Comment by berntb | Hacker News Reader

Comment by berntb | Hacker News Reader

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Your whole position is based on a claim that there must exist a nation state to have a "war".

You also claim that the laws of war are not applicable to the remaining types of military conflicts (with clans/tribes, any organization that is geographically spread, etc, etc).

Do you have references? [Edit: The references need to show that the laws of war don't apply to these other conflicts, too.] Also not that the world's law experts don't seem to agree [Edit: with you. See link in edit at bottom.]

(Note that by your definition we need a new word for civil wars -- at least one side is not a nation state. We also need a new word for most of the military conflicts through history -- and today. And so on.)

(Also, you shouldn't argue against what politicians say in public speeches, for the same reason you shouldn't believe advertisements...)

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Re Guantanamo:

You ignored my argument.

Again: Afaik, you can keep combatants prisoner until after the hostilities. Which are still continuing. [Edit: This seems to be the relevant part in the Geneva Conventions -- https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xs... ]

The Taliban had a government, they were a nation. So it qualify as a "war", even according to your definition.

The Taliban and their allies are still fighting.

Are you claiming that conflict stopped being a war when they lost the capital? Please give good references...

[Edit: Here seems to be the relevant definitions in USA, I saw in another place that their High Court argued that the Geneva conventions was relevant under US law also for unlawful combatants: https://en.wikipedia.org/wiki/Military_Commissions_Act_of_20... ]

Just to provide a reference for what you say: to have a "war", one does not need a nation state. And the Geneva conventions on laws of war do apply to armies and militias regardless of whether they are of a recognized nation state. The conventions apply in civil wars, too.

The Daish (IS) fighters are in gross breach of laws of war even though no one recognizes their "state".

The collection of the Geneva conventions is available in many places, here is the site of IRCR:

https://www.icrc.org/en/war-and-law/treaties-customary-law/g...

There used to be a nice, simple presentation of the laws of war at http://avalon.law.yale.edu/ but now you get 500 Internal Server Error for the archives.

However, to be "at war with terrorism" is unfortunately a very difficult position. Definition of terrorism if by necessity quite vague and problematic. (What is "freedom fighter" for one party or at one time may be a "terrorist" for another or at another time).

-- Edit: I see you sourced the ICRC site for conventions yourself.

> Your whole position is based on a claim that there must exist a nation state to have a "war".

No, my position is based on the fact that our treaties on the treatment of prisoners of war apply to nation states. Certainly we can be at war with a non-state actor (we clearly are). But our treaties around prisoners of war are not directly applicable, as the past administrations have made clear.

For wars not against nation states, there must still be some sort of due process for prisoners. The idea that being at war with some entity gives us the right to retain arbitrary people indefinitely, without even proving that they have participated in that entity, is morally unacceptable.

> Do you have references? The world's law experts don't seem to agree...

Do you have an references to the claim that law experts don't agree? There are a few treaties about war prisoners but they apply to signatories, which clans etc are not.

Beyond that, "laws of war" have historically been defined by the victors. I'm not aware of a body of law that applies to wars universally, nor do I believe one could exist. (Who could enforce it?)

> that by your definition we need a new word for civil wars -- at least one side is not a nation state.

You could argue that for civil wars at least both sides would effectively be signatories if the nation as a whole was a signatory before the war began.

> You also claim that the Taliban never was a government? They had control of a large part of Afghanistan. And they are still fighting, along with their allies. I assume you don't argue that a war stops being a war when one side lose control of their capital?

I don't claim any of that. I claim that Afghanistan is at least officially no longer ruled by the Taliban. We don't recognize them as the legitimate government. If we accept that we are no longer at war with Afghanistan then we must according to the Geneva conventions release any prisoners of war captured during the war with Afghanistan.

Any enemy combatants not deemed prisoners of war should be given some sort of due process. Again, the idea that being at war against terrorism gives us the right to indefinitely detain arbitrary people is morally unacceptable.

> You ignored my argument. > Again: Afaik, you can keep combatants prisoner until after the hostilities. Which are still continuing. [Edit: This seems to be the relevant part in the Geneva Conventions -- https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xs.... ] > The Taliban had a government, they were a nation. So it qualify as a "war", even according to your definition. > The Taliban and their allies are still fighting. > Are you claiming that conflict stopped being a war when they lost the capital? Please give good references...

I don't see that I made any of those claims, nor do I feel like I ignored your argument. I don't believe that being a signatory on the Geneva convention in any way gives us a right to indefinitely detain people with no reasonable path to release and no proof of involvement in the conflict. Even if legally we can make that argument, I think it's morally repugnant.

>No, my position is based on the fact that our treaties on the treatment of prisoners of war apply to nation states.

No, they do not apply only to nation states. They apply to combatants, whether of a nation state or not. See the Geneva conventions.

Generally referring to the "Geneva conventions" is not a useful citation. There are hundreds of articles in the conventions. Can you point out where the conventions purport to apply to all combatants?

https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/375-59...

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

By my reading, this applies to conflicts between signatories or conflicts involving a signatory and a non-signatory who accepts the terms of the convention. So not strictly nation states, but also not every party to every conflict.

GCIV, Article 3 i.e. the "Next" after your link is about conflicts within a country, in cases where the parties are not High Contracting Parties.

This is treated as customary international law, based on a UN Security Council conclusion in 1993 making it binding also for non-signatories.

https://en.wikipedia.org/wiki/Fourth_Geneva_Convention

For instance, break it anywhere in the world by killing civilians, and enter my country (say, as a refugee), and you'll be prosecuted if caught. There's even a recent example (a man got life sentence for what he did in Rwandan conflict; the life sentence here is practically something like 12 years).

Interesting. I didn't realize the UN Security Council had passed such a resolution. Thanks.

I'm still not clear that this applies since our enemies do not meet the requirements outlined beyond being signatories (what with insignia and organized ranks etc). Article 3 also refers to conflicts not of an international nature. I'm not sure how that's interpreted. Is that civil wars? Or just wars involving non-state actors? The "war on terror" certainly has an international character.

You knew that 3 hours earlier, when I wrote this in https://news.ycombinator.com/item?id=12738620

[...]

Unlawful combatants don't have access to the rights under war laws, except Article 3 of the Geneva Conventions (see quote below).

Hence, the question is not if you treat them as POWs or as civilians -- but if they have the protection of a POW at all.

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[This was my reference for the previous claims. The Wikipedia link go to the Convention. I earlier referenced the relevant US law and their Supreme Court, which also discuss this.]

https://en.wikipedia.org/wiki/Unlawful_combatant

The Geneva Conventions do not recognize any lawful status for combatants in conflicts not involving two or more nation states. A state in such a conflict is legally bound only to observe Article 3 of the Geneva Conventions and may ignore all the other Articles. But each one of them is completely free to apply all or part of the remaining Articles of the Convention.[6]

> You knew that 3 hours earlier, when I wrote this

First, no. You asserted it repeatedly without a compelling reference. Ptaipale provided a verifiable claim about the UN Security Council affirming that this had become international law. You linked to an article that happened to make a similar claim but had no reference to the UN Security Council decision (nor does the citation it references so far as I can see).

Second, I admitted a gap in my knowledge and your response was to come in and assert that you told me the same earlier (which you actually didn't). If the point of your arguing was to educate, this is a really poor technique. Don't respond to someone acknowledging a mistake/misunderstanding/knowlege gap by trying to make it about how "right" you are. It comes off as petty.

If a Wikipedia link with multiple good sources already in the introduction isn't enough for someone without a clue on a subject, I should have left the discussion.

My personal heuristic to avoid grief in the future: Don't discuss with anyone that dismiss Wikipedia without references... no, without having primary sources for references.

Thank you for that. The net and HN will be better for me.

(Edit: The UN and the UN Security council make resolutions all the time. I doubt a majority are followed. :-) E.g. http://articles.latimes.com/2002/oct/17/world/fg-resolution1... )

Your wikipedia link doesn't cover the UN resolution, nor does the citation, which appears to be ICRC's commentary of the treaty. The article you linked does assert it, but without any significant support aside from the ICRC's commentary.

I'm glad I could help.

>> No, my position is based on the fact that our treaties on the treatment of prisoners of war apply to nation states. [...] our treaties around prisoners of war are not directly applicable, as the past administrations have made clear.

(I asked for references to support that claim already -- got nothing from dpark...)

What your position is based on, according to yourself, is wrong. I added this link around ten minutes before you posted that:

https://en.wikipedia.org/wiki/Military_Commissions_Act_of_20...

It address exactly those unlawful combatants and laws.

It was drafted as a result of a decision by the US the Supreme Court. (As I noted, another Supreme Court decision was that the Geneva Convention do cover unlawful combatants.)

(I also added a link to the Geneva Protocols, discussing when a POW can be sent home.)

Enough, bye.

> I asked for references to support that claim already -- got nothing from dpark...

Where in the Geneva conventions does it say that they apply to all warring parties? I'm genuinely asking. My understanding is that they apply to signatories only:

https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/375-59...

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

So, it applies to conflicts between signatories or conflicts involving a signatory and a non-signatory who accepts the terms of the convention. So you're right that it's not strictly nation states. But it's also not every combat participant by my reading.

> What your position is based on, according to yourself, is wrong. I added this link around ten minutes before you posted that:

> https://en.wikipedia.org/wiki/Military_Commissions_Act_of_20...

> It address exactly those unlawful combatants and laws.*

This is not a treaty. Also, the problem with retaining people indefinitely doesn't go away because we pass a law declaring that we can call them combatants. We know that we have detained innocent people in Guantanamo for extended periods of time. You can legally call them whatever you want, but it's still morally repugnant to hold innocent people indefinitely. (It is morally repugnant to hold anyone indefinitely without trial because it indicates an unwillingness or inability to establish guilt.)

>> Where in the Geneva conventions does it say that they apply to all warring parties?

[Edit: ptaipale discussed that here: https://news.ycombinator.com/item?id=12738768 too.]

Unlawful combatants don't have access to the rights under war laws, except Article 3 of the Geneva Conventions (see quote below).

Hence, the question is not if you treat them as POWs or as civilians -- but if they have the protection of a POW at all.

That is more than enough to show my argument correct.

https://en.wikipedia.org/wiki/Unlawful_combatant

The Geneva Conventions do not recognize any lawful status for combatants in conflicts not involving two or more nation states. A state in such a conflict is legally bound only to observe Article 3 of the Geneva Conventions and may ignore all the other Articles. But each one of them is completely free to apply all or part of the remaining Articles of the Convention.[6]

Since you have no foot to stand on -- bye.

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(A note that doesn't matter for my argument: Out of interest you might want to read this and the "See also" for the page, especially the "No longer enemy combatant" link: https://en.wikipedia.org/wiki/Unlawful_combatant#Internation... The US Supreme Court seems to agree that unlawful combatants should get protection by the Geneva Conventions -- but this doesn't matter for my argument anyway.)

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