Unlawful combat (cont’d)

Kevin Drum has a disturbing post concerning the tactics of US Special Forces in the current war. He raises the question whether the US is doing some of what we have criticized our enemies for. [Earlier post here.]

I’m not sure of the facts here, and I’m not entirely sure of all the relevant law. (Corrections invited.) But here’s how it looks to me:

Our Special Forces (and equivalent British units) might have been:

1. Going around behind enemy lines in their uniform camouflage dress, blowing up military targets and killing soldiers in open combat or from ambush. Not morally problematic, and protected by the laws of war. If captured, soldiers engaged in such actions would be entitled to treatment as POWs, with all the protections that legally affords under the Geneva Conventions.

2. Going around behind enemy lines in civilian clothing to gather information or encourage residents of Iraq to join our side of the conflict. Again, not morally problematic at all, and not forbidden by the laws of war: not “war crime.” But also not protected by the laws of war. People engaged in such activity, whatever their military status or rank, are not “soldiers,” for the purposes of the Geneva Conventions, and thus don’t become “POWs” if captured. They are “spies,” and since what they are doing is of course a violation of Iraqi domestic law — or the domestic law of any other state — they are subject to the full rigors of that law. That’s why Gen. Washington had Maj. Andre hanged instead of shot: what he was doing was not merely a crime, it wasn’t even a soldier’s crime, and therefore didn’t entitle him to a soldier’s death.

3. Going around behind enemy lines in civilian clothing to blow up legitimate military targets. Just as above: not morally problematic, not a war crime, but not protected by the laws of war either. This time the people doing it are “saboteurs” rather than “spies,” but the rules are the same: they aren’t soldiers, and therefore aren’t POWs if captured.

4. Going around behind enemy lines in civilian clothing to kill civilian leaders in the military chain of command. Assuming that the President and the Minister of Defense are both legitimate military targets, legally this case is identical to the two above: “assassins” are just like spies and saboteurs. If some commando manages to kill Saddam Hussein, he (or she) will be a hero in my eyes, but the Iraqis have no obligation to agree if they get their hands on him (or her). Things get hairier, legally and morally, when the targets are not in the military (or, I might add in the totalitarian context, police or party) chain of command. A clerk in the health ministry is pretty obviously just a civilian, and deliberately and avoidably killing civilians is war crime, however the person doing the killing is dressed at the time. I’m not sure about the local Ba’ath party boss, or whatever you call a “mayor” in Arabic. But here the moral and war-crimes questions don’t turn on the issue of civilian dress; the matter comes down to who is, and who isn’t, a legitimate target.

5. Going around behind enemy lines in civilian clothing to ambush soldiers and police. This is the close parallel to the Iraqi practice of disguising soldiers as civilians to ambush Coalition forces, and is to be condemned on the same grounds (without even the excuse, on our side, that this is a war of national survival against an invader). If American soldiers dress as Iraqi civilians and fire on Iraqi soldiers, we encourage Iraqi soldiers to kill Iraqi civilians, which is exactly what the rules of war are designed to prevent. Clearly soldiers doing so would not be protected by the rules of war, and I’m almost certain that so acting constitutes “war crime.” (Guerilla activity in one’s own country may sometimes be lawful, or at least non-criminal, combat; but surely not on someone else’s territory.) I don’t know whether Coalition forces are in fact acting in this way; I hope they aren’t.

6. Going around behind enemy lines in civilian clothing to kill ordinary civilians or blow up houses or other non-military targets. Terrorism pure and simple. War crime. “The defendant will please rise.” I’m just about certain we’re not doing it.

Kevin is right to say that our criticism of Iraqi tactics is on shaky grounds to the extent we’re using the same tactics. (Speaking of which, I continue to see pictures of Iraqi POWs in humiliating postures in my morning newspaper, a week after we made al-Jazeera a pariah for running similar footage of American POWs.) But surely the conclusion ought to be that it’s wrong for us to be doing it — insofar as we are doing it — not that the Iraqis are justified in doing the same things.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com