When I was a child in school, I learned about wars. We talked in school of other events in human history, but the timeline seemed defined by war. When I thought of the history of the United States, it appeared in my mind as chunks of time separated by wars: the Revolutionary War, the Civil War, World War I, World War II, and Vietnam. They seemed so clear – a start date and an end date; we were the good guys (of course) and the bad guys were conquered but we eventually became friends again. The battles had funny names, and sometimes it seemed to me as if they were simply violent parties – everyone came to the appointed field on the appointed day and lined up on their respective side, and the battle began. It would not have surprised me if a teacher had mentioned that engraved invitations were sent out. Vietnam was explained as being an aberration, a strange situation where we lost because it was so different from all the other wars we had fought – we couldn't tell who the enemy was, they acted just like the rest of the villagers.
Of course, my impressions were far from the whole truth. But I think there is a kernel of truth in them, as a reflection of what we, as a country, expect from war. These expectations are reflected in some of the questions that we are confronting in the “War on Terror.” One of these questions is of the difference between a “lawful” and an “unlawful” combatant, both in definition and in treatment.
In 2006, Congress weighed in with the “Military Commissions Act of 2006,” which defined an unlawful enemy combatant as “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces) ); or a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006 (“the Act”), has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”*fn1*
The first part of this definition is essentially one of exclusion – you are an unlawful combatant if you are not a lawful combatant. So the Act goes on to define a lawful combatant,*fn2* a definition which tracks very closely with the Geneva Convention definition of a prisoner of war.*fn3* However, the two definitions diverge on one important point – while the Geneva Convention includes “members of the armed forces of a Party to the conflict,”*fn4* the Act changes this to “the regular forces of a State party.”*fn5*
I am of course not the first person to visit this issue. This question has been discussed and pondered quite a bit over the past few years, well beyond the halls of Congress. As usual, the Wikipedia article is a good beginning point to get an overview of the controversy.
I bring up this topic now because of a recent case which has once again raised the issue of whether a combatant is lawful or unlawful. The government is planning to prosecute Omar Khadr, a Guantanamo Bay detainee, in a military commission of the type contemplated by the Act. He is accused of war crimes that are mainly based on the death of a U.S. Sergeant who was allegedly killed by a grenade tossed by Khadr.*fn6*
One of the aspects of this case that makes it so interesting are the circumstances surrounding the death of the Sergeant and Khadr’s subsequent capture. Court documents filed by the government indicate that this was not a situation when U.S. soldiers could not identify the enemy. Rather, the U.S. soldiers initiated contact – they “approached the compound and asked the accused and other occupants to surrender.”*fn7* The documents then indicate that a “firefight” took place, but fail to describe who initiated the firefight.*fn8* During this firefight, Khadr was injured by shrapnel and shot twice in the back.*fn9*
So should Khadr be considered an unlawful combatant? The implications of this question are profound – if he is not, then his actions may be considered as lawful actions of war, and he is then to be released at the end of the war.*fn10* If he is an unlawful combatant, he faces life in prison.
From a Buddhist perspective, the distinction seems to try to cover up a deeper question, that of the base legitimacy of the use of violence. The concept of “rules of war” seems contradictory in terms – the cause of war could be said to be that one party does not want to follow the rules that the other party has laid down. Humankind has recognized the inevitability of such conflicting interests, and so has attempted to create an ordered and acceptable way of killing each other. But again, this seems to sidestep the question of whether we should kill each other. The Act suggests that such killing is acceptable if condoned by a “State” – but we certainly have plenty of recent examples of States acting in a manner that is later determined to be entirely unacceptable.
*** I have not addressed in this post a few other details about the Khadr case, as they are not as relevant to the lawful/unlawful distinction. However, I think it is important that they are mentioned and kept in mind when considering this case. Khadr was 15 years old at the time he was captured (in July 2002). He was born in Canada, and when he was about 10 years old, his father took him to Afghanistan, where Khadr began training with al Qaeda. Much of the evidence being presented by the government is based on “interviews” that the government conducted with Khadr within the first six months after his capture. ***
***
1. Military Commissions Act of 2006, § 948a (1)(A)(i) & (ii).
2. Military Commissions Act of 2006, § 948a (2)(A) & (B) & (C).
3. Geneva Convention III, Article 4, Aug 12, 1949.
4. Id.
5. Military Commissions Act of 2006, § 948a (2)(A).
6. United States of America v. Omar Ahmed Khadr, Prosecution’s Motion for Reconsideration, June 8, 2007, page 2, § 5a; available at http://www.scotusblog.com/movabletype/archives/Khadr%20reconsider%20motion.pdf.
7. Id. at § 5i.
8. Id. at § 5h-l.
9. Id. at § 5l; see also Michael Melia, Gitmo Suspect Asks Judge to Drop Charges, Associated Press, Feb 5, 2008; available at http://ap.google.com/article/ALeqM5iuZWtyV2t6N6AYyrw6fDnm3R36dgD8UJPGNG0.
10. Geneva Convention II, Article 118, Aug 12, 1949.
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