Repost from the old site. There has been a great deal of controversy over the Bush Administration’s theory of “illegal combatants” in its Terror War. The Obama Administration appears to be continuing this practice. This post compares the Israeli treatment of guerrilla combatants and terrorism suspects with the US treatment of such and suggest that the Israeli model seems superior and ought to be adopted by the US.
First of all, just to clarify a few things. There is simply no such thing in International Law as an illegal combatant. The despicable US media has done a terrible job in conveying this fact to the American people – that is, they have simply not told us this fact.
Our understanding of the classification of detainees in modern warfare comes from the post-World War 2 Geneva Conventions. According to these conventions, one is either a civilian or a combatant.
There is small exception granted for spies, which the pro-Israelis, neoconservatives, latent fascists and all those who despise International Law have made much hay over. According to these fascist-type individuals, everyone “who is not in a uniform and following the rules of war” may be “considered a spy” under the Geneva Conventions and simply executed.
According to an email exchange I had with Francis Boyle, this is a blatant abuse of the Geneva Accords. Spies are simply spies, and the Geneva Conventions, especially in its later 1976 amendment covering guerrilla fighters, covers all other combatants. The 1976 was and is furiously despised by US rightwingers, especially pro-Israeli neoconservatives.
Think about that for a second: One is either a combatant or a civilian. Combatants, in general, are to be treated in accord with the Geneva Conventions, that is, they are to be granted POW status. In cases of internal civil wars, many combatants are tried for violating the laws of the land under anti-terrorist statutes. That is pretty much legitimate.
However, in order to treat any Terror War forces as such, we would have to catch them committing acts on US territory. It is outrageous and improper to arrest and try under anti-terrorist statutes enemy combatants captured in an overseas war, unless they are planning attacks in your country.
Therefore, there is absolutely no legitimacy whatsoever for the utterly outrageous trials we have had in our country in which people who fought for the Taliban were charged with “murder” and “attempted murder” of US troops during wartime in Afghanistan! Once again, the vile US media has simply refused to convey this incontrovertible fact to the public.
If, during wartime (or especially afterward) you wish to try enemy combatants for violating the rules of war (war crimes), this can be done, but it’s best done at the International venues such as The Hague, since, for example, for the US to try combatants for war crimes for acts committed in overseas wars seems like a violation of neutrality.
If this were allowed, any nation involved in a foreign war could grab any and all enemy fighters, bring them back to the home country and concoct BS “war crimes” charge against them. This is why neutral venues like the Hague are preferred.
The Bushies had a problem. All, or almost all, of the combatants in Afghanistan and Iraq were, and are, subject to the Geneva Conventions, and need to be treated as POW’s. That means you can’t interrogate them, you must treat them well, you have to let the Red Cross visit them, etc.
It is because the enemy fighters in question at Abu Ghraib and Guantanamo MUST be treated as POW’s that their treatment caused such a stir. Once again, the repulsive media has failed to inform us of this. The Geneva Conventions forbids torture and even really unwanted interrogation of POW’s.
So the Bushies had a dilemma. They really wanted to interrogate and in many cases to torture these guys to get information out of them. This could not be done if the fighters were classed as POW’s. Nor did the Bushies wish to bring the fighters to trial on terrorism charges in the US because in most cases there was not enough evidence to charge them.
So…the utterly bogus category of “illegal combatant” was invented out of whole cloth. The sickening US media simply went along with the charade and to this day continues to act as if “illegal combatant” is some sort of a legitimate category.
It is not. As I mentioned above, one is either a fighter, a civilian, or in rare cases, a spy. There is no fourth category called “illegal combatant”. It doesn’t exist.
Nowadays, most countries fighting guerrilla wars do not like to be hamstrung by the Geneva Conventions, as they usually want to torture detainees. In this respect, the US is typical. Since the US seems committed to the crime of “illegal combatant” designation, is there a better way to go about it?
Let’s look at, of all cases, the Israeli experience. In this case, the Israelis are acting better than we are. Since the US is not going to give up the illegal combatant designation anytime soon, I suggest we follow the Israeli “illegal combatant” model as a way of at least making a bad thing less bad.
What is the Israeli model and how is it different?
The Israeli model differs in some important ways from the outrages allowed by a Congress that has abdicated its Constitutional prerogatives in the Military Commissions Act, passed in late October 2006 amidst much outrage, and the Detainee Treatment Act of 2005.
The Israeli model, under its own Unlawful Combatants Act of 2002 allows:
- Immediately upon detention, the detainee has a right to a hearing before a military officer
- Within 14 days of arrest, judicial review of the detention must take place in a district court; this review must be repeated every six months thereafter
- The detainee may appeal his detention to the Supreme Court. The Court must revoke the detention if it finds that the detainee is not a national security threat
- The detainee has rights to: medical treatment, food (including right to the buy food items in a cafeteria), clothing, outdoor exercise, religious observance, correspondence with the outside world, cigarettes, visits by humanitarian agencies, including the International Committee of the Red Cross (ICRC), among other things The top Israeli general may allow other visitors, such as family members
- Israeli officials are not granted immunity from prosecution for mistreatment of prisoners
The differences between the Israeli and US bills are striking. Where the Israelis allow judicial review, the US only allows military commissions, which tend to be grossly unfair. With the latest bill, one may appeal to only one court in the entire land, the US District of Colombia Circuit Court of Appeals and this court is forbidden, outrageously, from applying international humanitarian law in judging the detainee’s case.
As far as who is the final arbiter of international humanitarian law, Congress has incredibly given the President of the US the right to interpret what exactly international humanitarian law really means. He is free to come up with any outrageous interpretation he wants to. US officials are granted immunity from prosecution from all but “grave breaches” of humanitarian law. The Israelis are not.
Whereas the Israelis allow visits by the ICRC, the US does not mandate such visits. Where it does allow visits, the US acts as if it is doing so out of the goodness of its heart.
Palestinians are usually tried under terrorist laws or else just put under administrative detention. The Israeli bill was intended to cover mostly foreigners, especially Arabs, who violated terrorist laws. The purpose was to put them into unlimited detention without having to bother to put them on trial for anything.
That’s not ideal but as long as we are going to play by the charade of illegal combatants, we can choose to do so with more dignity and decency than we are now. And we can look to Israel, not exactly a paragon of human rights, for an appropriate model.
The Israeli solution, while providing much more individual rights than the US model, has not caused any security risks for Israel. It is important to note this because the conservative ultra-liars who were pushing the fascist US laws never stopped beating the drum of “security risk”.
The nauseating US media played right along with this joke, acting like folks who protested the outrageous and fascist Republican bill were “endangering the lives of Americans”. With the Israeli experience, not only has this been shown to be a lie, but we now have a model for a better way of doing a bad thing.