Can you charge Al Qaeda members with war crimes?

[nvidiot]

Quick question that came to me just then:

If members of Al Quaeda are classed as unlawful combatants, and can't be tried under the rules of war, (no POW status etc), does that mean they can't be charged with War Crimes under the Geneva Convention? Or are there specific rules within the convention that allow for unlawful combatants to be charged with crimes of war?

I'm sure there's a simple answer to this, but I'd be interested to see what the answer is from the illustrious members of the JREF.

(please move if this is in wrong sub forum. )

 

[casebro]

Unlawful Combatants are considered spies and lack any legal protection. Charge them with war crimes, or just execute them without a trial.

 

[nvidiot]

So you can charge someone with war crimes who is not a lawful combatant?

 

[Crossbow]

Quick question that came to me just then:

If members of Al Quaeda are classed as unlawful combatants, and can't be tried under the rules of war, (no POW status etc), does that mean they can't be charged with War Crimes under the Geneva Convention? Or are there specific rules within the convention that allow for unlawful combatants to be charged with crimes of war?

I'm sure there's a simple answer to this, but I'd be interested to see what the answer is from the illustrious members of the JREF.

(please move if this is in wrong sub forum. )

Well, I suppose that it could be done, but I doubt that it will be done.

To explain, since war crimes are normally reserved for cases that are clear violation of international law and where the nation (or nations) doing the charging want to send some sort of positive message about the 'rule of law' to the rest of the world, then I am not sure that charging members of al Quaeda will be all that effective.

 

[JoeTheJuggler]

You can charge anyone you have jurisdiction over with any crime, including crimes against humanity or war crimes.

Having a POW status is not a criminal accusation.

The category "unlawful enemy combatant" is actually an accusation of criminal activity. I'm not sure why so many people think it's not.

 

[Cylinder]

If members of Al Quaeda are classed as unlawful combatants, and can't be tried under the rules of war, (no POW status etc)...

There is no bar on prosecuting illegal combatants under articles of war. In fact, being an illegal combatant is itself a crime in most jurisdictions.

 

[Bill Thompson]

They are products of Islam. They could use the insanity defense.

 

[Crossbow]

They are products of Islam. They could use the insanity defense.

Wow!

What a stunning legal defense. You and Bart Simpson must be at the top of the short list for Chief Justice of the Supreme Court.

 

[JoeTheJuggler]

If members of Al Quaeda are classed as unlawful combatants, and can't be tried under the rules of war, (no POW status etc), does that mean they can't be charged with War Crimes under the Geneva Convention?

You are confusing the 3rd and 4th Geneva Conventions. There is no restriction that says the 4th Geneva Convention only applies to POWs. War crimes (under the 4th Geneva Convention) are basically crimes committed against civilians during times of war.

As I said earlier, anyone can be charged with war crimes.

Now, if you're asking whether or not there is enough evidence to get a conviction in a given case, that's another story. And certainly only having evidence of membership in Al Qaeda is not enough.

 

[ladmo]

You are confusing the 3rd and 4th Geneva Conventions. There is no restriction that says the 4th Geneva Convention only applies to POWs. War crimes (under the 4th Geneva Convention) are basically crimes committed against civilians during times of war.

As I said earlier, anyone can be charged with war crimes.

Now, if you're asking whether or not there is enough evidence to get a conviction in a given case, that's another story. And certainly only having evidence of membership in Al Qaeda is not enough.

Could you provide some additional clarity (for me) "that anyone can be charged with war crimes"? I can't see how, if a country or person is not a party to the agreement, the agreement has jurisdiction or authority in prosecuting the accused.

Thanks

 

[JoeTheJuggler]

Could you provide some additional clarity (for me) "that anyone can be charged with war crimes"? I can't see how, if a country or person is not a party to the agreement, the agreement has jurisdiction or authority in prosecuting the accused.

OK--anyone in your jurisdiction. (I stated this fully in my first post in this thread, and from the context of the OP, jurisdiction is not an issue.)

The OP seemed to be under the misconception that being an illegal enemy combatant somehow puts a person outside the Geneva Conventions. (It only puts them outside the 3rd Geneva Convention which applies to treatment of POWs.) By that reckoning, only POWs can be charged with war crimes, which is false.

And the issue of being a party to an agreement refers to nations (who agree to the conventions), not to individuals.

 

[ladmo]

OK--anyone in your jurisdiction. (I stated this fully in my first post in this thread, and from the context of the OP, jurisdiction is not an issue.)

The OP seemed to be under the misconception that being an illegal enemy combatant somehow puts a person outside the Geneva Conventions. (It only puts them outside the 3rd Geneva Convention which applies to treatment of POWs.) By that reckoning, only POWs can be charged with war crimes, which is false.

And the issue of being a party to an agreement refers to nations (who agree to the conventions), not to individuals.

Thanks... my bad, I see your post. Now, it makes sense.

 

[lomiller]

So you can charge someone with war crimes who is not a lawful combatant?

I don’t believe so. Spies can be executed specifically because they fall under civilian law of the country in question instead of being receiving the protection of the Geneva Convention. You either treat them as soldiers and afford them the protections of the Geneva Convention or treat them as civilian and subject them the standard civilian justice but you can’t mix the two.

Keep in mind however that even though you may not be able to charge them with war crimes, there are other “crimes against humanity” for which they could still be charged.

 

[nvidiot]

Thanks for the replies guys, it is appreciated.

It appears that Joe has answered the question most effectively for me.

I looooove these forums. Have I mentioned that?

ETA, just to be clear, if a civilian terrorist commits what is for all intents and purposes a "war crime" as defined in the conventions, they can be charged using that system? Never mind if they would be charged, as of course other charges under civilian law would apply to such crimes, but focusing on if they can be charged using "war crimes".

 

[JoeTheJuggler]

ETA, just to be clear, if a civilian terrorist commits what is for all intents and purposes a "war crime" as defined in the conventions, they can be charged using that system? Never mind if they would be charged, as of course other charges under civilian law would apply to such crimes, but focusing on if they can be charged using "war crimes".

Yes. War crimes are defined as violence against noncombatants (including even uniformed combatants who have laid down their arms and combatants taken out of combat--such as POWs) during time of war.

It is generally aimed at the actions of governments or people in command, but i know of nothing that limits it to those. For practical purposes, it would usually be used for those entities, since civilians committing those crimes would be subject to regular domestic criminal law.

The 4th Geneva Convention, by the way, is what makes mass punishment illegal. You can't do violence against a non-combatant as punishment for a crime they themselves did not commit.

But to your question, I see nothing in the text that limits it to non-civilians. Its focus is on who the victim of war crimes might be.

I do recall some international law that makes civil suit available for war crimes, and it was limited to people in command (or effectively in command) of combatants. Off the top of my head I don't remember what treaty that was, but I recall attempts being made to sue some of the bad guys from the violence in El Salvador. IIRC, the issue of jurisdiction was a simple matter of the person setting foot in the U.S. (Also, IIRC, the court accepted the defense's lame argument that "effectively in command" didn't mean a person in charge absent the title or official position of being in command, but meant that if the guy was supposed to be in command but lacked the ability to control the thugs under him, then he wasn't subject to this law).