Obama admin: New Gitmo and we'll kill anybody we want

[mr friendly guy]

MoO, going on with Winston's hypothetical, what about the Uyghur detainees at the Gitmo? IIRC China wanted them back for questioning (an article Shep posted some time ago). The US was desperately trying to find third countries which will take them instead of sending them back to the PRC. Does this count under "unwillingness" (although clearly not collusion)?

[Master of Ossus]

MoO, going on with Winston's hypothetical, what about the Uyghur detainees at the Gitmo? IIRC China wanted them back for questioning (an article Shep posted some time ago). The US was desperately trying to find third countries which will take them instead of sending them back to the PRC. Does this count under "unwillingness" (although clearly not collusion)?

I don't see how it could. Whether or not the other state is actively extraditing people, since the US is detaining them then clearly they're no longer threats, and so insofar as the ongoing armed conflict is concerned they've been netralized. It really has nothing to do with the US allowing the terrorists to use its territory as a shield to protect them even as they are involved in the conflict. The US, here, clearly wins on all of the factors Deeks cited except (arguably) the first:

1. China asked and gave the US adequate time to respond. (So China meets the minimum for reasonable evaluation).
2. Reasonably assessed, the US has nigh-complete control in the region and is fully capable.
3. The US has proposed an (effectively) indefinite detention for these people for the duration of the conflict, which almost has to be a reasonable means to suppress the threat (barring these people being escapees from Arkham Asylum). China might prefer to try and garner intelligence directly from these people, and might argue that their continued detention in the US will help shield other terrorists from operating, but this seems weak because of the attenuation of their argument and the actual threat, and (at least thus far) without specific information suggesting that these guys know anything about a threat to China, or even any kind of actions which could affect China. Moreover, the US isn't entirely incapable of gathering intelligence from these people itself, to the extent that they know anything valuable, and the US would have little reason not to interrogate them or to share their intelligence with China if they discovered credible threats or other important information which related to China (merging with the fourth and final factor).
4. China's own prior interactions with the territorial state are strong: the US is very unlikely to long tolerate large, organized armed groups within its territory which are engaged in an ongoing armed conflict with China.

[mr friendly guy]

Ok. Now that I have reread what you said, I will just like to try my own hypothetical to see what you (MoO) thinks. Lets try sometime in the 1950s Tibet instead.

From the wiki summary (I have seen a documentary on this, but it doesn't appear to be available in its entirety on youtube).

In 1956-57, armed Tibetan bands ambushed convoys of the Chinese Peoples Liberation Army. The uprising received extensive assistance from the U.S. Central Intelligence Agency (CIA), including military training, support camps in Nepal, and numerous airlifts.[135] Meanwhile in the United States, the American Society for a Free Asia, a CIA-financed front, energetically publicized the cause of Tibetan resistance, with the Dalai Lama’s eldest brother, Thubtan Norbu, playing an active role in that organization. The Dalai Lama's second-eldest brother, Gyalo Thondup, established an intelligence operation with the CIA as early as 1951. He later upgraded it into a CIA-trained guerrilla unit whose recruits parachuted back into Tibet.[136]

Lets say some CIA operative spills the beans in the 1950s (rather than after the detente with China), so that back then they know as much as we do about the CIA's aid to Tibetan insurgents.

So using the framework you agreed with

1. Is there an ongoing armed conflict between China and the terrorist group?
I think the answer is yes.

2. Determine whether the extraterritorial application of force is legal:
There are three situations in which such an act is lawful: (1) pursuant to U.N. Security Council authorization under Chapter VII of the U.N. Charter; (2) in self-defense; or (3) with the consent of the territorial state.

I think in this case the self defense situation is what China would be arguing.

2a. Self-Defense: There are three conditions which must all be satisfied for an action in self-defense to be legally justified: necessity, immediacy, and proportionality.

Well give that a detente with the US doesn't seem likely at that time (and wouldn't until more than a decade later)... I would say the immediacy problem is addressed. Necessity is a no brainer since PLA troops are being attacked. I will raise the proportionality issue later.

To quote from Deeks

However, an important exception to the requirement that the acting state request that the territorial state act arises where the acting state has strong reasons to believe that the territorial state is colluding with the non-state actor, or where asking the territorial state to take steps to suppress the threat might lead the territorial state to tip off the non-state actor before the acting state can undertake its mission.

Given that there is collusion between the non state actor and the State (USA) therefore if I understood this correctly, China doesn't have to request things like extradition of the head of the CIA or the Dalai Lama's brother, because there is collusion here.

3. Proportionality and Distinction: The use of force must be proportional to the threat and reasonable steps must be taken to distinguish legitimate military targets from the rest of the population. Although there are not firm rules (e.g., "kill only X civilians to kill Y terrorists"), application of force must be somewhat proportional to the scale of the threat to be justified under the doctrine of self-defense.

Ok, in this scenario China decides that taking out the CIA head office with assassinations of important members would be sufficient, as without funding the Tibetan insurgency will quickly collapse (just like in real life after the detente between the PRC and the USA, funding stopped to the insurgents). Lets just say in this case they take steps to ensure collateral damage is minimised.

So my question is, under your criteria, would China be justified legally to launch an attack (assuming they have the means to do so)?

[Master of Ossus]

So my question is, under your criteria, would China be justified legally to launch an attack (assuming they have the means to do so)?

Probably, but you're slightly missing the analysis, still. The question answered by the Deeks framework is not whether they can target members of a state as legitimate military targets, but rather whether or not they can target members of a non-state armed group with which they are engaged. Deeks' framework doesn't extend into the targeting of individual members of the country.

Instead, we need to evaluate whether or not the people involved are legitimate military targets under a more traditional framework of self-defense. So it's more relevant to directly apply the definition of a lawful target:

[one] which by [its] nature, location, purpose, or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. [...]

Legitimate military targets include: armed forces and persons who take part in the fighting; positions or installations occupied by armed forces as well as objectives that are directly contested in battle; military installations such as barracks, war ministries, munitions or fuel dumps, storage yards for vehicles, airfields, rocket launch ramps, and naval bases.

Here, China has a strong argument that the CIA personnel it is targeting are legitimate military targets because they are making an effective contribution to military action. Moreover, assuming they can do it with anything approaching precision, then it would likely fit with principles of distinction and proportionality.

[Alyrium Denryle]

Alyrium, please save your canned strawman spiel for someone for whom it is actually relevant. Please provide evidence that there is some right of repatriation and right of return during an ongoing armed conflict of unlawful combatants.

Which is

A) Not my main point. My primary argument, which you ignored as you did my entire first post, is that there is no possible way that one can claim with a straight face that our country considers itself beholden to international law. In this case, the evidence is that we flagrantly ignore the Geneva Conventions prohibitions on torture and cruel treatment, as well as the much more explicit prohibitions laid out in the Convention Against Torture

B) The people involved in the cases I have cited (in the post you blatantly ignored) involving the right to repatriation and the right of return for a non-combatant german citizen, and a non-combatant US citizen respectively.

Here. Let me spell out the cases for you further:

Khalid El-Masri is a lebanese born german citizen, on the typical 4 week long holiday typical for german citizens which he spent in Macedonia. Macedonian border officials detained him because his name was similar to an individual on the terrorist list in December of 2003, and he was turned over to the CIA. His identity was not confirmed. He was shipped off to Afghanistan on no more due process than a hunch by CIA in an (illegal, but commonly used by the US) Extraordinary Rendition (further proof that the United States does not consider itself bound by international law). During transport, he was stripped, beaten, drugged and given a forcible Enema. All of these things are illegal under the Geneva Conventions. It does not matter that he was not captured in a war zone. If he was taken as part of hostilities between belligerents, he is subject to its protection. You cannot call something a war, and then claim that someone captured is not a POW. The whole operation in this case is illegal.

He was taken to an illegal detention center in Afghanistan, where was repeatedly tortured and interrogated. Torture used included being raped, by the way. He was kept in a squalid cell, given inadequate food, and water not fit for human consumption. All of which, by the way, are in violation of the Geneva Conventions.

In April 2004, it took two orders from the Secretary of State to release him. Rather than being Repatriated Back to Germany , as was his right as a german citizen illegally captured, detained, and tortured in violation of every single fucking provision of every law regarding the capture, transport, and treatment of prisoners which I am aware of, he was left on a desolate road in albania without apology, notification of the german consolate, or funds to return home. He had lost ~30 kg, and stable isotope analysis concluded that he was severely malnourished during his imprisonment.

Now, if we want to get into the particulars: If you want to say he was considered an unlawful combatant and thus not subject to certain protections in the Geneva Conventions, this determination must be made by a regularly constituted tribunal. This determination was not made (and thus his treatment illegal). His detention falls under the 4th Geneva Convention, Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:

Article 3

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

and

Article. 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.

His imprisonment at all, as a non-combatant protected person was illegal

Article 42.

The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.

Article 43

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.

He was kept with POWs, and other victims of illegal rendition, even though he was a non-combatant protected person, and no regularly constituted tribunal had made a positive determination of his combatant status.

Illegal under:

Article 84.

Internees shall be accommodated and administered separately from prisoners of war and from persons deprived of liberty for any other reason.

Article 85.

The Detaining Power is bound to take all necessary and possible measures to ensure that protected persons shall, from the outset of their internment, be accommodated in buildings or quarters which afford every possible safeguard as regards hygiene and health, and provide efficient protection against the rigours of the climate and the effects of the war. In no case shall permanent places of internment be situated in unhealthy areas or in districts, the climate of which is injurious to the internees. In all cases where the district, in which a protected person is temporarily interned, is in an unhealthy area or has a climate which is harmful to his health, he shall be removed to a more suitable place of internment as rapidly as circumstances permit.

lack of contact with the outside world during his transfer:

Art. 106. As soon as he is interned, or at the latest not more than one week after his arrival in a place of internment, and likewise in cases of sickness or transfer to another place of internment or to a hospital, every internee shall be enabled to send direct to his family, on the one hand, and to the Central Agency provided for by Article 140, on the other, an internment card similar, if possible, to the model annexed to the present Convention, informing his relatives of his detention, address and state of health. The said cards shall be forwarded as rapidly as possible and may not be delayed in any way.

and

Article 128.

In the event of transfer, internees shall be officially advised of their departure and of their new postal address. Such notification shall be given in time for them to pack their luggage and inform their next of kin.

They shall be allowed to take with them their personal effects, and the correspondence and parcels which have arrived for them. The weight of such baggage may be limited if the conditions of transfer so require, but in no case to less than twenty-five kilograms per internee.

and his beating/drugging during transfer

Article 127

The transfer of internees shall always be effected humanely. As a general rule, it shall be carried out by rail or other means of transport, and under conditions at least equal to those obtaining for the forces of the Detaining Power in their changes of station. If, as an exceptional measure, such removals have to be effected on foot, they may not take place unless the internees are in a fit state of health, and may not in any case expose them to excessive fatigue.

And Finally Repatriation

His treatment was illegal under:

Chapter XIII. Release, Repatriation and Accommodation in Neutral Countries

Article 132

Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist.

The Parties to the conflict shall, moreover, endeavour during the course of hostilities, to conclude agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees, in particular children, pregnant women and mothers with infants and young children, wounded and sick, and internees who have been detained for a long time.

...

Article 135

The Detaining Power shall bear the expense of returning released internees to the places where they were residing when interned, or, if it took them into custody while they were in transit or on the high seas, the cost of completing their journey or of their return to their point of departure.

Where a Detaining Power refuses permission to reside in its territory to a released internee who previously had his permanent domicile therein, such Detaining Power shall pay the cost of the said internee's repatriation. If, however, the internee elects to return to his country on his own responsibility or in obedience to the Government of the Power to which he owes allegiance, the Detaining Power need not pay the expenses of his journey beyond the point of his departure from its territory. The Detaining Power need not pay the cost of repatriation of an internee who was interned at his own request.

Again, I implore you to kindly go fuck yourself, for you are an oxygen wasting stain on humanity, for being an apologist to a torturing state.

The US citizen denied right of return (and who was also tortured) was Gulet Mohamed, a 19 year old US citizen who was visiting family in the middle east.

In December of 2010, Gulet Mohamed went to Kuwait to renew his visa, as his travels vising family in Somalia and Yemen was somewhat extensive. There, he was detained and tortured by Kuwaiti officials with the cooperation of (and under orders from) the US Government (torture by proxy if you recall is illegal under the Convention Against Torture, both Kuwait and the US as you shall recall, are signatories) in order to obtain information about a US citizen illegally placed on an assassination list by the Obama Administration, Anwar al Awlaki. When his illegal torture was concluded, he was placed on a No-Fly list, denying him the right of return guaranteed to him by the Universal Declaration of Human Rights. He was not a soldier or combatant. Nor was he in a war zone. Thus the excuse of "this is war" does not apply. Said No-Fly List has no provisions for appeal, and it took considerable news and international attention to pressure the US government to permit him to return. However, at least 10 other US citizens, including three members of the Armed Forces are on No-Fly Lists, and without a legal mechanism for appeal, are barred from re-entering the United States, which as you recall, is illegal under the UN Charted, codified in the UDHR. Additionally, No-Fly lists violate the rights of foreign nationals, prohibited from returning to their home countries, but I do not have numbers for them.

Again. Razor wire dildo. Self-inserted into your ass. Sans lube, if you please.

[Alyrium Denryle]

Oh, quick note on timing:

The case of Gulet Mohamed happened in 2010-2011, during the Obama administration. So, we cannot even claim that this is under the rule of the Bush Junta. Under Obama we are still using Torture by Proxy--on our own people, no less. No wonder then, that Obama has shielded torturers and war criminals. He is one.

[Alyrium Denryle]

This is being bumped because I did not spend hours pouring through articles 3 and 4 of the geneva conventions, the convention against torture, and the universal declaration of human rights to have my opponent ignore or miss it.