British sailors and Iran
Well, everyone knows the substance of this story, which is that Iran snatched some British sailors, and is accusing them of espionage.
Certain elements of the Blogosphere are up in arms about this accusation, claiming that it violates "Article 46 of the Geneva Convention" which specifically excludes from charges of espionage those gathering intelligence data while in military uniform.
Let me point out a clarification.
First, Article 46 of the Geneva Convention is an imprecise identification of the treaty. There are 4 Geneva Conventions plus annexes. There are 2 Protocols Additional to the Geneva Conventions. The article 46 in question actually comes from Protocol Additional I. Neither the United States nor Iran are party to that Protocol.
Iran is a signatory to the four Conventions.
Article 5 of Convention IV states that protected persons "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" (definition from Article 3) can be treated not a prisoners of war, but as criminals under a few circumstances.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
OK, that's fine, but can these folks be detained as spies or saboteurs?
That's where Article 46 of the Protocol Additional I comes in. But that hasn't been signed by Iran. What has Iran signed that applies?
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.
Article 29 states clearly that a person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.
Somehow, operating a pair of inflated boats from a UK-flagged warship doesn't seem to meet the definition of using false pretences. Of course, saying "This violates the Hague Conventions" doesn't have the same ring to it, because your average person knows far less about international law of armed conflict than he thinks he does, even folks in the military. I had someone try to tell me that invading Iraq violated the Geneva Conventions! That's ridiculous on the face of it, but most people who reference the GC don't actually bother to READ the damn things.
My favorite is the people who try to tell me the GC are "outdated" but when pressed, cannot clearly distinguish between the Geneva Conventions and the Rules of Engagement. . .
Anyway, this particular piece of the Shaat al-Arab is and has been disputed for a long time, the Islamic Republic of Iran not having much truck with the 1975 Algiers Accord between Iraq and Persia.
In short, this is 'business as normal' for a regional power feeling its oats and wanting to engage in some penis-waving in the general direction of a Great Power. After some posturing, they will almost certainly be returned more or less intact. Moral of the story?
Keep your frigate closer to your RIBs, engage in a big impressive reprisal raid, or expect this sort of thing to happen.
Certain elements of the Blogosphere are up in arms about this accusation, claiming that it violates "Article 46 of the Geneva Convention" which specifically excludes from charges of espionage those gathering intelligence data while in military uniform.
Let me point out a clarification.
First, Article 46 of the Geneva Convention is an imprecise identification of the treaty. There are 4 Geneva Conventions plus annexes. There are 2 Protocols Additional to the Geneva Conventions. The article 46 in question actually comes from Protocol Additional I. Neither the United States nor Iran are party to that Protocol.
Iran is a signatory to the four Conventions.
Article 5 of Convention IV states that protected persons "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" (definition from Article 3) can be treated not a prisoners of war, but as criminals under a few circumstances.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
OK, that's fine, but can these folks be detained as spies or saboteurs?
That's where Article 46 of the Protocol Additional I comes in. But that hasn't been signed by Iran. What has Iran signed that applies?
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.
Article 29 states clearly that a person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.
Somehow, operating a pair of inflated boats from a UK-flagged warship doesn't seem to meet the definition of using false pretences. Of course, saying "This violates the Hague Conventions" doesn't have the same ring to it, because your average person knows far less about international law of armed conflict than he thinks he does, even folks in the military. I had someone try to tell me that invading Iraq violated the Geneva Conventions! That's ridiculous on the face of it, but most people who reference the GC don't actually bother to READ the damn things.
My favorite is the people who try to tell me the GC are "outdated" but when pressed, cannot clearly distinguish between the Geneva Conventions and the Rules of Engagement. . .
Anyway, this particular piece of the Shaat al-Arab is and has been disputed for a long time, the Islamic Republic of Iran not having much truck with the 1975 Algiers Accord between Iraq and Persia.
In short, this is 'business as normal' for a regional power feeling its oats and wanting to engage in some penis-waving in the general direction of a Great Power. After some posturing, they will almost certainly be returned more or less intact. Moral of the story?
Keep your frigate closer to your RIBs, engage in a big impressive reprisal raid, or expect this sort of thing to happen.
posted by Just A Decurion at 3/27/2007 05:52:00 PM
3 Comments:
The correct legal reference to this issue is not Geneva Convention IV nor Regulations annexed to 1907 Hague Convention IV. The correct reference is Geneva Convention III: members of the armed forces who fall in the hands of the enemy are prisoners of war. They can be prosecuted in case they have committed violations of the laws of war prior to capture. Regarding the question of espionnage: if these guys were in uniform, they cannot be deprived of their rights to POW status even though the other party accuses them of espionnage.
http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68
Geneva III doesn't seem to address espionage, just how to treat those who are entitled to POW protection.
The definitional aspect whereby a person wearing a uniform cannot be charged with espionage is customary law of war, but was codified at Hauge, to which treaty the Islamic Republic of Iran is a signatory.
Trackbacked by The Thunder Run - Web Reconnaissance for 03/28/2007
A short recon of what’s out there that might draw your attention.
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