Did Hamdan actually resolve the status of the US-AQ conflict?

Ken Anderson has some very thoughtful comments in response to the earlier discussion regarding whether GPW Article 129 has any application in the CA3 context (short answer: no, it does not).  I'm generally in agreement with his assessment, but  I do want to raise one question that I think is the subject of serious debate: did Hamdan actually hold that the US-AQ conflict is governed by CA3 (rather than CA2)?  I read Ken's post to answer that question affirmatively, and indeed that had been my initial impression of Hamdan.  But Stevens did at least purport not to actually decide that issue, describing himself as instead deciding that CA3 would apply even if CA2 did not, and that in either case the President's commission plans were in trouble.  On the other hand, the substance of Stevens's explanation as to why CA3 would apply does make it hard to then argue that the conflict is instead a CA2 conflict.

Any thoughts on which is the better reading? 

Comments

[Dave Glazier]

I think on careful reading the Hamdan opinion does state in a reasonably straight-forward way that it does NOT decide whether Hamdan was captured in a conflict to which the full Conventions apply, just that at a MINIMUM CA3 applies (See 126 S. Ct. at 2795). The Court implies without any detail that the result is the same, that is, military commissions falling short of Common Article 3 (CA3) standards would also fail the test of the full Conventions and that it is thus sufficient for its purpose to conclude that CA3 applies.

That said, I just can't see a U.S. court overcoming all the possible hurdles to finding the full Conventions apply, both due to facial issues with the application of Common Article 2 defining international armed conflict to which the full Conventions apply AND the fact that even if the full Conventions were held applicable, the individuals challenging the commissions would still have to establish that they fell within meaningful protections. That is, they need to qualify as a POW under article 4 of the Third Convention on POWs, or as a "protected person" under the civilian convention (Geneva IV). It's unlikely the irregular combatants at issue in the war on terror can meet the Geneva III standard, and Geneva IV generally doesn't protect nationals of nations that have normal diplomatic relations with the detaining power.

[Bobby Chesney]

Thanks for your thoughts, Dave. As you know, I agree with you regarding the impossibility of al Qaeda members getting anywhere under GPW article 4, and I also concur as to the diplomatic-relations exception to GCIV protected-person status. The Taliban fighters, it seems to me, present a tougher case on either account, with strong arguments on both sides. Do you have a view on this one?

[Kenneth Anderson]

I'm rereading Hamdan in light of Bobby's good question above and will post something soon. But Bobby's right - Stevens says he's not deciding that issue. But at least initially - maybe I'll change my mind - it seems to me what he says and does in actually analyzing the language of the conventions is something different - a factual finding as to the nature of the conflict under the language of the convention. But I need to reread it before saying something more definite.

[Charles Gittings]

Ya, well I continue to disagree re the exceptions in GC4 art. 4. To hold that the existence of "normal relations" can be used as legal pretext for discarding the rights of a prisoner entirely so that they may be tortured and tried by a kangaroo court is to demonstrate conclusively that normal relations do not in fact exist.

Or to paraphrase Forrest Gump: normal is as normal does. A pretence of normality is just a fraud.

The only penalty for "unlawful belligerency" is to be treated as an ordinary criminal, and that means due process of law. The only purpose of the Bush administration's policies is to deny due process, permit torture, and to punish people on the basis of guilt by association and suspicion -- in short, to commit war crimes.

Has General Orders No. 100 (The Lieber Code) ever actually been rescinded?

The Martens clause applies, Hague IV 1907 applies, and the IMT Charter applies. There is nothing unclear about 18 USC 2441. Or or CAT and ICCPR for that matter.

And gee, the United States Constitution applies too come to think of it, and all those self-evident truths which lying hypocrites like George Bush's speech writers are so fond of -- har de har har.

The current bill in Congress isn't a law at all, it's just another war crime.

It's really quite absurd: the Bush administration is desparately seeking a refuge for their outrageous crimes against humanity in the 5th, 8th, and 14th amendments to the US Constitution. That fact alone speaks volumes for the sheer dishonesty of these criminals and their party, and their absolute contempt for the rule of law.

Justice Stevens wrote an article back in the 50's that provides some strong clues about where he's coming from:

A. Dunham & P.B. Kurland (eds.), MR. JUSTICE, University of Chicago Press (1956); chapter MR. JUSTICE RUTLEDGE by John Paul Stevens, pages 177–202. Available at:

http://www.justicescholars.org/pegc/MJR.html

The dissents of Justices Murphy and Rutledge in Application of YAMASHITA, 327 U.S. 1 speak here too.

[Dave Glazier]

Bobby - you're absolutely right that the Taliban present a much tougher issue, and one that is potentially fact specific. First, of course, IF common article 2 defining international armed conflict is going to apply to any part of the "war on terror" as defined in the 2001 Authorization for Use of Military Force, it would seem to be the conflict with Afghanistan, which certainly was a nation-state (and party to the Geneva Conventions) in the past and arguably still was in 2001.

IF Afghanistan was still a state, then it's hard for me to see how any group had a stronger claim to being its govt than the Taliban. And if the Taliban's political organization was the govt, then the Taliban's armed contingent was likely either the armed forces of the nation, or at least a militia and in any event could thus qualify for POW status under Article 4 if the criteria of that article are met.

As you well know, Article four, para A.(2) then applies the famous four criteria for militias to qualify for POW status:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

This now seems to become a fact specific inquiry as to whether these conditions were met; the President says they were not but I think the inquiry probably needs to be made on at least a unit level vice national one, and I've seen plenty of pictures showing Taliban groups in what appear to be matching military vests, or headgear, etc. and they all seem to be carrying arms openly (heck in some parts of Afghanistan it seems from public images that every male over the age of 12 or so probably carries arms openly regardless of their politico-military affiliation). That doesn't answer the points about command structure and following the law of war, of course. At best I'd say that the issue is more complex than the Administration portrays it and that the Executive's summary disposition of it should be revisited in any applicable Article 5 tribunals/CSRT/or any military commission or other court trying a Taliban for law of war violations.

If the Taliban is viewed as the armed forces of Afghanistan, a literal reading of Article 4(1) says they qualify as POWs, but of course law of war scholars appreciate that the history of the development of law of war norms in general, and the history of the Convention drafting in particular, both support the idea that unstated in the facial language of the treaty is the long-standing understanding that "armed forces" by definition must comport with the same four criteria. So treating the Taliban as an "armed force" still raises the same legal hurdles for POW status as treating it as a militia.

Something ignored in the current debate, however, is whether the Geneva III article 4 standards remain the right ones. First, of course, Additiona Protocol I of 1977 (which the U.S. has refused to ratify) accomodates non-traditional combatants by only requiring they carry arms openly while conducting actual operations (preparatory movements and actual attacks). On the one hand, the U.S. is on record as opposing this provision, contending it could entitle terrorists to POW status. But the complicating and seemingly overlooked factor is the long history of U.S. support for the Mujahidin (sp?) through its years of conflict against the Soviets and the Northern Alliance against the Taliban. If the latter group are not lawful combatants as the U.S. apparently wants to contend now, then the former two groups cannot logically be either. And that means that U.S. officials who aided and abetted those movements, let alone fighting with them in matching attire, are essentially guilty of the same conduct that we wish to prosecute others for today. There's thus a real need for careful scholarly treatment of this issue, as well as exploration of the current state of the right to resist (e.g., how much of the resistance movement in Iraq is terrorism and how much is legitimate under CIL?). I'm probably overlooking some work, but I'm not aware of any coherent effort to look at these issues by anyone truly conversant in the history and full scope of the law of war.

Bottom line on the Taliban -- the issue is extremely complex, and in part fact-specific, and I wouldn't claim at this point to know the right answer. I certainly would be most interested in hearing other the views of anyone else who has taken the trouble to analyze the situation more carefully and considered all the many issues involved.

[Jeremy Telman]

I agree with much of Dave's analysis above, but I think I would foreground the Article 5 tribunal issue. As Dave correctly states, whether individual Taliban detainees are entitled to POW status is a fact-specific inquiry. Is there any dispute that the proper mechanism for such an inquiry is an Article 5 tribunal and that the Bush administration has not complied with international law by failing to provide for such tribunals?

I am also puzzled that Afghanistan's statehood is treated as a debatable issue. It was a member of the UN in 2001. It was listed as a party to numerous multilateral treaties. What argument is there that, as a matter of international law, Afghanistan was not a state in 2001?

[Bobby Chesney]

Regarding Article 5, questions of treaty interpretation arise, and in turn so does a question about the allocation of interpretive authority in our domestic system. The interpretive issues are these: is it permissible to make a group-based assessment of the Article 4 factors discussed by Dave above? And if so, should the decision be made for some or all of the factors at the command/national level (thus ensuring uniformity of conclusions). The text, in my view, is ambiguous on these issues, and my impression is that other sources are conflicted to some degree. In any event, these questions are complicated by the fact that the Administration has taken a position on them. For purposes of our domestic legal system, there is a strong argument that executive treaty interpretations are entitled to a substantial degree of deference from the courts, should the issue ever actually be litigated. Now Hamdan rather clearly does not give such deference in its CA3 analysis, which certainly undermines the deference argument in related contexts such as this. On the other hand, the detainee legislation inlcudes a provision purporting to expressly recognize the President's interpretive authority vis-a-vis the Geneva Conventions. Very interesting indeed. So my response to Jeremy's interesting comment is, I suppose, that the Article 5 issue is at least debatable. Please note that I'm not saying it was wise not to go the Article 5 route, or that the interpretation described above is necessarily correct.

[Charles Gittings]

Well deference is inherently contextual: there's no need tor defer to claims that 1 + 1 = 3 or the moon is made of green cheese. And that is exactly the problem: a fraud is not an interpretation, and the administration's arguments on these issues are plainly fraudulent.

The only basis for holding someone indefinitely as a combatatnt is POW status. There is no basis whatever for denying anyone due process of law or subjecting them to torture. The US Constitution forbids bills of attainder, and that would include one issued by executive fiat.

I have to question that the situation even is a war before I could ever credit any of the administration's arguments. Who is the war against?

What the administration and the AUMF literally claim is that the war is against any person the President "determines" is x, y, or z, regardless of the accuracy or truth of that determination.

That's a complete repudiation of all law, and seriously:

Where is that incorrect?

It's one thing to say we are at war with a state or a group with a strong territorial identity like the Taliban or Tamil Tigers. But to say we are at war on anyone who is a particular type of criminal merely on the unreviewable say-so of one man is a total repudiation of the Constitution and all law.

Could Bush "determine" that a two-year-old girl in Chicago is a terrorist and order an airstrike on the city to take her out?

That is in fact the administration's claim.If anyone thinks otherwise, pray tell: what law stands in the way of it?

That's the real question in all of this, and I've been asking it for five years now. I have yet to get an answer from anyone who support the adminstration.

The law must be reasonable and intelligible. Gibberish or fraud is not and cannot be law. The idea that the law is just a window dressing for the excercise of absolute powers of a monarch or dictator is what we revolted against in 1776.

Geneva has a purpose, and the policies of the Bush administration are plainly intended to frustrate that purpose in violation of our own laws: they merit no defference whatever.

[Jeremy Telman]

Bobby, I don't see the ambiguity. The Conventions speak of "persons" not groups. But I don't know much about what the practice has been. I'm not sure what difference it makes, as no Article 5 tribunal has determined either that the Taliban as a whole or that individual Taliban combatants are or are not entitled to POW status.

While courts have grown more deferential to Executive interpretations of treaties since World War II, David Sloss has a interesting article that argues that courts were not the least bit deferential during the Early Republic. Here is a link to an abstract: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=889924. Deference to Executive interpretations of treaties does not seem to be constitutionally compelled.

Even if Sloss is correct, the argument in favor of deference to the Executive Branch in foreign affairs might still be compelling as a matter of institutional competence. Presumably, expertise on issues of national security law and international law resides in the State Department or the Pentagon. But the Bush Administration has routinely favored arguments coming from the Justice Department, which can make no more claim to expertise in this area than can the other branches, even when those arguments were gainsayed by the State Department.

I return to a point I made in a previous post. The Vienna Convention on the Law of Treaties requires that treaties be interpreted with an eye to their object and purpose. Has any good research been done about the object and purpose of the Conventions in this regard? I would be surprised if the travaux preparatoires did not reveal an intention to have the Conventions' protections apply as broadly as possible. If my assumption is correct, detainees ought to be entitled to the benefit of the doubt -- at least until a properly constituted tribunal determines otherwise.

[Dave Glazier]

Before commenting further on the substance of Jeremy's comments, I feel the need to say how refreshing it is in the current emotionally charged political climate to have a serious discussion about real legal issues associated with this conflict. So much of what is supposed to be discourse on these issues is just people shouting at each other about what they'd like the law to be rather than trying to analyze what it is. So kudos to the folks who've established and maintain this blog, and the enlighted folks participating in the commentary.

Jeremy - I see the logic in much of what you say. Whether the analysis of combatant status is a group or individual determination is very much ambiguous. Certainly you are fairly reading the text of Geneva III to interpret it to call for individual analysis in the form of Article 5 hearings. But I think the history of the law of war, dating back to the language of General Orders 100 in the Civil War, suggests that whether or not combatants qualify for POW status is generally based on the conduct of their unit. For example, if a unit denies quarter to its enemies, all members of that unit were traditionally subject to summary execution upon capture. An individual was logically entitled to individual consideration of whether or not he was a member of the unit in question -- the unlawful acts of the unit could not be generally allocated to the enemy force as a whole, but the individual was not entitled to assert that he personally had not shot anyone trying to surrender, only that he was not a member of a unit that did. (Lest I introduce any confusion or excite neocons, let me state categorically that I believe authority for any summary executions without trial under the law of war was removed by the Hague Convention on land warfare in 1899).

By analogy today, a member of the Taliban could not logically assert that he wore a uniform, followed the law of war, or was under valid command if in fact other members of his unit did not --how could you even have a "uniform" if it wasn't "uniform" within the unit? The problem with the Administration's approach seems to me that is that is simultaneously overbroad - tarring every member of an entire force with the label of unlawful combatant without inquiring whether or not there might specific units that could qualify as lawful -- and underprotective, denying individuals the meaningful opportunity to contest that they're not members of a military unit at all, or not members of one that failed to follow the law of war.

There's no facial reason that a Combatant Status Review Tribunal (CSRT) cannot be a valid forum for allowing individuals to contest their status in compliance with Geneva III's Article 5 - the fact the Administration is so committed to avoiding the Conventions that it refuses to call them Art. 5 tribunals aside. There is no objective standard contained in GIII for judging the article 5 tribunals/CSRTs; but there certainly is now a huge amount of evidence in the public domain suggesting that in practice the CSRT procedures are so stacked against the individual -- use of secret evidence, inability to procure exculpatory evidence, exceptionally low burden of proof imposed on the govt, etc. that we subjectively have sound reason to believe that they're incapable of meaningfully sorting out actual combatants from the innocent.

You are correct Jeremy about the drafters' intention that the Conventions were to be widely applied, and the fact that they are now what I believe are the only truly universally ratified agreements adds credence to that view. Despite the drafters aspirations, however, it is also true that they are treaties and ultimately it should be the facial language that nations have signed up to follow, not the more ambitious intentions of the drafters. While I agree with very little in the Administration's approach to the war on terror, I do think it necessary to put aside any antipathy and read the literal language of the treaties as carefully as possible, then apply it to the facts as best we can know them in the public domain. The conclusion I come to is that there are real grounds for finding their application to the war on terror problematic. (I even think that objectively, the Supreme Court substantially overstated the case for the application of Common Article 3).

Where I significantly depart from the Administration is the next step. The President seems to say, OK, Geneva provisions don't really apply, so I'm free to do what I want. I say BS, if treaty law doesn't apply the Martens Clause (which the U.S. has signed on to in at least 7 different treaties) clearly says that customary law of war provisions do apply, and there is plenty of precedent for objecting to essentially every egregious element of the Administration's conduct of the war without having to rely on any element of Geneva. And that's particularly important given the insertion in the "compromise" language of the military commission bill denying Geneva as a cause of action in U.S. courts.

If you have the time, I lay out most of this analysis in much more detail in a forthcoming article available here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896643

I'd certainly welcome critical feedback.

[David]

As far as the applicability of the Geneva Conventions to the conflict with the Taliban, I think that at a minimum Taliban fighters would be covered as "protected persons" under GCIV.

The official commentary to the Geneva Conventions states that as a general principle during armed conflict or military occupation "[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by [GPW], a civilian covered by [GCIV], or again, a member of the medical personnel of the armed forces who is covered by [GCI]. There is no 'intermediate status'; nobody in enemy hands can be outside the law."

There is a strong argument that the Taliban fighters would qualify under GPW art. 4(A)(3) as "[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." Even if you buy the argument that persons who fall under either art. 4(A)(1) or art. 4(A)(3) must implicitly satisfy the 4 conditions of 4(A)(2), which cuts against a textual reading of Article 4, Jeremy's point that the U.S. would have to determine in an Article 5 hearing that each individual personally failed to meet those conditions would still hold. Article 5 explicitly requires this case-by-case determination.

But in any event, individuals captured in the context of an international armed conflict, such as between the US and Afghanistan, who do not qualify as POWs would almost invariably qualify as "protected persons" under GCIV art.4 (protecting "those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."). Even spies, saboteurs and other unprivileged belligerents fall under the aegis of protected persons. Of course, unprivileged belligerents would be susceptible to criminal prosecution for their acts, but they would still enjoy the majority of the protections of GCIV (of course, the US could determine that "absolute military security" required that they forfeit certain rights). Especially in light of the Army Field Manual ("those protected by [GCIV] also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war"), it's still amazing to me that the intial OLC memos did not even address the possible application of GCIV to persons detained in the Afghanistan theater.

Regarding the normal diplomatic relations exception - the reasoning behind this exception appears to be that individuals whose countries maintain normal relations with the detaining power would be more effectively protected through diplomatic channels. The logic of this exception do not seem to make sense in the current context, where many of the detainees hail from friendly nations not particularly interested in ensuring that they are not mistreated. So there's at least an argument that what Article 4 requires is some sort of 'effective' diplomatic representation.

And the situation here would alter once the US is considered to be an Occupying Power ("Territory is considered occupied when it is actually placed under the authority of the hostile army"). The GCIV Commentaries indicate that "[i]n occupied territories nationals of a co-belligerent State, so long as the State in question has normal diplomatic representation in the occupying State, are excluded. However, in this situation, nationals of neutral States are protected persons and the Convention is applicable to them. Its application in this case does not depend on the existence or non-existence of normal diplomatic representation." So, if the US is considered to be occupying Iraq and Afghanistan, for example, a national of Great Britain (as a co-belligerent state) would not be protected but a national of Yemen would be protected under GCIV.

But in any event, even those persons who do not fulfill the nationality requirements of GCIV art. 4 are protected by Additional Protocol I art. 75 (which would protect any person in the power of an opposing party to the conflict, in the event that they do not benefit from more favorable treatment under the Conventions as a whole). Dave notes above that the US has not ratified AP I and has objected to Protocol. But the US objection is principally to AP I art.44 (on the basis that it would afford too many protections to guerrilla fighters who engage in tactics that endanger civilians), not to the Additional Protocol as a whole. The US recognizes the customary status of AP I art. 75 and has stated that it considers itself bound by that provision. See, e.g., WH Taft, The law of armed conflict after 9/11, 28 Yale J. Int'l L. 321-22. So the US is by no means a consistent objector to the relevant provision of AP I

To summarize, I think the Taliban are at least presumptively entitled to POW status until an Article 5 hearing is held. If it is determined in a case-by-case judgment that a particular Taliban detainee does not meet the Article 4 requirements, then that individual would be a protected person under GCIV.

Members of AQ and other nationals of third states detained in Afghanistan may qualify as "protected persons" under GCIV, although the US could deny them the full range of protections in the interest of national security. At a minimum, though, these detainees are entitled to the protections of AP I as binding customary international law.

Under Hamdan, persons detained pursuant to the "global war on terrorism" outside Afghanistan or Iraq are entitled to the minimum protections of Common Article 3.

[Jeremy Telman]

I see I have a lot of reading to do before I can say much more on this topic. I have now downloaded both Dave Glazier's paper and Bobby's paper, which I should have mentioned up above along with David Sloss's.

A few quick comments on Dave's post above. First, a rather picky point: the requirement in the Convention is not that Taliban members wear "uniforms;" it is that they have "a fixed distinctive sign recognizable at a distance." Many, including some within the Bush Administration, have argued that the Taliban's distinctive black turbins qualify. But the larger point is that your example assumes a determination that the Taliban as a group would not qualify, a determination that has not yet been made by an Article 5 tribunal.

I agree with Dave that some CSRT could qualify as an Article 5 tribunal, but my point is that detainees are entitled to a presumption of POW status until such a tribunal determines otherwise. That much seems clear from the text of Article 5:

Article 5

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

In other words, in order to be in compliance, the U.S. government should be according Taliban detainees POW status until a competent tribunal can be created.

Finally, I think I disagree with Dave about how treaties are to be interpreted. VCLoT Art. 31 does not give priority to "literal language" over inentions of the drafters. Here's the relevant language from Art. 31(1).

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Perhaps this differece is not of great moment, however, as Dave and I seem to come out in the same place. I think we can get there via Geneva -- and in this respect, David makes many strong arguments directly above this post -- but I am perfectly happy to get there via the Martens Clause.

[Bobby Chesney]

I really wish I had more time to engage these great comments. Let me quickly respond to an important point that David raises regarding GCIV and the diplomatic-protection exception. He notes that some of the states from which detainees hail have shown relatively little desire to stick up for their citizens. This no doubt is true in some instances. On the other hand, there clearly are counterexamples that demonstrated precisely the sort of diplomatic intervention which the exception appears to contemplate. Here I have in mind efforts by, among others, the UK, France, and Germany to prompt the U.S. to release at least some of their citizen-detainees. So I would not necessarily agree that the diplomatic-exception rule fits poorly with the model of an armed conflict between a High Contracting Party and a transnational network with members hailing primarily from states that have normal relations with the U.S. This is not to say that the rule does not merit reconsideration in light of changing circumstances, of course.

On Jeremy's treaty interpretation point, I would note that the U.S. is not actually party to the VCLoT (though the State Dep't appears to view it as embodying CIL on the issue). On the other hand, as I argue in the paper that he so kindly mentions, it appears that U.S. courts depart from the VCLoT approach - if at all - by exhibiting a slightly greater willingness to move beyond the text in search of intentions/purpose.

Finally, regarding the Article 4 inquiry, one quick observations. Dave's argument for a unit-based approach is really interesting and very reasonable. Insofar as other interpretations also are at least reasonable, however, this just serves to emphasize how important it is to be clear on whether - for purposes of our domestic legal system - judges should defer to reasonable interpretations adopted by the executive branch. (I would add, by the way, another reasonable interpretation: the proper analysis might focus on *both* the conduct of the individual *and* of that individual's unit (or larger group)).

[Kenneth Anderson]

One quick side comment about status under GCIII, Art. 4. It seems to me that there is an irreducible "group" element to it at least in 4(A)(2) - it says that a person qualifies as a POW if he is a member of a militia or volunteer corps, provided that the militia or volunteer corps (that is, the group, not the individual) fulfils certain criteria. I have understood the group element at the most general level here to deliberately rule out 'armies-of-one' as being inherently undisciplined; hence the requirement for commanders, group structure, etc. I have always read that to mean that - and I've always thought that the ICRC agreed - that this meant that the group must satisfy these criteria in order for any particular individual to benefit from POW protection under them. The incentive rationale for this is that much greater incentives are provided to members of armed groups to follow the war rules if there is the possibility of membership-status liability on account of the group itself even if you yourself have not individually committed any further war crime.

Thus it would be possible for an individual member to be part of a group that flunks these criteria, and so be liable as an unlawful combatant (i) if the group fails these tests, (ii) the individual is a member, and (iii) even though the individual may not have individually engaged in separate war crimes as part of the group. That is, the individual is chargeable as a member with unlawful belligerency in an article 2 conflict. The member is not chargeable with specific war crimes in which he did not participate - leaving aside special questions of conspiracy, aiding and abetting, etc. - but he is chargeable with the underlying status crime.

Although I've never seen any real discussion on it and not sure if there is much, the language in this section refers to "members," and it is arguably the case that this is a broader category that "combatant," in the formal sense of someone who takes active or direct part in hostilities. Meaning that potentially one could be a member without having taken active part in hostilities, but still be liable as an unlawful belligerent.

The first part of this post about group requirements I've long understood to be the standard view pretty plainly expressed in article 4, but maybe I've long missed something. I'd welcome any thoughts, particularly on that last point, on which I've never read commentary. I'm going to cross post this over to my blog as well and maybe fill it out a bit.

[Kenneth Anderson]

Further to the above. Dapo Akande, St Peter's College, Oxford, has made an interesting comment on the unlawful belligerency question, on my blog, here:
http://kennethandersonlawofwar.blogspot.com/2006/09/dapo-akande-responds-to-geoff-corn-and.html.