Double Standards

The nation that draws a clear line of demarcation
between its thinking men and its fighting men
will soon have its thinking done by cowards
and its fighting done by fools
--General Sir William Francis Butler

I wish I may, I wish I might,
have the wish, I wish tonight
--Star Light, Star Bright,
Mother Goose Nursery Rhyme
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[D-15] . . .Insurgents have no special status under international law. They are not, when captured, prisoners of war. Insurgents may be prosecuted legally as criminals for bearing arms against the government and for other offenses. . . . insurgents are, as a legal matter, criminal suspects within the legal system of the host nation (HN).

[D-16] . . . In the absence of [a Status of Forces Agreement] or some other arrangement with the host nation, DoD personnel in foreign countries may be subject to its laws.

--From "Application of Criminal Laws of the Host Nation," (FM 3-24, Sec. D-4)

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Despite the COIN manual's assertion, in practice, there is no reciprocity. Insurgents are detained as criminal suspects within our jurisdiction, while it is highly unlikely that DoD personnel would be subject to host nation laws.

As there is no Status of Forces Agreement with Iraq or Afghanistan, the legality of the Iraq occupation hinges on a U.N. declaration that the U.S. is a legitimate occupying power; no such legal niceties exist in Afghanistan.

No rational person believes that "DoD personnel in foreign countries may be subject to its laws." If this fantasy statement conferring illusional autonomy is true, why hasn't even one GI been tried or convicted in an Afghani or Iraqi court of law for any legal violations?

Ranger reckons weasel word "may" is a great big rubber yardstick when it comes to the sovereign nature of the HN laws. In fact, the phrase "some other arrangement" could be interpreted as, "We have our boots on your neck."

Far as FM 3-24's contention that "insurgents have no special status under international law," there is the small matter of a legal conflict: D-15 contradicts the Geneva Conventions. Commentary to the GC IV states:

"Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view."

Protocol I, Article 44 to GC III extends P.O.W. status to "insurgents and guerrillas even if they don't distinguish themselves from the civilian population."

Protocol I further gives all combatants, lawful under Article 4 of the Third Geneva Convention or not, an equivalent status to 'prisoner of war' with the same rights and protections, when captured, regardless of their adherence to the laws of war. Whilst prisoner of war status under the Third Geneva Convention is contingent upon adherence to the laws of war, under Protocol I no breach of the laws of war can place an enemy combatant outside the scope of any rights or protections afforded to captured lawful enemy combatants.

Protocol I, ratified by 167 countries, was signed by the U.S. in 1977 but has yet to be ratified.

The United Nations and the Geneva Conventions recognize the legitimate nature of insurgency. Not all insurgents are evil or criminal; remember George Washington?

Tomorrow is the 4th of July: What is your Army doing that violates the spirit of the day?

--Jim and Lisa