Legal nuances

I have two questions which I've raised in class, and for which I still don't really understand the answer.

The first relates to why tear gas is illegal against combatants under the chemical weapons ban. Ostensibly, it is a chemical weapon, so it should be banned. However, if the point to international humanitarian law is to make war more humane, then it seems that the international community should support the use of tear gas as one of those "less lethal" weapons. Of course, all weapons, whether declared legal or otherwise, have their risks. However, the three main teargas varieties (CS, CN, and CR), are largely non-lethal (though CR can, in unventilated areas, be lethal, and some individuals can be particularly sensitive to teargas). For the most part, teargas is not dangerous. It can subdue an enemy without permanently disabling them. Why not use it against combatants? If a military force's other option is to kill a combatant, then teargas is by far a more humane weapon.

The other question is one I brought up last class. If a military medic or chaplain picks up arms during combat for reasons other than self-defense, what becomes of their status? If captured, are they now prisoners of war, who can be held until the end of the conflict? Are they still protected persons who must be released back to to their side? Or are they unlawful combatants, who can be convicted of war crimes for perfidy? Article 24 of the First Geneva Convention states

"Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all circumstances."

I suppose that, on the basis of the laws I was able to find, if military medical and religious personnel pick up weapons, they are no longer protected. I didn't find anything about them becoming unlawful combatants. I suspect, though, that they could later be charged with perfidy in the same way that someone illegally posing as a civilian can be charged with war crimes.

Omar Khadr’s fate leaves me with several questions. The first is why exactly is he being tried for war crimes? Is it because he has been labeled as an unlawful combatant who killed a U.S. soldier, or because he killed a medic? If it’s the last reason, that rather hinges on whether or not he knew the man he killed was a medic, because collateral damage is allowed. Since he allegedly threw a grenade from behind a wall, I doubt he intentionally injured a medic. I suspect, however, that the war crimes accusation hinges on Omar Khadr being an unlawful combatant.

This brings up a couple points. As a fifteen-year-old, he was a child soldier, so whether he was a translator or unlawful combatant is irrelevant; legally he should be rehabilitated and repatriated. As a fifteen-year-old, can he even be tried as an adult? Forgetting about international law, in the United States we have separate justice systems for juveniles and adults. All too frequently, however, children are being tried as adults based on the fact that they have committed “adult crimes”. This occurred famously in the case of Lionel Tate, who killed a playmate while imitating wrestling moves. He was only twelve when he committed the crime, but was tried as an adult. However, it seems to me that there are two primary reasons for dividing the justice system by age. The first is to keep adult offenders away from children. The second is that a child is by definition incompetent. If we don’t think they’re competent enough to vote, I certainly think we should not believe that they are competent enough to truly understand the ramifications of their actions. Especially teenagers, who are, essentially, hormones with skin, and should all be automatically Baker Acted until they have successfully completed puberty.

In my opinion, the prosecution of Omar Khadr is incorrect. He was, legally, not competent when he committed the crimes of which he was accused, and was a child soldier anyway, so most of this is a moot point. Whether or not he was an unlawful combatant by adult terms should not even enter the equation. I see this as part of the growing insensitivity of the United States to the question of mental competency as defined by a person’s age.

Policy memo

I'm doing my last couple read-throughs of my policy memo, and just putting the finishing touches on it, and I'm still really not satisfied with it. I've been working on it forever, and every incarnation of it seems crappy. I think it boils down to the fact that I feel like the truly proper response should be "just keep plugging away", because it seems a norm like this is not likely to be established any time soon. Also, I suspect that if something hasn't been tried by CIVIC, it's probably for good reason, and that I am not likely to suggest anything special or reasonable. Alas.

I am well aware that this is completely inappropriate, but I almost died when I saw it.

In case you can't read the small print, it says "Hammerzeit."

A question

In reviewing the ICRC's webpage on civilians in the power of the enemy, I took a look at the Fourth Geneva Convention (1949), particularly Article 4 (because that's what the webpage said to do). I've decided I don't really understand Article 4. It states the following:

"Art. 4. Persons protected by the Convention are 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.Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are."

I interpret the "Nationals of a State which is not bound by the Convention are not protected by it," to mean that if your state has not signed the Fourth Geneva Convention, then you are not a protected civilian. I further see "Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are," to mean that if your state is neutral, and you happen to be in a belligerent state, and another state invades, you are also not protected by the Geneva Conventions against the invading state.

Absolutely none of this makes sense. Can someone clarify? I'm quite positive I'm misreading this passage.

Thanks.