An Abomination Beyond Comprehension II (Draft).

Sub-title: "Operation Featherweight: Month 58, Week 4, Day 1."

A direct continuation of; https://watchitdie.blogspot.com/2019/03/an-abomination-beyond-comprehension.html

In that post I looked at the War Crimes and Crimes Against Humanity of which the Islamic State of Iraq and the Levant (ISIL) stand accused.

In their scale and severity those crimes go far beyond what any civilian justice system routinely deals with. Many of the offences which exist under military law and the Laws of War simply do not exist in civilian life.

The ISIL members accused of those crimes were also captured on a battlefield. In an area designated as a war zone by the United Nations (UN).

So while it is fortunately rarely used the procedure of how to deal with those ISIL prisoners is well established under the Laws of War. Specifically the Third Geneva Convention.

If there is confusion over the status of a prisoner Article 5 of the Third Geneva Convention requires that they are placed before a; "Competent Tribunal." In order to determine their status and how they are to be dealt with.

It is up to the legal entity conducting the tribunal, the; "Convening Authority" to determine the meaning of the term; "Competent Tribunal." In the sense that it must be the same procedure used to discipline its own personnel.

That raises the first question of how to deal with the captured ISIL members. Who will take on the role of the Convening Authority?

The obvious suggestion would be the Syrian Democratic Council (SDC) and its military wing the Syrian Democratic Forces (SDF/QSD). Who administer the Shangri-La area of Syria where these ISIL members were captured.

However it is far from clear that the SDC/SDF have the legal power to act as the Convening Authority.

The Laws of War were written and intended to be used between nation states. Nation states that are answerable to each other through a succession of international bodies. Currently the United Nations (UN).

The SDC are not a national government. Their military wing, the SDF, are not a national army. Instead they are a sub-national, regional power and a sub-national militia.

I, personally, have little problem with the SDC/SDF. However I can see significant legal problems in allowing a non-state actor or sub-national militia to act as a Convening Authority for the purposes of the Laws of War.

The first issue is the lack of accountability.

If, for example, Germany convenes a tribunal for Syrian nationals then Syria can raise any dispute with Germany in the conduct of that tribunal through the UN and its bodies. Such as the International Court of Justice (ICJ).

The SDC/SDF are not members of the UN. So if any dispute arises from the way it conducts a tribunal there is no clear mechanism for that dispute to be resolved. Short of further conflict and war.

If the SDC/SDF are allowed to act in this way it raises the question of why other non-state actors and sub-national militias are not also allowed to do so.

Just looking at Syria you have the Sudetenland area. This is under the control of Al Qaeda who have declared it to be an Emirate. A separate nation, apart from Syria. If the SDC/SDF can act as a Convening Authority in North-East Syria what is to say that Al Qaeda can't act as a Convening Authority in North-West Syria.

Then there is ISIL themselves. If we recognise the SDC/SDF as a Convening Authority and respect their decisions do we also have to recognise ISIL and respect its decisions wherever it chooses to establish itself.

Aside from the legal problems, just on a practical level I do not think that the SDC/SDF have the resources to act as a Convening Authority.

The World has already asked a lot from the SDC/SDF who have cleared ISIL from almost one third of Syrian territory. Alongside, and beyond that task the SDC/SDF also have to rebuild, secure and administer the Shangri-La area. All of this is being done on a budget of next-to-nothing.

I think it would be unfair of the World to also ask the SDC/SDF to take on the task of trying and punishing captured ISIL members. Captured ISIL members who stand accused of crimes against not just the civilians of Shangri-La or even Syria. But of crimes which are considered so serious to be against all of humanity.

The next obvious suggestion is that the United Nations (UN) act as the Convening Authority.

However the UN's default position is that it now refers matters such as this directly to the International Criminal Court (ICC). That also problematic for a host of reasons.

The ICC was born out of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The most recent of what have only been five, possibly six International Tribunals dealing with Crimes Against Humanity

The ICTY was established in 1991 to address allegations of War Crimes and Crimes Against Humanity in the myriad of conflicts that arose from the break-up of Yugoslavia throughout the 1990's. The so-called; "Balkan Wars."

Particularly in western nations the story of the Balkan Wars is often told in a very biased and over-simplified way. Essentially we're told that there were these; "Baddies" - the Serbs. They committed horrible atrocities against the; "Goodies" - the Croats and Bosniak Muslims.

As if often the case the reality is a lot more complicated then that.

Following the collapse of the Soviet Union the nation of Czechoslovakia decided it wished to separate into two new nations. Slovakia and the Czech Republic. This was achieved entirely peacefully through negotiation and compromise. The so-called; "Velvet Divorce."

At the same time the Croatia region of Yugoslavia decided that it to wanted to become an independent nation. Initially both Yugoslavia and what would become the nation of Croatia were prepared to allow this and set about negotiating the separation. In a similar way that Czechoslovakia peacefully negotiated its separation.

This though was unacceptable to the NATO nations, primarily the US. While it would create an independent nation of Croatia it would leave Yugoslavia largely intact. A large nation in eastern Europe that was still allied with Russia.

So the US backed Croat Ultranationalists and Neo-Nazis to overthrow the moderate Croat leadership which was engaged in negotiations with Yugoslavia. Having seized power these Croat Ultranationalists and Neo-Nazis declared war against Yugoslavia's Serb population.

This US-backed Croat declaration of war against the Serbs empowered Ultranationalists and Neo-Nazis on all sides. Leading to a decade of war which saw Yugoslavia break into six small nations and the Kosovo Province of Serbia. NATO is currently rushing to accept another of them, Macedonia, as a member.

So during the Balkan Wars the Serbs most certainly did commit numerous atrocities. However the Croats were the original aggressors and the Croats and the Bosniaks most certainly also committed numerous atrocities against each other and the Serbs.

From its inception the International Criminal Tribunal for the Former Yugoslavia (ICTY) had a clear political agenda. To vilify the Serbs while minimising and covering up the actions of the Croats and Bosniaks.

In mounting prosecutions this led to a very grubby deal being done. One which had nothing to do with the administration of justice.

The majority of prosecutions the ICTY would undertake would be against Serbs. However, in return, none of the Serbs would be sentenced to death while the Croats and Bosniaks went largely unpunished. Nations, such as the US, which backed the Croats and Bosniaks would not be prosecuted at all.

This is why the ICTY is the only International Tribunal dealing with Crimes Against Humanity which did not impose the death penalty. Meaning that the Srebrenica massacre is the only prosecuted genocide where the prepetrators were not executed.

The victims of the Srebrenica massacre were all Muslims. The failure to prosecute the perpetrators as harshly as, say, the perpetrators the Nazi Holocaust sends the unfortunate message that Muslim lives are not worth as much as the lives of followers of other religions.

Another side effect of the political agenda behind the ICTY is that it dragged on for nearly three decades. When in did finally conclude in 2017 it simply passed its remaining cases onto the ICC.

Having been formed out of the ICTY and having inherited many of the ICTY's cases the International Criminal Court (ICC) has also inherited many of the ICTY's political flaws.

The International Criminal Court (ICC) is also a very young and immature international body. It only came into being in 2002 and is currently only recognised by 125 of the 193 nations recognised as members of the UN.

The ICC has really only been able to get that far is through the support of the nations of the European Union (EU). In order to secure the support of the EU nations the ICC had to give up its ability to impose the death penalty for any offence, no matter how serious.

I think that all people involved in the ICC understand that it is a work in progress. The best that can be achieved at the moment. Rather than a fully functioning Court which can provide justice for all.

Instead the ICC has been limited to only prosecuting small, poor nations who cannot stand up for themselves. Aside from the cases it inherited from the ICTY the ICC has only ever prosecuted Africans, for crimes committed in Africa.

When it comes to larger, more power nations it is a very different story.

For example back in November 2017 the ICC's Chief Prosecutor Fatou Bensouda opened an investigation into America's conduct in Afghanistan. This was met with a furious response by the US which withdraw travel visas for Bensouda and other ICC officials.

Just on April 12th (12/4/19) the ICC announced that it was discontinuing its investigation to the US.

The issue of the ICC has also emerged as a barrier to the recognition of Palestine as a nation state and a full member of the UN. There is significant concern that the Palestinian Authority will follow through on its oft-repeated threats to use this new status to refer Israel to the ICC.

The concern about this is not that people think referring Israel to the ICC would not be valid. It's that nations like America would not allow the ICC to survive going after Israel.

The only case in which the ICC has issued an arrest warrant for a sitting Head of State on Crimes Against Humanity charges is of course against an African. Then Sudanese President Omar al-Bashir. Rather than being due to anything then President Bashir did this was more motivated by the ICC's frustration that is unable to go after Israel.

The ICC's deserved reputation as a Court which only goes after Africans means that many people have started to lose faith in it. Following the initial optimism of  its launch it is now more common for nations to withdraw from the ICC than to join it.

The idea behind the ICC is that it will become an enduring International Court. Existing long after the issue of ISIL have been dealt with. My concern is that ICC involvement will keep the issue of ISIL alive. Damaging the ICC for a long time to come.

A concern that is increased by the way that supporters of ISIL and associated groups have long attempted to weaponise the ICC. As a tool in their efforts to overthrow the Syrian state.

The ICC is a also intended as a Court of last resort. Something which is used only when there is no other entity available.

The issue with this is that the UN has already authorised another entity to deal with ISIL. Through the UN Security Council Resolution (UNSCR) 2170 (2014). Which established the US-led coalition against ISIL - Combined Joint Task Force: Operation Inherent Resolve (CJTFOIR).

UNSCR 2170 (2014) is issued under Chapter 7 of the UN Charter. This famously authorises the use of military force. However it actually authorises any measures up to and including the use of military force to maintain or restore international peace and security.

That includes measures which fall short of military force. Such as imposing sanctions, passing laws and launching criminal prosecutions. The conducting of Military Tribunals is just another part of normal military operations.

As such CJTFOIR has already been authorised to and should act as the Convening Authority.

Formally CJTFOIR is known as; "The Global Coalition." Although it is US-led it is made up of 79 members. Encompassing a wide variety of standards of rule of law and human rights.

In acting as Convening Authority the CJTFOIR coalition is able to define; "Competent Tribunal" in terms of the lowest standard accepted by one of its members.

Looking at the list of Coalition members that standard can be incredibly low. Just this week Saudi Arabia simultaneously executed 37 convicted terrorists. Including one who was literally crucified.     

I am very tempted to say that in dealing with captured ISIL members CJTFOIR adopts the standard of the Turkish Military. After all Turkey is the most likely to oppose any punishment of ISIL members. Using their standard gives them the least opportunity to object.

However I have not had the opportunity to research the rules of procedures of the Turkish military.

So instead I'm going to recommend that CJTFOIR adopts the standard of the US military. Although there are some variations this is generally the accepted standard of the NATO members. Including EU nations.

The procedures of the US military are also widely, publicly available. Published in the "Manual For Courts-Martial." Which, as legal textbook's go, is very easy to read.

The most widely used "Competent Tribunal" employed by the US and other, equivalent militarys is known as; "Non-Judicial Punishment Tribunal." This is extremely simple in its operation.

This type of Tribunal is presided over by a single military officer. Known as a Presiding Officer.

Recent changes to the rules mean this presiding officer must be advised by a military lawyer. Another military officer who is also a qualified lawyer.

However their role is merely to advise on points of law, rather like a Court Clerk. The decisions and rulings of the Tribunal are made exclusively by the single Presiding Officer.

The first phase of the Tribunal sees the accused appear before the Presiding Officer. They are then informed of the charges against them.

At this point the accused is able to seek legal advice, provided to them by the Convening Authority.

However the accused does not have a right to legal representation. While the legal advice may well be provided by a lawyer that lawyer does not represent the accused at the Tribunal.

The accused has the option of employing an independent lawyer or other advocate to represent them at the Tribunal. However that is done entirely at their own expense, with no cost to the Convening Authority.

The second phase of the Tribunal gives the accused the option of either admitting the offence or presenting evidence in their defence or mitigation. This is then considered by the Presiding Officer. Often in a matter of minutes.

The third phase of the Tribunal sees the accused being told whether they have been found guilty of the offence and what their punishment is.

As the name suggests a Non-Judicial Punishment Tribunal is not considered a criminal proceeding.

As a result they are used for only the most minor of offences against military law and can only hand out the most minimal of punishments. Therefore they are not sufficient for the types of crimes captured ISIL members stand accused of.

It also means that at the end of the Tribunal the accused is given a choice. To accept the finding of the Tribunal and its punishment or to seek a full Courts-Martial.

In the US military there are three types of Courts-Martial Tribunal. Summary, General and Special.

Summary Courts-Martial Tribunal: This is almost identical to a Non-Judicial Tribunal. It is presided over by a single military officer. With the advice of a military lawyer.

The only, barely noticeable difference is that it is considered a criminal proceeding. As a result the accused does have the right to legal representation, provided by the Convening Authority. They also have a right to appeal the verdict.

In return for these increased rights for the accused a Summary Courts-Martial Tribunal can deal with more serious offences. It can also impose more severe punishments.

However it is still only able to deal with the more minor offences meaning it is insufficient for the type of crimes captured ISIL fighters stand accused of.

At around 16:40 on 25/4/19 (UK date) there is obviously more to follow.

Edited at around 15:20 on 26/4/19 (UK date) to copy & paste from another tab;

General Courts-Martial: This is almost identical to what most people would recognise as trial in a civilian Court. The only obvious difference is that all those involved will be wearing military uniform.

A General Courts-Martial is presided over by a Military Judge. Known as the Presiding Judge.

This is someone who holds an officers rank in the military of the Convening Authority. They must also be a qualified lawyer, as defined by the country of the Convening Authority. So if they are a member of the US military they must have passed the criminal bar in at least one of the US states.

With one exception the role of the Presiding Judge is not to determine the guilt or innocence of the accused. Instead it is their job to oversee the trial, making sure that the rules are followed and order is kept.

Proceedings at a General Courts-Martial are adversarial. This means the prosecution lays out its allegations of guilt. Then the defence lays out a rebuttal to the prosecution's accusations.

As it is in a civilian trial this is done through the presentation of evidence and the calling of witnesses. Along with the cross-examination of the presented evidence and witnesses.

The prosecution has to be represented by a Military Lawyer. That is someone who holds an officers rank in the military of the Convening Authority and is also a qualified lawyer. As defined by the country of the Convening Authority.

In their defence the accused has the right to be represented, free-of-charge, by another Military Lawyer. Again this is someone who holds an officers rank in the military of the Convening Authority and is also a qualified lawyer. As defined by the country of the Convening Authority.

The accused also has the right to be represented by a person of their own choosing. That though is done at no cost to the Convening Authority. The person the accused chooses also has to be approved by both the Convening Authority and the Presiding Judge.

The case which has pushed this issue into the spotlight is that of Shamima Begum.

It seems unlikely that her British lawyer, Tasnime Akunjee, would be granted approval to represent her at a Military Tribunal. Although qualified as a lawyer in the UK he appears to have never served in the military nor has any experience of military law. That lack of experience would likely undermine his clients defence.

At a General Courts-Martial the guilt or innocence of the accused is decided by a Jury. This has to be made up of a minimum of at least five members. Normally these Jury members have to be people who hold the an officers rank in the military of the Convening Authority.

The exception is if the accused is of enlisted rank. Meaning they are not an officer. In that case they can insist that at least one third of the Jury is made up of members who are of enlisted rank in the military of the Convening Authority.

As within civilian trials the decision of the Jury has to be unanimous. There is though the option for a majority verdict to be accepted if only one or two members of the Jury are in disagreement with the other members of the Jury.

A General Courts-Martial can deal with any offence under military law, including the Laws of War and the Rome Statute on Crimes Against Humanity. Regardless of their severity. A General Courts-Martial can also impose the maximum sentence allowed for any particular offence.

However in imposing the death penalty a General Courts-Martial must convene with a Jury of no fewer than sixteen members. Of the composition mentioned above. It is only the Jury, rather than the Presiding Judge which can impose the death penalty.

There is one exception to cases before a General Courts-Martial being decided by a Jury.

The accused has the right to waive their right to a Jury trial. However only the accused can decide to do that. It is not something that can be imposed on them by the Convening Authority, the Presiding Judge or the prosecution.

If the right to a Jury trial is waived then the case is decided by a panel of three Judges.

At the head of this panel is a Presiding Judge. Someone who holds an officers rank in the military of the Convening Authority. They must also be a qualified lawyer, as defined by the country of the Convening Authority.

The second member of the panel is someone who holds an officers rank in the military of the Convening Authority. However is not a qualified lawyer.

This can also someone who holds the rank of Warrant Officer or Non-Commissioned Officer (NCO) in the military of the Convening Authority. That is someone who has the responsibilities of an officer but achieved it by rising through the ranks. Rather than attending an officer training school such as Westpoint or Sandhurst.

The third member of the panel depends on the status of the accused. If they are of officer rank then the third panel member must be an officer or Warrant Officer/NCO. If the accused is of enlisted rank they can insist that the panel's third member is also of enlisted rank.

In matters of trial procedure, such as allowing a piece of evidence, the Presiding Judge alone makes the decision.

In determining guilt or innocence the decision of the panel should be unanimous. However a majority of two against three can be accepted. Unless it is the Presiding Judge who is in the minority. In which case a mis-trial is declared.

As there is no Jury General Courts-Martial cases heard in this way cannot impose the death penalty. Regardless of the nature and severity of the offence.

Special Courts-Martial: This is a streamlined version of a General Courts-Martial, used when there is a need to process cases quickly.

As Special Courts-Martial is almost identical to a General Courts-Martial where the right to a Jury trial has been waived.

The case is decided by a panel of three Judges.

At the head of this panel is a Presiding Judge. Someone who holds an officers rank in the military of the Convening Authority. They must also be a qualified lawyer, as defined by the country of the Convening Authority.

The second member of the panel is someone who holds an officers rank in the military of the Convening Authority. However is not a qualified lawyer. This can also someone who holds the rank of Warrant Officer or Non-Commissioned Officer (NCO) in the military of the Convening Authority.

The third member of the panel depends on the status of the accused. If they are of officer rank then the third panel member must be an officer or Warrant Officer/NCO. If the accused is of enlisted rank they can insist that the panel's third member is also of enlisted rank.

In matters of trial procedure, such as allowing a piece of evidence, the Presiding Judge alone makes the decision.

In determining guilt or innocence the decision of the panel should be unanimous. However a majority of two against three can be accepted. Unless it is the Presiding Judge who is in the minority. In which case a mis-trial is declared.

Proceedings are adversarial. This means the prosecution lays out its allegations of guilt. Then the defence lays out a rebuttal to the prosecution's accusations.

As it is in a civilian trial this is done through the presentation of evidence and the calling of witnesses. Along with the cross-examination of the presented evidence and witnesses.

The prosecution has to be represented by a Military Lawyer. That is someone who holds an officers rank in the military of the Convening Authority and is also a qualified lawyer. As defined by the country of the Convening Authority.

In their defence the accused has the right to be represented, free-of-charge, by another Military Lawyer. Again this is someone who holds an officers rank in the military of the Convening Authority and is also a qualified lawyer. As defined by the country of the Convening Authority.

The accused also has the right to be represented by a person of their own choosing. That though is done at no cost to the Convening Authority. The person the accused chooses also has to be approved by both the Convening Authority and the Presiding Judge.

Special Courts-Martials are generally used for intermediate offences. Things with are too serious to be dealt with by a Summary Courts-Martial but not so serious they have to be dealt with by a General Courts-Martial.

In dealing with the more serious offences a Special Courts-Martial is not able to impose as severe punishments as a General Courts-Martial would.

Special Courts-Martials do not include a Jury. So normally cannot impose the death penalty, regardless of the serious of the offence.

There is though an accepted exception to this. When so-called; "Military Exigency" requires. That is to say there is an urgent need or difficulty of circumstances which mean the usual rules are impossible to follow.

The exact meaning of Military Exigency is something which is decided on a case-by-case basis, in accordance with precedent and relevant case law. Even if I had time to study them I doubt I could get access to those precedents and case law.

However Military Exigency must go beyond mere inconvenience. Such as it would be expensive to do so. The mere fact that a Tribunal is being held in a war zone would not, on its own, satisfy the criteria of Military Exigency. This is the military we're talking about after all.

I think though there is a very strong argument that Military Exigency does apply in this situation.

CJTFOIR have the authority to operate in Syria without the permission of the Syrian state under UNSCR 2170 (2014). However that only gives them the authority to act against ISIL, Al Qaeda and associated groups. It most certainly does not give them the authority to act against the Syrian state.

This is a very unusual situation militarily. Normally when an armed force enters a country without that country's permission its purpose is clear. To fight and defeat they armed forces of that nation. Here CJTFOIR is trying to avoid conflict with Syria's armed forces.

That effort to avoid conflict represents a Military Exigency. It has required CJTFOIR to keep its operational footprint within Syria to the absolute minimum needed to complete the task it has been authorised to do by UNSCR 2170 (2014).

One example of how CJTFOIR has minimised its operational footprint in Syria is in how it deals with its own battlefield casualties.

If a member of the NATO force in Afghanistan is wounded on the battlefield then the aim is to have them attended to by Casualty Evacuation helicopter within 10 minutes.

That Casualty Evacuation helicopter is equipped with the type of trauma team you would expect in any leading hospital. Staffed by Doctors, nurse and paramedics. Equipped with advanced medical technology such as monitoring, surgical and blood transfusion equipment.

The aim is then to have the casualty transported by that helicopter to a fully equipped hospital within one hour. Fifty minutes after being attended to by the Casualty Evacuation helicopter.

Throughout the conflict in both Syria and Iraq there has been a long running debate over whether CJTFOIR should provide this level of medical support.

The argument against is that not only do you have to supply the Casualty Evacuation helicopter you also have to provide at least two crews. So it can operate 24 hours a day. You also have to provide at least two ground and maintenance crews to keep the helicopter operating 24 hours a day.

Once you've brought in all those crews you then need to bring in a logistical team. To feed, water and house the personnel along with keeping the helicopter supplied with fuel and spare parts. Once you've brought in the crews and logistics teams you then need to bring in force protection to provide them all with security.

So the task of providing one Casualty Evacuation helicopter quickly leads to you having to deploy thousands of troops. That rapidly changes CJTFOIR's mission from that of a support role to one of an occupying force.

In order to minimise the risk of conflict with the Syrian state CJTFOIR has decided not to provide that level of medical support. In order to keep its operational footprint as small as possible.

As a result CJTFOIR has seen casualties who would be expected to survive in Afghanistan die in Syria. All in the name of Military Exigency.

If CJTFOIR is able to invoke Military Exigency in how it cares for its own casualties it is certainly able to invoke Military Exigency in how it treats enemy prisoners.

Now being seriously behind with my reading I don't have an exact figure of how many ISIL members are being held prisoner in the Shangri-La area of Syria. However I know that at a minimum it is over several thousand.

All of these cases potentially carry the death penalty. So normally would have to be tried by General Courts-Martial.

For each case CJTFOIR would have to deploy to the Shangri-La area of Syria a minimum of three officers to act as Presiding Judge, Prosecution advocate and Defence advocate. Along with various Court officers such as recorders and bailiffs. CJTFOIR would also have to deploy sixteen officers/enlisted to act as members of the Jury.

Obviously Judges along with Prosecution and Defence advocates can act in multiple cases. Even in civilian cases it is considered a part of a Court's normal operation.

I am not aware of a specific rule that says Jury members can only act in one case. However it would certainly look very bad if the same sixteen member Jury decided every single case. In the interests of justice being seen to be done you would want to use a different Jury for each case.

So to process 3,000 cases through General Courts-Martial you're talking about CJTFOIR having to deploy some 48,000 officers/enlisted to Syria just to act as Jury members. Along with the support troops needed to feed, water and house them along with providing security.

That would massively increase CJTFOIR's operational footprint. Turning into an occupation force and massively increasing the risk of conflict with the Syrian state.

So with CJTFOIR acting as the Convening Authority these captured ISIL members should be processed by Special Courts-Martial Tribunals. 

Special Courts-Martial Tribunals which, due to Military Exigency, have the added power to impose the death penalty.

The other change I would consider is in the composition of the third member of the Tribunal's panel.

As I've said in normal circumstances this is determined by the status of the accused. If they hold an officers rank then the third panel member has to also be of an officers rank. However if the accused is of enlisted rank then they can require the third panel member is also of enlisted rank.

The purpose of this is so there is at least one member of the panel who is able to see things from the accused's perspective. In deciding the ISIL cases the issue of rank is really non-applicable.

So I propose allowing that third member of the panel to be a civilian member of the local population.

Someone who lived through ISIL's occupation so is able to see how the accused could be swept up into or coerced into joining ISIL.

Part three to follow.

15:45 on 26/4/19 (UK date).