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"(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." would apply, as Section 3 recognizes non-international conflicts between two parties. Granted, though, the US-Terrorist relationship is a bit cloudy. Currently the US is claiming they qualify as hostis humanis generis but then overlook that crimes in that category, while they do usually result in executions, still require public trials. The days of hanging them from the yard arm, as it were, have been over a long time.

Armed forces is active duty
Militia = National Guards
Volunteer Corp = Peace Corp being an example if they so choose to assist the arm forces

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Jihadin wrote:
Armed forces is active duty
Militia = National Guards
Volunteer Corp = Peace Corp being an example if they so choose to assist the arm forces

Broadly speaking, in the case of the United States Military, the first two are correct, mostly (we won't get into the National Guard = Militia under the law or not debate, it's stupid and largely circular on both sides). The last one, however, is a bit vague and all encompassing due to the sheer number of military organizations and accepted practices that they tried to encompass.

Remember that many of our currently imprisoned 'illegal combatants' would qualify as militia or volunteers, as written, as many were attached to the regular army of the former Taliban government of Afghanistan, despite their Al Qaeda affiliations. Being they were not working for pay, and thus not mercenaries. However, 'insignia' is an issue, as previous to modernization, what we would recognize as insignia was not a common practice in the Middle East, with irregular forces still eschewing them in favor of traditional garb.

Well this will probably be interesting to watch...

BaronIveagh wrote:
"(g) Prohibition of Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination. " - Executive Order 11905, Sec. 5

"No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." - Executive Order 12333, Sec 2.11

You realize that the Executive has the power to, without consultation, rescind any Executive Order, yes? Executive Orders are not laws.

BaronIveagh wrote:
"It is especially forbidden * * * to kill or wound treacherously individuals belonging to the hostile nation or army." Hague Convention (this takes some explaining, and is expanded on by the Geneva Conventions to include attacking the enemy in locations where, under the laws of war, they are safe, such as nations not currently engaged in hostilities. It further proscribes acts such as declaring that no prisoners will be taken, and the act of killing those incapable of fighting back.)

In addition, it prohibits a nation from declaring that the rights of a target in such hostilities are null and void. This treaty was ratified by Congress.

Those provisions only apply to lawful combatants, and al-Awlaki was most definitely not a lawful combatant. You might make a case that he was a protected person, but that's far from cut and dry and further entails separate prohibitions. Then, of course, there's the fact that international law has very little in common with national law.

Jihadin wrote:Because Geneva/International/Laws of War doesn't cover Unlawful Combatants

It does to a degree, but only very generally, and without specific mention. Its basically a concept that has been inferred from the Conventions as they stand in an attempt to cover the gaping hole regarding irregular warfare that crosses state boundaries.

dogma wrote:
You realize that the Executive has the power to, without consultation, rescind any Executive Order, yes? Executive Orders are not laws.

No such rescinding has ever taken place. And, actually, yes, they do have full force of law, as they are usually issued in pursuance to acts of Congress wherein the President has been granted discretionary power, or in pursuance of his duties as outlined in the Constitution (as head of the Armed Forces, for example.)

They may be overturned by Congress, or by the Courts, as well. These are, however, rare.

dogma wrote:
Those provisions only apply to lawful combatants, and al-Awlaki was most definitely not a lawful combatant. You might make a case that he was a protected person, but that's far from cut and dry and further entails separate prohibitions. Then, of course, there's the fact that international law has very little in common with national law.

Actually, the Hague Convention does not differentiate between 'lawful' and 'unlawful' combatants. The Geneva Convention is the only one to even vaguely imply there might be more then one type.

BaronIveagh wrote:
No such rescinding has ever taken place.

They don't have to. The Executive can rescind, or ignore, any given order at its discretion because its the Executive to that issues the order.

BaronIveagh wrote:
And, actually, yes, they do have full force of law, as they are usually issued in pursuance to acts of Congress wherein the President has been granted discretionary power, or in pursuance of his duties as outlined in the Constitution (as head of the Armed Forces, for example.)

While they have the full force of law, they are not themselves laws. Laws, at the federal level, may only be passed by Congress. Executive Orders are issued by the Executive branch at their discretion, and it is that discretion which constitutes the force of the Order. What this means is the Executive can order, or authorize, anyone to break an Executive order. By comparison, they cannot (legitimately) order, or authorize, anyone to break a law.

BaronIveagh wrote:
They may be overturned by Congress, or by the Courts, as well. These are, however, rare.

Yes, they may be, but neither Congress nor the Courts has the power to issue, or enforce, Executive Orders. If someone fails to comply with an EO in the absence of authorization the matter is handled by the Executive, not Congress or the Courts. It isn't like stealing from an old lady, its like showing up to work late.

dogma wrote:
Actually, the Hague Convention does not differentiate between 'lawful' and 'unlawful' combatants. The Geneva Convention is the only one to even vaguely imply there might be more then one type.

Yes, and both are taken together as a single body of international law. You'll note my response to another poster in which I noted that the category of "unlawful combatant" is an inferred patchwork designed to overcome a deficiency in the present "legislation". You'll also note where I mentioned that international law, and national law, have very little in common; as the former cannot be read in the same sense as the latter.

National law is fairly rigid, as there is a single prevailing means of enforcement. International law is not, because no such monopoly on the legitimate use of force exists.

Throwing it out there since it hasn't been mention yet. Laws of War This and RoE are followed. There is much more to just the Geneva Convention and Hague.

dogma wrote:
Yes, and both are taken together as a single body of international law. You'll note my response to another poster in which I noted that the category of "unlawful combatant" is an inferred patchwork designed to overcome a deficiency in the present "legislation". You'll also note where I mentioned that international law, and national law, have very little in common; as the former cannot be read in the same sense as the latter.

You'll pardon me if I don't see the lack of an International Treaty providing a category for 'unlawful combatants' as a deficiency. But sadly, i also still subscribe to outmoded ideas like decency, human rights, and the rule of law. All of which the US has been quick to abandon of late in the name of expedience against 'illegal combatants'.

Some of you may know what the Paladin Group was. A long time ago, I had the occasion (Notice I do not use the word 'pleasure') to meet one of them in a semi-social environment and the subject of terrorists came up. One, an older man, told me this story (and, preemptively, I will 'Cool Story, Bro' myself, since I can't prove his story one way or the other, but regardless, it's food for thought.)

"Everyone acts like 'terrorists' are a new thing. I remember fighting them in the old days, in the East. I was a poacher, I know traps. Anyway, they sent us into the villages and towns and we found them. We hunted them down and rounded them up. Every terrorist and partisan we could catch. You don't show them or their supporters mercy. You use fire, the bayonet, and grenades, that is how we did it, and it worked. They were a threat to the people, you see, and it was our duty to destroy them.

When they ordered us into Warsaw, the terrorists never had a chance."


This is a story that has played out before, in ways that should bring horror and revulsion to any that know the tale.


It starts with accusations of terrorism and treason and the revoking of people's rights under the law.


And ends with a train door sliding open and the words Arbeit Macht Frei

BaronIveagh wrote:
You'll pardon me if I don't see the lack of an International Treaty providing a category for 'unlawful combatants' as a deficiency. But sadly, i also still subscribe to outmoded ideas like decency, human rights, and the rule of law. All of which the US has been quick to abandon of late in the name of expedience against 'illegal combatants'.

Its a deficiency because the Geneva Conventions, which are far, far more important than the Hague Conventions (you'll note that many of the signatory states no longer exist), specifically define what a "lawful combatant" is and the majority of people we are presently in conflict with do not fit the definition. Either they are "unlawful combatants" and not protected by the Geneva Conventions, "lawful combatants" that require the conventions to be revised, or "unlawful combatants" that also require the conventions to be revised.

In short, you can't try to make a legalistic argument, and then appeal to things like "decency".

BaronIveagh wrote:
Some of you may know what the Paladin Group was.

I fail to see any significant parallels between the Paladin Group, and an isolated drone strike in a foreign country. Systematic slaughter doesn't really equate to killing one guy.

dogma wrote:
In short, you can't try to make a legalistic argument, and then appeal to things like "decency".

interestingly enough, that was a portion of the argument against Wirz at his trial for things like crimes against humanity. But I digress.

dogma wrote:
I fail to see any significant parallels between the Paladin Group, and an isolated drone strike in a foreign country. Systematic slaughter doesn't really equate to killing one guy.

Well, two things. One is his justification for a wide variety of reprehensible things was the same as our justification for a wide variety of similar reprehensible things. You don't think any of those guys started off with butchering thousands do you? Two, taken as a whole, our drone strikes are getting up there as far as Civilian Casualties go. Numbers are down, now that any adult of a certain age is retroactively a militant (personal opinion: in much the way babies, chickens and pigs were Viet Cong), but based on released numbers, we're still on the far side of a thousand civilians killed, including 209 children, in drones strikes alone.

This is one of those cases where, as has been said many times before, boots on the ground are much superior to air strikes. Soldiers kicking in the door and finding a family sitting down to dinner are (I would hope) less likely to kill them all and then fingerprint the corpses.