An Abomination Beyond Comprehension III (Draft).

Sub-titled; "Operation Featherweight: Month 58, Week 4, Day 5"

A direct continuation of Part 2; https://watchitdie.blogspot.com/2019/04/an-abomination-beyond-comprehension-ii.html

In that post I looked at how captured ISIL members have to be dealt with under the Laws of War. Specifically the Third Geneva Convention.

This will see the US-led coalition - Combined Joint Task Force: Operation Inherent Resolve (CJTFOIR) act as a Convening Authority. Trying those captured members of ISIL through a Military Tribunal mechanism similar to the US military's Special Courts-Martial.

Once convened that Military Tribunal must answer two questions;

Is the Accused a Civilian or a Combatant?

The definition of; "Combatant" goes far beyond whether the individual participated in any fighting. Or even if they themselves carried weapons.

One of the most famous Military Tribunals is the Nuremberg Military Tribunal (NMT) which dealt with the crimes of Nazi Germany at the end of the Second World War. It was actually made up of three sets of Military Tribunals.

The second of these is known as; "The Doctors' Trial." It dealt almost exclusively with medical doctors, 20 of 23 defendants. The third round of the NMT is known as; "The Judges Trial." It dealt exclusively with Judges and Lawyers who had presided over and acted in civilian trials.

Article 4 of the Third Geneva Convention provides a non-exhaustive list of; "Persons who accompany the armed forces without actually being members thereof" who are considered combatants. Such as supply contractors and providers of services responsible for the welfare of the armed force.

The legal test of whether an individual is combatant is whether they have provided material or moral support to the armed force in question. This precedent was confirmed through the conviction of Charles Taylor by the International Criminal Court (ICC) in 2012.

So the question over foreign ISIL members has never really been over whether they should be prosecuted in their native country?

It's whether people who remain in those native counties but have provided material or moral support to ISIL should be extradited to Syria to face trial by Military Tribunal?

In Britain the issue of captured ISIL members has been highlighted by the case of Shamima Begum.

However in the Republic of Ireland it has been focused on the case of Lisa Smith. A former Corporal in the Irish Defence Forces who travelled to join ISIL in 2014.

Indications are that the Republic of Ireland is going to attempt to help Smith evade justice by rescuing her from Syria. The Irish Taoiseach (Prime Minister) Leo Varadkar has declared that simply being a member of ISIL is not enough for Smith to be considered a combatant.

In making that declaration Taoiseach Varadkar is simply incorrect on a point of law.

If the Tribunal determines that the accused is a civilian then civilian law is to be applied to them.

This includes all the usual civilian crimes such as murder, assault, theft etc. It also includes all the protections afforded to civilians such as the Universal Declaration of Human Rights (UDHR).

Military Tribunals actually do have the authority to try civilians for civilian crimes. However the also have the option not to, leaving those cases up to local civilian Courts.

Justice is something which is always best decided by the communities in which the perpetrators and the victims live. I don't think the people of North-Eastern Syria particularly want a load of outsiders coming in telling them how to deal with every thief of every fist fight that breaks out between neighbours.

So once an individual has been determined to be a civilian I don't think it is in anyone's interest to have CJTFOIR's Military Tribunal mechanism pursue them any further. Any civilian crimes they may have committed are best dealt with by the local Syrian Democratic Council (SDC).

If the Tribunal determines that an individual is a combatant they are stripped of the protections afforded to civilians. They are then to be dealt with under military law.

Meaning the Tribunal then needs to answer the second question;

Is the Accused a Lawful Combatant or an Unlawful Combatant?

The meaning of the term; "Lawful Combatant" is defined by Article 4(A)(2) of the Third Geneva Convention.

One requirement of a Lawful Combatant laid out in Article 4(A)(2)(b) is that the armed force of which they are a member meets the condition; "That of having a fixed distinctive sign recognizable at a distance."

Even on this most simply of tests I think that ISIL fail miserably. As their battle emblem or; "fixed distinctive sign" they use the Islamic declaration of faith or "Shahada" written in white on a black flag.

As one of the five pillars of Islam this Shahada is common to all Muslims and the black flag with white writing is used by many Muslims who have absolutely nothing to do with ISIL. As such it can hardly be described as a sign distinctive to ISIL.

ISIL are also distinctly un-Islamic. Therefore their use of the Shahada as a battle emblem could well constitute the War Crime of flying a false flag.

However the most important condition of a Lawful Combatant is Article 4(A)(2)(d); "That of conducting their operations in accordance with the laws and customs of war." This means that in order to be considered a Lawful Combatant you must uphold all the other Laws of War.

This can be a question of an individuals own actions. If a single soldier breaks any one of the Laws of War, such as murdering a civilian or prisoner then, through that individual act, that single soldier becomes an Unlawful Combatant.

However the question is more commonly applied to the behaviour of the armed force as a whole. Rather than the actions of an individual member.

Armed forces are generally large organisations. The US military has around 1.3 million active members while the British military currently has around 150,000 active members.

Within any large organisation or society there are always going to be one or two people who think they can get away with breaking the rules. Or under stress make an error of judgement which sees them break the law.

In 2011 Britain's Royal Navy faced one such case. Marine Sergeant Alexander Blackman, known as; "Marine A" illegally shot and killed a Taliban prisoner in the Helmand Province of Afghanistan.

The US Navy is currently dealing with a similar case. Directly relating to the war against ISIL.

Navy SEAL Special Operations Chief Edward Gallagher is accused of various War Crimes committed in the Iraqi city of Mosul in 2017. Including wilfully shooting at and killing civilians and murdering a captured ISIL member.

The facts of the Gallagher case have yet to be determined. However both his and Marine A's actions appear to be members of the US and British military's acting as Unlawful Combatants.

It is not possible though to look at those to incidents and declare either the US or British military to be an unlawful armed force as a whole and therefore all those who serve in them to be Unlawful Combatants.

Instead it is a question of the culture which exists within the armed force in question. How it and person(s) commanding it respond to these individual acts of unlawful behaviour.

One of the key pieces of information regarding Sgt Blackman's actions came from a helmet camera worn by another member of the patrol. Before killing the prisoner Sgt Blackman ordered this helmet camera to be turned off.

However the Marine in question decided what Sgt Blackman was about to do was both illegal and morally wrong. He was so appalled by this that he secretly turned the camera back on in order to collect evidence of Sgt Blackman's wrongdoing.

The other Marines on the patrol then reported Sgt Blackman's behaviour to their commanding officers. Those commanding officers were equally appalled by Sgt Blackman's behaviour so had him arrested and put on trial before a Courts-Martial.

Using the evidence from the helmet camera Sgt Blackman was convicted of murder and sent to prison.

Likewise the other SEALs in Chief Gallagher's unit decided that his actions were both illegal and morally wrong. So they reported him to their commanding officers.

Those commanding officers were equally appalled by Chief Gallagher's behaviour so had him arrested. He is currently in detention ahead of a Courts-Martial scheduled for the end of May 2019.

So while you can point to these examples of individual members of the US and British armed forces acting as Unlawful Combatants it is clear that neither armed force has tolerated their actions. Instead where wrongdoing has been uncovered it has been punished under the appropriate procedures.

The sheer number of War Crimes and Crimes Against Humanity of which ISIL stand accused of alone points to a culture of the group tolerating unlawful behaviour.

Here though I'm just going to look at one specific incident, the killing of Jordanian pilot Lieutenant Muath al-Kasabeh. On or around January 3rd 2015 (3/1/19). A captured member of the Jordanian Air Force Lt al-Kasabeh should have been considered a prisoner under the Laws of War. Likely making his killing the War Crime of murder.

Like others captured by ISIL it is alleged that Lt al-Kasabeh was held by a dedicated unit within the group. Sometimes referred to as; "The Beatles." It's alleged one of that unit's specific tasks was to plan the killing of its captives. As part of this task was to conduct mock executions of prisoners in order to prepare them for their actual execution.

That dedicated ISIL unit were not the only ones present at Lt al-Kasabeh's death. It was also attended by several hundred other ISIL members, brought in to form part of the spectacle.

The killing itself was filmed and the recording handed to ISIL's Emni intelligence unit. They edited footage of the killing together with multiple of the group's propaganda claims.

Finally the completed video was released globally via ISIL's Amaq propaganda unit.

As such Lt al-Kasabeh's killing was clearly not the actions of an isolated ISIL member going too far in the stress of battle. Instead it was a multi-layered conspiracy across multiple elements of ISIL's command structure.

Therefore it is certainly possible to argue that ISIL has/had a culture of tolerating unlawful behaviour.

It's possible to go even further than that and claim ISIL has/had a culture of encouraging unlawful behaviour.

Armed forces such as the US and British militarys provide extensive training and publish guides to make sure their members know what protections are afforded to civilians and prisoners. ISIL stand accused of publishing a guide instructing its members how to rape civilians they have taken prisoner.

Theoretically the first question, of whether the accused is a civilian or a combatant, could be addressed by a Summary Courts-Martial Tribunal mechanism. Or even a Non-Judicial Punishment Tribunal. In front of a single individual of officers rank in the military of the Convening Authority.

After all the worst outcome is that the accused is found to be a Combatant. Meaning they are held in detention ahead of a second Tribunal to determine whether they are a Lawful or Unlawful Combatant.

However it is likely that the question of whether ISIL, as a whole, is a lawful or unlawful armed force and therefore all of its members are Lawful or Unlawful Combatants will be decided at the first case. It might even be decided by a separate Tribunal of ISIL as a legal entity rather than of any individual member.

That precedent will then be applied to all subsequent cases.

Meaning that in effect that by ruling someone as a Combatant because they are a member of ISIL then you are also, almost automatically, ruling them to be an Unlawful Combatant.

So in practical terms both questions will have to be addressed by the same Special Courts-Martial Tribunal mechanism.

Part 4 to follow.

17:00 on 29/4/19 (UK date).