by Robert Mackey
A post I did a few days ago on the argument for manned nuclear bombers, much like any freewheeling discussion on most blogs, soon turned to an interesting cul-de-sac of discussion on the nature of warfare, those whose job it is to both fight and conduct warfare (two quite different things), and what defined a combatant and non-combatant. I'd like to address the latter and will discuss the former over the next few days. Comments are always welcome!
The idea of just war, as most of you are well aware, began in the early Christian Era in the West, by old St. Augustine. No need to ride that old pony for much, other than to note that the idea of war for something other than greed is a relatively new concept in human history. Of course, like any other good idea, all it takes are a few greedy men to find the loop holes and discover new and interesting ways of making a pacifistic religion into a tool for conflict (see the Crusades and the Thirty Years War for details).
My doctoral work, along with my first book, The UnCivil War, focused several chapters on the outgrowth of the just war concept--the treatment of captured prisoners of war. In my case studies, I found that officers in the Union Army ran into a very large, and very difficult problem at the beginning of the conflict: What do you do with captured 'unlawful combatants?' Federal troops were capturing guerrillas who ostensibly were part of the defense forces of the Confederacy, but did not possess uniforms, flags, and other accouterments of conventional armies, and tended to fight using the method of the irregular warrior--ambush, hit-and-run raids, and waylaying small groups of stragglers--all of which were anathema to the Union Army leadership. If this sounds familiar to anyone who has happened to keep track of world events since 2001, good for you--it is literally the same problem and issue. How do you define a combatant and a non-combatant?
The solution was found in Lieber's Code, published in the Union Army as General Orders Number 100, in 1863. Francis Lieber was the most famous jurist of his time, and in a letter to General Henry W. Halleck, outlined the concepts of the legality of war, the status of combatants, and the responsibility of a capturing nation to provide for prisoners. Lieber was a Unionist and saw that the Civil War was an illegal war, in the fact that that the Confederate States had no right to secede. Yet, he did not allow that factor to determine the combatant status of the 'detainees.' In fact, he pressured Halleck (and President Lincoln) to treat captured Confederate soldiers as prisoners of war, when under international law and practice of the time they could have been legally executed as rebels. For those of you who dismiss such activities, I'd like to point out the punishments given out to Irish rebels in the uprisings of the same era, by the much more 'civilized' British government, not to mention the British reaction to the Indian Mutiny.
General Orders 100 basically formed the basis of the law of land warfare, and later the Hague and Geneva Conventions. It defined different categories of armed combatants--from legal combatants (uniformed soldiers), legal non-combatants, and a new category of irregular soldiers, the partisan. For those of you who remember old newsreels (or watch the History Channel), you can see partisans operating under the Free French in during the liberation of Paris in 1944. The wearing of an armband depicting the Cross of Loraine and the Tricolor, and the carrying of arms openly, meant that this person was a legal combatant, and eligible for treatment as a POW. Strangely, even some German units recognized this (while others, such as the Waffen SS, would shoot anyone if given the chance, even uniformed Allied POWs, such as the hundreds of captured Americans executed at Malmedy in 1944) and treated them as POWs. The result of Lieber's Code, the idea that a person captured on the battlefield has the right to be protected, brought to an end the ancient practice of enslaving or murdering your captives. This, as much as the concept of Just War, brought some semblance of sanity to the conduct of that most insane human activity, warfare.
Of course, the Bush Administration happily ignored nearly 200 years of jurisprudence on the subject and invented an new category, the "illegal combatant," to allow them to hold "detainees" at GTMO indefinitely. As an aside, I was on the Joint Chiefs of Staff during that time, and gave a copy of my book to one of the Office of Secretary of Defense lawyers working the issue. I don't think it did any good, but we all do what we can at times.
What does any of this do the concept of Just War?
The idea of Just War was based on Christian theology, aimed at ending conflict between Christian states in Europe. Fighting the unbeliever, the infidel, or the sectarian was quite all right under that concept. The rise of liberalism, secularism and popular democracy brought into question the very idea of legal conflict. Men, not gods or their priests, suddenly had the ability and the responsibility to make rational judgments on the idea of what is right or wrong in regards to warfare. While nationalism and imperialism did (and still does) much to encourage conflict between states, rational human beings took a great step forward to maturity by saying "we will not execute those who surrender."
As Guantanamo Bay closes down, let us not forget that these 'detainees' are one of two things--they are either prisoners of war, combatants taken in arms against the United States and its allies, or they are criminals under international law, guilty of crimes against not only the Coalition Forces, but against the nation where they were captured or even against the international community as a whole. If they are the former (POWs) then they must be protected under the Geneva Convention. This means they cannot be tried for 'war crimes' conducted while under arms. They cannot be paraded for public view and humiliation. They cannot be denied their religious practices. They cannot be interrogated after processing and internment. Lastly, they must have a process for repatriation back to their nation of origin.
If they are determined to be criminals--what has been the basic argument of both the Bush and Obama administrations--they must have their day in court. If the crime was against US forces, they must be given the entire body of US laws to protect their individual rights. A right of trial by jury. The right to face their accusers. The responsibility of the government to present clear evidence. The right to appeal and to have adequate counsel. If the crime was committed against or in another country, then that country has the right to try them, just like we would do with any normal crime (e.g., extradition). If the crime was against the international community, then use the Hague Court for the trial.
Regardless, the concept of Lieber's Code still holds true--the capturing nation must guarantee the safety and protection of the captured combatant at all costs. It is the very basis of international law and treaty, and the release of a suspected 'terrorist' is nothing in comparison to the long term loss of one of the few successful safeguards against the horrors of war.