Omar, The Law? and Forgotten History

Years ago the Geek was offered an all expenses paid trip to law school. It took him less than a deuce of microseconds to decline. The reason? The Geek has often been of the view that the law is an ass, sometimes a perfect ass.

The current appeal by the US military of a ruling by military judges at the Gitmo KZ-lager regarding the unlawfulness of declaring an enemy combatant to be an "unlawful" enemy combatant justifies to the Geek's total satisfaction that the law can be the perfect ass. Walk through the morass with him and perhaps you will come to share the Geek's stance.

The specific case involves one Omar Khadr, a Canadian national whose family is purported to be major league supporters of the Islamist world view generally and Osama bin Ladin in particular. Omar, who was fifteen at the time, was in Afghanistan at the time of the US led invasion.

Presumably Omar was not in Afghanistan at an al-Qaeda facility because of his deep desire to study Afghan culture and language. Whatever his reason for being at that place at that time, when the facility was attacked, Omar pitched a hand grenade at the intruders, allegedly killing an American sergeant.

Captured at the end of the engagement, Omar was taken to Gitmo where he has resided ever since. Given recent descriptions of the twenty year old young man, Omar does not seem to have suffered physically or mentally from his detention. At the status review hearing conducted pursuant to a law passed by the Wallahs in Congress during the great patriotic frenzy following 9/11 and our invasion of Afghanistan, the military judge found that inconsistencies in the laws precluded finding Omar an "illegal enemy combatant."

The Pentagon, presumably with the knowledge and consent of the current administration and Commander Guy, has appealed the ruling. The position of the Pentagon's lawyers as far as the Geek can decode it is simply that the law is perhaps imperfect but it is evolving toward perfection, so give us another bite at the apple named Omar.

The Geek's argument against the Pentagon's position is, as some lawyers are wont to say, two pronged. One prong is history. The other is the nature and character of war, past and present.

(OK, the Geek admits that you've got him. Both prongs are historical. Geeko just can't dissemble well enough. That's why it's a good thing that he never went to law school.)

First, a stipulation is in order. The Geek stipulates without reservation that Omar Khadr is and was five years ago an enemy of the United States. The Geek further stipulates that Omar was on the date of his capture a combatant. (He did throw a grenade at the least, and the Geek doubts that Omar confused that missile with something less lethal, like. say, a bunch of rose petals.)

The customs and usages of war had long defined the rights, duties, and qualifications of combatants. These were summarised in the Hague Convention on land warfare, specifically the Annex to the Convention signed on 18 October 1907. To be a lawful combatant an individual must meet the following qualifications:
1. Must be within a chain of command
2. Must have a fixed distinctive emblem recognizable at a distance
3. Must carry arms openly
4. Must conduct operations in accordance with the laws and customs of war.

These qualifications contained within Article I of the 1907 Annex to the IV Hague Convention, which was ratified by the US, have been at the heart of all American laws, regulations, and usages for discriminating between combatants and civilians in every war we have waged to date. The same is true with the vast majority of States (including Afghanistan.)

The Hague qualifications have some profound ambiguities. The nature of a chain of command, or as originally stated, "a commander responsible for his subordinates." is not well defined. Chains of command, control, and communication vary widely between different belligerents of differing military philosophies and technological capabilities.

Next, just what is "a fixed emblem recognizable at a distance?" Recognizable when and under what conditions? Daytime only? Nighttime? Rain, haze, smoke, fog? By whom? With what level of visual acuity? Normally, common sense prevails and the term "emblem" is interpreted as a uniform. (Not the same uniform as worn by the enemy of course. That gets you shot as a spy.)

All reports seem to agree that Omar was in an al-Qaeda camp which implies some sort of command and control mechanism. Certainly he was carrying arms openly since it is darn hard to toss a grenade otherwise. As he was responding to an armed attack and used a common military weapon, it is safe to infer that he was following the laws and customs of land warfare.

The big unknown was whether or not Omar was wearing an "emblem recognizable at a distance." This brings up an interesting question. What is a uniform and how would you know it if you saw it?

The basic idea is that the "emblem" or uniform allows a soldier in combat to make a quick, accurate distinction between an enemy combatant (legitimate bullet catcher) and a civilian wandering through the battle zone (a bullet catching no-no.)

At one time in military history this was an easy matter to accomplish. Soldiers wore bright, heroic type costumes. The Redcoats wore red and the the French, for example, wore white.

But, over time as weapons improved and tactics changed, the armies of the world came to the conclusion that being seen made it easier to be made dead. So much for bright, easily distinguished clothing as an emblem.

The purpose of the camouflage battle dress now worn by every soldier everywhere is that of not being seen. Similarly, the basic military maneuver known as "duck and get behind cover," is to reach the end of not being seen. That's two strikes against the "emblem" clause.

Now the third strike. Get a grip on it.

Insurgents, particularly those who fight irregular, or as it is vulgarly referred to, "guerrilla" war, do not want to be easily distinguished from the surrounding civilian population. This reality, which was a recurrent feature of the many insurgencies world wide during the 1940s and following decades, was recognised by the United Nations.

Protocol I to the Geneva Conventions of 1949 (1125 UN Treaty Series 3) adopted at Geneva on 8 June 1977 specifically recognises the needs of the insurgent and requires that the guerrilla insurgent be accorded legal combatant status if he:
1. Carrys arms openly during a military engagement
2. Carrys arms openly during such time he is visible to the adversary during a pre-engagement deployment. That is during the period immediately prior to launching an attack. The Protocol in Article 44 makes no reference to either "emblems" or carrying arms openly when defending against an attack.

The United States, in common with other satiated powers, was and is not a party to this Protocol despite its realistic view that not all wars are between States with organized, regular armies.

If the question of Omar's "lawful" combatant status hinges on the "emblem" or uniform question, the Pentagon lawyers would be well advised to check back into recent US history. During the Reagan administration the US sponsored, supported, trained, and equipped offensive insurgents known as the "Contras" whose goal was the overthrow of the communist regime of Nicaragua.

The films and photographs of the day show that the Contras generally wore a "uniform" consisting of either jeans or US Army utility pants, a tee shirt generally bearing the icon of a NFL or Major League Baseball team, and a "gimme" cap. Right. That's a uniform?

Or, the lawyers might look at US practice in World War II. OSS personnel parachuted into occupied Europe on clandestine missions wore either an Army issue jump suit over their civilian clothing or simply some single article of military issue apparel. The lawyers of that time apparently believed such was sufficient to extend the prisoner of war status to a person who might otherwise be summarily executed as a spy or franc tireur.

In short, the "emblem" test is a crock.

So, what about the fact that Omar was not an Afghan?

That's irrelevant. The customs, usages, and laws of war have long recognised that third country nationals might serve in combatant positions. The only prohibition is another UN treaty to which the US is not a party banning mercenaries from lawful combatant status. No allegation to the effect that Omar was a teenage merc has ever been made.

Now a bit of history, the history of war. It's worth getting a grip on.

If the minions of law enforcement kick in your door, subject you to various indignities and depredations, you have no legal right to resist. Indeed, if you do, you are liable to prosecution on that fact alone even if the cops have kicked in the wrong door, roughed up the wrong people and hauled a perfectly innocent person (you) off in handcuffs, shackles, manacles, and disgrace to the local slammer. The theory is that you will have the right to litigate for compensation afterwards.

It has long been recognised albeit reluctantly, that in the case of invasion the citizens have the right to take up arms in defense of the homeland. When Prussia invaded France in 1870, Frenchmen did resist the invader even after one or more French armies had surrendered. The French government acknowledged and regularized this fact on 21 September 1870. Less than a month later the French government went further, establishing a chain of command for these francs tireurs so that by all relevant customs and usages they were combatants.

The Germans refused to recognise the status. Von Moltke, the Prussian Chief of Staff, ordered that villages be burned, hostages taken, and individuals taken in arms be summarily shot. At the time and later, Europeans with a sense of history (and irony) reflected that when Napoleon invaded the German States, a number of jaegers and similar forestry types had a jolly good time plugging the odd invading Frenchman and generally raising the same merry hell on outposts, patrols, and supply dumps as did the francs tireurs.

Now, if that analogy is a bit arcane for the Pentagon, perhaps they could use one a little closer to the American heart.

A uniformed military force belonging to a foreign power launched a search and destroy mission against a pair of peaceful villages. The invading force successfully conducted their operation, destroying foodstuffs and killing a small number of local defense force volunteers who wore uniforms, carried arms openly, and were under the command of a responsible official.

While the military column was withdrawing to their garrison, the word of the incursion spread throughout the region. Unordered and unbidden, civilians left their homes, guns in hand and took cover in the woods on each side of the road along which the enemy was withdrawing.

From ambush positions these un-uniformed, un-commanded volunteers engaged the enemy with galling fire. Many casualties were inflicted as the long, hot afternoon wore into evening. The unlawful colonial combatants continued their ambush every inch of the way until the last of the British troops had entered Boston.

Then, these American "free shooters" sat down to besiege the British. The War of Independence had begun.

Omar is not, in the Geek's view, the moral equivalent of the Minutemen. He is, however, every bit as much of a lawful combatant.

The Pentagon and the current administration, and the lawyers that represent them need to get a grip. They need to get a grip on the realities of war and the realities of history.