

So the GC is a formalization of international law which remains active even when a party has withdrawn from the GC or never signed it in the first place.

I believe I shouldn't explain why this happened. The Nazis basically justified their genocide in the East by claiming the USSR relinquished any rights to humane treatment of prisoners simpy because it wasn't a party to the GC. As one can see, this arm-twisting didn't fly (for many reasons, one of them is especially funny: when Germans translated the GC into German, they explicitly ruled out the interpretation that created some ambigiousness in English ("as between parties thereto"), instead stating simply the GC is obligatory FOR all regardless, the other being of course that Germans themselves and the Italians prior to 1941 preferred to apply the GC to non-signatories )

[Metahive]

So there's really no legal reason to not treat captured AlQ operatives as POWs should the US wish to do so, I figured that. Of course, POWs can't be thrown into some dungeon and then tortured for information and criminals have to be put on trial at the earliest time possible (real trials, not military kangaroo courts) and it seems the US for whatever reason find that to be a bothersome hindrance in their struggle against an abstract concept.

[Broomstick]

They also didn't actually target for as many casualties as they could, they targeted symbols of American wealth and might, rather than going for killing as many people as possible.

Yes, let's just ignore people like Ramzi Yousef who is on record as stating that he hoped to kill 50,000 people with the 1993 World Trade Center bombing, and that he hoped to kill 250,000 Americans to somehow show them the same pain as that inflicted by the Hiroshima and Nagasaki atomic bombings (as if Americans are somehow unaware of this – it is routine for US school children to be shown very graphic photos of the effects of those bombs, and we are told over and over how horrible they were, to the point that other horrors we inflicted on people in WWII are ignored). As if some self proclaimed terrorist from the Middle East had any business inflicting revenge on behalf of the Japanese.

By the way – the 1993 WTC bombers were arrested and tried as civilian criminals, not enemy combatants. Yousef is currently serving a life sentence for his role in that bombing. (He also has another life sentence in connection with a bomb that exploded on a Philippines Airlines flight to Tokyo. Ironically, given that he justified killing American civilians as revenge for killing Japanese, the only fatality on that flight was a Japanese businessman)

Oh, wait, but it's even worse for you. The attack was timed to maximize casualties. Even assuming that their pilots couldn't fly at night, I find it hard to believe there weren't suitable flights for attacking the towers at, say, dinner time.

The pilots were quite capable of flying at night. Learning to fly at night is required of student pilots in the US prior to taking one's flight test for a license. (Since that time, there was a new rank of pilot's license created that doesn't require it, but that would not apply at the time of the 2001 attacks.)

Once the courses were locked in and it was too late for an interception by American fighter jets, a radio broadcast (say, 15 minutes before?) would have saved many lives at relatively minimal effort and risk (compared to informing the Japanese government where to position their antiaircraft units).

15 minutes would have been about right – general consensus (because you know the military won't release an exact figure) is that it takes about 15 minutes to scramble jets. Then you need them to catch up to the hijacked jets... hmmm, even 30 minutes warning likely wouldn't have been enough time to shoot down the jets (which may not be a good idea over densely inhabited areas, anyway, because the pieces will fall on something). It would have been enough time to get more people out of the building, including the disabled who weren't able to negotiate the stairs. Even 15 minutes would have allowed evacuation by elevator of those in wheelchairs, and enough time to empty the upper floors and save the lives of those who wound up having to jump from the upper floors and wind up broken, bloody piles on the sidewalk.

Just as well the hijackers didn't realize that that Tuesday was a voting day in New York City – a lot of people were stopping at the polls on their way to work, so the buildings that morning actually had fewer people in them than they normally would have at that time. No, they wanted to kill people, that was the point of their exercise, and destroying the two tallest buildings in New York City was just the means to that end. It was never about the buildings, it was about the people.

[Broomstick]

The WTC is an "entirely civilian target"? Sorry, but if factories are industrial targets that can be bombed during strategic bombing campaings, office critter skyscrapers with company headquarters are likewise acceptable targets for such campaigns. Especially if your means are limited.

Stas, you make a valid point on one level, but we have plenty of statements from World Trade Center bombers and their associates that at least part of the goal, if not the major goal, was to kill people. Blowing up a large building is, of course, a means to that end. Sure, there's both economic and symbolic importance there as well, but the WTC wasn't blown up because it was a beloved symbol or a landmark or a corporate headquarters, it was blown up because it was two very large buildings presumably full of people.

Sure, the attack on the WTC is less obvious as a military target compared to, say, the Pentagon, which was also attacked, but a case can be made if you were arguing from total war. After all, the WTC is not a kindergarten, right?

People don't drumbeat about the Pentagon getting hit because, as you say, it is seen as a legitimate military target (nevermind that is mostly a glorified office building, it's a military office building). That is, of course, why considerable sums have been spent on things like bomb mitigation and security for it. Allegedly, the Flight 93 was headed for the US Capitol, or maybe the White House – those are certainly symbolic of US national power and the government. Again, both are arguably a legitimate target if you're attacking the US (which is not to say Americans would in any way approve or be happy about that). The WTC was neither military nor government, and in that sense was definitely civilian. As pointed out the point of targeting them was to kill a lot of people, not so much to strike at a symbol, which would have been, at best, a secondary goal.

Do you even understand how many people would have died in a conventional war with Japan having such a mind set?

Alternatively, the US could have just avoided invading Japan, leaving it in a blockade to collapse on itself. Sure, it would turn the remains of Imperial Japan into a crippled nation. Perhaps you could argue that this or that would be a better outcome in the long run and try and weigh it against the lives lost.

Except that's not what would have happened. If the US had simply blockaded then the Soviets would have moved in. They were making invasion plans. Japan would have been a Soviet possession instead of a US one. Somehow, I don't think the Soviets would have been any kinder to the Japanese than we were. Well, I suppose the US could have fought the invading Soviets while attempting to maintain the blockade, but that certainly wouldn't have resulted in a quicker end to hostilities, would it?

To me this discussion seems a pointless waste of time. Terrorism is a weapon of the weak. If Al-Quaeda controlled a superpower, it would obviously use more conventional weapons if it decided to go to war with America. Cruise missiles, tanks, ICBMs. They would attack industrial targets to cripple America and then use conventional forces to occupy the nation. They don't have these resources, so terrorism remains the only option.

This is sound reasoning.

One can argue that these attacks are entirely illegitimate because they break the laws of war, but the reality is such that weak groups that have no chance in a formal war can be more than successful with terrorism; simply calling it "illegitimate" will not make terrorism vanish, because terrorism is produced by fundamental factors, and those factors can't be changed by killing people and capturing "masterminds" somewhere in remote regions. These factors are backwardness, lack of education, poverty and suffering around people, religious indocrination.

Alas, no one has a good answer for solving those problems. Also, I would argue that backward, uneducated, poor, suffering people will not get the change they want by stabbing the toes of a giant, either.

[Broomstick]

Al-Quaeda members definetely should have the same rights as soldiers or commanders. However, one should note that during a war, missions to assasinate enemy officers by special forces units is common practice and not even slightly illegal. One could consider the assasination of Osama and other high-ranking Al-Quaeda commanders an officer hit mission.

I agree entirely with this, of course. The US would have been much wiser to treat their enemies as prisoners of war from the get go (which, as above, is hardly a picnic) regardless of what they were able to get away with under the regime of international law.

The human rights abuses are utterly pointless as well as evil - I note that Osama's been killed and the supposed nuclear weapon in a European country has not gone off, for example - and POW status gives you a much stronger basis to hold people as long as you wish to and release them at your whim (parole to not fight against you again) if you wish it.

The problem is (and I admit I'm venturing into opinion here and not hard fact) is that the guys in power in the US during 9/11 were after revenge, not fair play or ethics.

For the most part during WWII the US treated enemy POW's pretty decently. (I am well aware there exceptions, but they were exceptions, not general practice). Americans are certainly capable of behaving decently. The 1993 WTC bombers were held as criminals and treated in accordance with standard practices regarding such which, while not wonderful or luxurious, does not constitute torture or mistreatment. While there is certainly a subset of the population that feels justified in being monsters (hence some of the exceptions to decent treatment during WWII) the situation at Gitmo really is the fault of the administration in power at the time. If the US government had said “we think these people are scum but we're taking the high road and will treatment them humanely, in accordance with the Geneva conventions” (or in accordance with legal treatment of criminals) then it would have happened that way. Gitmo and torture were the decision of those in power at the time, not obligations. The only thing that “forced” the administration's hands were their own moral and ethical failings.

Even if we had decided to house “enemy combatants” at Gitmo in a hypothetical alternative history we still could have treated them humanely and not tortured them. We should have declared them actual prisoners of war (which would have left some messy legal questions regarding length of captivity and, if/when they were released, where they would be repatriated to, but wars are messy anyhow. Some sort of solution would have been found). Or, if we decided they were criminals, tried them in a court of law of some sort. But we didn't. And now that the years have passed we have an even bigger mess that the men who created it have left for others to clean up. Some people grabbed and transported to Gitmo who may not, at the time, have had a particularly deep-seated hatred and loathing for the US (innocents swept up, people fighting the US because they perceived us as invaders, not because they were Al Qaeda or Taliban ideologically) after being held, tortured, and held some more are now our genuine enemas, and with good reason. Gitmo created enemies that didn't exist before.

The Bush administration was blinded by ideology and desire for revenge more than an actual wish to solve the problem and end the conflict. It was certainly not our proudest moment, indeed, much of what has happened during the so-called War on Terror is horribly shameful. Even the name is ridiculous – one can't declare war on a concept, only against other people. Right when they started saying that I knew we'd gone off the rails – but I guess “War against Al Qaeda” would have been too limiting or something.

[Broomstick]

So there's really no legal reason to not treat captured AlQ operatives as POWs should the US wish to do so, I figured that. Of course, POWs can't be thrown into some dungeon and then tortured for information...

Well, actually they can be, it's just not right and the reason we have things like the Geneva Convention.

.... and criminals have to be put on trial at the earliest time possible (real trials, not military kangaroo courts)...

In the US, it can and frequently does take years for criminal cases to reach trial. So "earliest time possible" may not be very quick by the standards of other nations. Personally, I think that to be a travesty but I state this not in defense of the practice but merely to inform others of the fact.

However, it is entirely illegal in the US to torture or mistreat a criminal awaiting trial, no matter how many years it takes to bring it before the judge and jury. It is also illegal to deny a prisoner access to his (or her) lawyer, and so forth. Also, in prior conflicts it has been US practice to allow POW's to communicate with family (even if that's just "hi, I'm alive and being held in the US") so keeping "War on Terror" suspects completely incommunicado is at odds with precendent.

... and it seems the US for whatever reason find that to be a bothersome hindrance in their struggle against an abstract concept.

True.

Which is why I haven't felt particularly good about my country for awhile.

[K. A. Pital]

Americans are certainly capable of behaving decently. The 1993 WTC bombers were held as criminals and treated in accordance with standard practices regarding such which, while not wonderful or luxurious, does not constitute torture or mistreatment.

Indeed. Besides, the questions on the length of detention of POWs and similar legal issues can be resolved. Any captured combatant would hold some citizenship, which automatically creates a repatriation possibility. Length of capture can be determined as long enough until the cessation of terrorist activity in targeted nations (e.g. Afghanistan, Pakistan, etc.).