Sgt. Bowe Bergdahl Prisoner Exchange

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The release of US Army Sgt. Bowe Bergdahl is welcome news. Sgt. Bergdahl, who had been held captive by the Taliban for five years, was released as part of a prisoner exchange negotiated between the US government and the Taliban.

This morning over at the Lawfare blog John Bellinger – former US State Department legal ad visor – argued that, as a matter of international law, these detainees would probably have to be released by the end of the year anyway when US combat operations in Afghanistan come to a close. Article 118 of the Geneva Prisoner of War Convention states that, “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.” According to Bellinger: “The Administration appears to have reached a defensible, hold-your-nose compromise by arranging, in exchange for the release of Sergeant Bergdahl, for the individuals to be held in Qatar for a year before they return to Afghanistan.”

But, are these detainees really POWs since they consciously reject the law of armed conflict? In such a case Article 118 would not apply. I don’t see how this matters in the case of an exchange, though, since the decision is ultimately a policy one and not about the legal status of the 5 Afghan detainees.

Many Republicans are also questioning the exchange claiming this sends a message to terrorist groups like the Taliban that the US will negotiate with them. But such exchanges have a long history in armed conflict. Even terrorist groups can have rational demands, though there is no need to give in to all of them.As Joshua Hurst tweeted this morning, “In the real world, there are just more distasteful people who nevertheless have to be dealt with.”

There is also the accusation that Sgt.Bergdahl is a deserter and therefore not entitled to have US troops risk their lives to rescue him. But that determination is for the US military to decide. And if it is found to be the case, an appropriate punishment can be meted out then by the proper authorities.

You never leave someone behind.

There is no Civil War in the US

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Contrary to what Henry Porter may think, there is no civil war going on in the US. Porter’s claim is based on the total number of firearm deaths in the country: The annual toll from firearms in the US is running at 32,000 deaths and climbing, even though the general crime rate is on a downward path (it is 40% lower than in 1980). If this perennial slaughter doesn’t qualify for intercession by the UN and all relevant NGOs, it is hard to know what does. But total deaths is not the only criteria for a civil war.

Other criteria can be found in the Commentaries to the Geneva Conventions (1949); in particular Common Article 3 of Geneva Convention III.

One is the existence of a “Party in revolt against the de jure government (which) possess an organized military force, an authority responsible for its acts, acting within a determined territory and having the means of respecting and ensuring respect for the Convention.” Second is that “the legal government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.” Third, there must be a recognition of the insurgents as belligerents by the state. Finally the insurgents must have the “characteristics of a state.” Obviously none of these things exist in the US: There is no “insurgency” occurring in the US.

But what of Porter’s more straightforward humanitarian claim? Is there some agreed upon international norm at stake in the number of gun deaths that occur in the US such that “intercession by the UN and all relevant NGOs” is necessary? The US – probably the most important political actor there is –  doesn’t appear to think such a norm exists. And who would enforce this norm anyway?

Though the situation of gun violence is the US is definitely tragic, it is not clear that the world should intervene.

Confusing the Jus ad bellum and the Jus in bello II

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Jennifer Moore argues over at the OUPblog that “The 1949 Geneva Conventions do not justify US missile strikes in Syria in response to chemical weapons attacks on the civilian population.” Well…yes, given that the Geneva Conventions govern how armed forces and civilians are to be treated during a war and NOT the justification for going to war, she is correct.

The 1949 Geneva Conventions do not justify US missile strikes in Syria in response to chemical weapons attacks on the civilian population – See more at: http://blog.oup.com/2013/09/syria-us-military-strikes-international-law-pil/#sthash.M0vXtYZF.dpuf
The 1949 Geneva Conventions do not justify US missile strikes in Syria in response to chemical weapons attacks on the civilian population – See more at: http://blog.oup.com/2013/09/syria-us-military-strikes-international-law-pil/#sthash.M0vXtYZF.dpuf