On the legality of stockpiling chemical weapons, again for the non-expert

This will actually be the second in a series of four blog posts about chemical weapons in international law.  I know this will be boring for some people, but I'm soooo freaking excited that my friends want to talk about international law!  Even if this will end within a week or so, I'm taking every opportunity I can to talk about my one true love in life.

The first blog post was about how Syria could be obliged to not use chemical weapons when it wasn't a party. This one is about the legality of stockpiling chemical weapons under international law. The next one will be about the use of chemical weapons by Israel during the last Gaza conflict.  There's a fourth subject I wanted to talk about but now that I'm typing this, I forgot.  So I'll update this post later to reflect that.  Also, at some point I'll put a little cheat sheet of international law terms somewhere.

A friend wrote to ask me about that first blog to ask how stockpiling chemical weapons could be justified when the Convention on Chemical Weapons bans it.  This is a great question that is slightly technical and relates to the relationship between treaty and customary law and I realised it was a big gap in my explanation.  Sorry about that, but stick with me for one more international law post.

Let's start with the first and most important part: Article 1 of the Convention does prohibit stockpiling, acquiring, retaining or transferring chemical weapons:

"1. Each State Party to this Convention undertakes never under any circumstances:
(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;"

Now, Some treaties can generate customary obligations. Perhaps the easiest treaties to point to on this are the Four Geneva Conventions relating to the treatment of people during war.  They have 195  parties. There's only 193 countries in the UN. This means if you're a newbie country,* you're more likely to agree to the Geneva Conventions than you are to the UN Charter.

And non-countries or wanna-be countries sometimes sign on to the Geneva Conventions because they find the protection offered there appropriate. The Palestinian Liberation Organisation agreed to adhere to the Geneva Conventions in 1989, more than 20 years before they would be recognised as a country (though not a member) by the United Nations General Assembly.

It would be really hard for a country to be recognized as independent and not sign onto the Geneva Conventions or abide by them even if they aren't a party.  They've also been incorporated into domestic laws and military manuals and are often recognized by countries as customary law. In that sense, the treaty obligations themselves have become customary international law. The exact extent of this obligation is still debated in the international law community (though the International Committee of the Red Cross** (ICRC) has a super nifty, pretty authoritative guide on customary international law in this area).

The Chemical Weapons treaty may be customary law on its own.  I'm just haven't previously been convinced that it is. The obligation to not use chemical weapons is clearly customary, but I haven't previously been convinced the obligations about stockpiling are yet. That said, this last debate on Syria may now convince me otherwise. Here's how:

States often used, relied upon and noted the Convention as a reason for not stockpiling. While this means they recognize an obligation not to stockpile, their reason for being legally bound appears to be just the treaty. They didn't seem to suggest there was an independent reason for not stockpiling these weapons, and other states didn't seem to suggest the mere stockpiling by these states was a danger.  When the US talked about Iraq having Weapons of Mass Destruction, it was accompanied by accusations that Iraq was likely to use them in the future because it has used them in the past (something we apparently didn't mind so much the first time but really feared happening again). There have been very few discussions about stockpiling weapons that weren't actually about the use of chemical weapons. On this, states often did note independent reasons for not  using chemical weapons, but the stockpiling wasn't really discussed as much.

With the Syria case, though, the US came out hard against the stockpiling by Syria, stating that for Syria to avoid US intervention, it needed to turn over and destroy its chemical weapons. Syria denied even stockpiling, suggesting it finds itself bound to not stockpile chemical weapons as well.  With both the US and Syria suggesting Syria was bound not to stockpile weapons, and most of the rest of the world agreeing or remaining silent, it would appear we're at the point where stockpiling weapons is itself an independent obligation.

But, in my opinion, that's a pretty recent development. Even the US's position on Syria's chemical weapons was initially solely about their use. We were going to invade not because they had chemical weapons, but because they used chemical weapons.  This discussion has evolved, though, this week and I think I would now say even having chemical weapons may be customary international law.

This brings me to one more important point about customary international law:  sometimes it's really hard to know what is and isn't customary international law.  We can sometimes know for sure what is customary international law, because a court with importance has said so (i.e., the International Court of Justice or the International Criminal Triubnals for Rwanda or Yugoslavia), or because there's really clear evidence that is indisputable. A lot of times, though, international law scholars can make a case but it's not an air-tight case.  We have evidence, we think it's pretty sound, but maybe it's not.

Also, sometimes the idea of customary international law is massively overused.  International law is only binding if a state consents to it. Both customary law and treaty are ways in which states consent. People want things to be legally binding so in the absence of a treaty, they say it's customary international law. My old law professor used to call this the "Tinkerbell doctrine": If people - meaning activists and scholars - clapped their hands enough and said they believed, the law could live.

I'm a little more skeptical on this, and think we need to be protective about what constitutes customary international law because that protects the democratic process in our own states. If the state is going to agree to be bound by something, it is constraining its ability to respond to internal, democratic changes in the future. That should be treated very carefully.

So, I'm not one to necessarily jump on a customary international law bandwagon, no matter how much I want something to be customary international law. That's why I said countries (meaning not parties to the treaty) can justify stockpiling weapons, but not using them.  I should have been a little clearer on all of that in the last post. Sorry!


Either way, it looks like we have a breakthrough and Syria may be joining on to the obligation not to stockpile, which it denies doing, and all of that makes the customary international law on stockpiling a little more likely.

*I'm using country and not the technical term "state" because most of my audience is from the US and I don't want to have to explain that one right now.

**Fun Fact: While everyone things the Red Cross is a religious symbol, which is why the ICRC now also has Red Crescent societies, it wasn't intended as such. The Red Cross was actually intended to honour Switzerland. This may be simply because the founder of the ICRC, Jean-Henri Dunant, was a Swiss citizen, but it's also significant because Switzerland was a neutral country and the ICRC remains neutral in battle, serving both and working with both sides of conflicts with complete immunity (that's a treaty obligation, but it's probably customary law). Oh, and the Geneva Conventions were obviously signed in Geneva, which is in Switzerland (yes, it's also in Ohio, but that one didn't host the ICRC founding). the Ohio Geneva and inverting the colors of the US flag would just be very confusing).  So the Red Cross is just the Swiss flag with inverted colours. Or colors, depending on where you live.

What Makes Chemical Weapons so Special (For the Non-Expert)

Let me start with noting the obvious: I have some seriously awesome, smart, amazing friends. And the more obvious: not all of them know about international humanitarian law, or more specifically the laws of armed conflict.

This is partly the product of where I grew up:  the discussion on international law in the US is a bit crazy. As one of my colleagues and I were taking the mick out of each other this morning, he said something I could really argue with:  "You can't go to an American on international law - they don't even think it exists!" (Okay, I realise no one will laugh at that unless they actually do international law; and in fairness, he went on to a much more personal and funny insult, but that was his set-up.).

This is partly the product of our history. We were isolationists.  When we stopped being isolationists, we were a world superpower, and then we were the world superpower.  So we tend to think we're not bound by anything other than whatever came out of the POTUS's mouth (or the SCOTUS's mouth, and sometimes Congress's maybe; and if you're Rick Perry, you think you're only bound by the latest thing to have come out of your own mouth).

But also, lots of other, non-US people just don't about the laws of armed conflict.  So the past few weeks, I've seen a lot of facebook posts / comments along these lines:

• "Assad's been bombing people for years. What makes chemical weapons so special?"
• "How can we hold him to a treaty Syria isn't a party to?"
• "Does this mean we can bomb anyone who messes up in war?  Because we should be careful about that..."

Now, morally, I kind of agree with the first comment, but legally, there's answers to all of these questions and the answers relate to the laws of armed conflict.  Now, I'm not going to suggest an answer to the problem of Syria but I think Syria presents a really good opportunity for people who don't pay attention to international law as part of their job to start to understand international law just for their own benefit.  So, here's my super brief answer on "what makes chemical weapons so special."  I could write a longer piece, but I can only justify about 20 minutes of procrastination on my PhD chapter.  Also, as I wrote, I could hear the voices of my friends who study this in my head, so I have a few notes for them in [brackets]. Just ignore those if you don't study this.

Let's start with some basics:

There are two types of international law: treaties and customary.  Customary international law develops when states act in a consistent manner and do so because they believe they are legally bound to do so even without a treaty.  To see the consistent state manner, you can look to both action and omissions, and can rely on public statements and declarations that accompany either the act or lack of action. Once something is customary international law, it's binding on all states except those that have consistently objected to the development of this rule.  This can develop slowly taking decades or it can be quite quick.

Understanding how customary international law works:
To give an example (which is really really really not real), let's imagine that tomorrow, the US decided that because of all the peanut allergies (which I know are really really real), it was going to ban the growing, selling, producing or importing of peanuts to protect human life.  Then it started telling other states they should do it too, that ultimately if they take the right to life seriously, they must do this. And a few other states - hippy-dippy liberals like Canada, NZ and France and Sweden - decided to ban peanuts out of respect for the right to life.  That would not be enough for customary international law.  But, if over the course of about 3 years, almost all the other states - say, 135 of the 193 UN members - all worked to ban and eradicate peanut use as a threat to human life and health, and they banned sales, and they came out with statements saying that the production of peanuts was illegal not just within their own states but across the world.  Then, with 135, you would see an emerging norm or an emerging custom.  No one is quite sure if it's really custom or not, but it sure looks like it's getting there.  And then by year 5, 155 countries have done this.  They're all doing the things to ban peanuts and stop their transport.  And of the less than 40 countries who haven't, 20 don't actually use or have peanuts in their countries anyhow.  So they haven't taken any steps because they're looking at the rest of the world going "But we've never even had peanuts, they've never been in our borders, why is everyone so obsessed with peanuts?" So this takes us down to 20 states that are relevant to the peanut discussion and who aren't banning their import. Ten of these states just don't care because they wish we would focus on something more important like world peace or the real eradication of polio. But the other 10 do care and every time it comes up they go, "No. This isn't a real rule. You're all anti-peanut imperialists and we will not be bound by this rule."  At that point, there's enough consensus that the rule becomes a rule for everyone - the 155 that agreed, the 20 that it was never relevant to and the 10 it was relevant to but didn't care - except for the 10 states that continue to say it's not a real rule.  Now, let's assume Thailand with all their yummy peanut sauce is one of the countries that consistently objected so they aren't bound.

So what happens with Canada suddenly starts trading Thailand minerals for peanuts?  The law isn't binding for Thailand but it is for Canada, who was actually one of the first to help make this a law. Canada is violating international law.  They haven't signed a treaty, but they also weren't consistent objectors when the customary rule was developing.  So they have to live by the rule that was established.  They can't come in later and go, "Oh, shoot, but we don't like that rule anymore, so we won't abide by it."  They can, on the other hand, try to create a new rule.  But they can't just ignore the old one.

How Chemical Weapons are Customary International Law.
So, those are the two types of law.  Now why this matters to chemical weapon use.  Syria isn't a party to the relevant treaties [note to IHL-nerds: yes, some could argue that the use of chemical weapons is torture and prohibited under Common Article 3 of the Four Geneva Conventions, but this post isn't for you, so stop trying to make it all complicated; yes, Dan and Sukrit, I'm talking to you.]. So, Syria can only be bound to not use chemical weapons on civilians if there's a relevant customary international law.

And there is. (Otherwise, this post would've ended a really long time ago.)  The laws of war have two relevant rules for this that are not customary for all wars. [note to IHL-nerds: yes, I know wars and armed conflicts are different, but again, this post isn't for you, so stop being nit-picky. Dan, Sukrit, and Catherine.]

Now, war is bad. Everyone knows that. The laws of war are intended to make war less bad, meaning less harmful to the innocent civilians and as humane as you can make war for the people fighting it.  It accepts that people will die.  The laws accept that people will die but it requires states to try to make sure people only die to the extent necessary, and if they do die it's from as humane an act as possible.  I know it's perverse, but countries are sometimes perverse: they don't want the effects of war, but they like blowing things up and conquering each other.  So to hit the right balance, they developed rules that limit the impact on civilians.

The two customary laws that are most relevant here are the obligations when targeting, and the use of weapons that are designed to cause superfluous harm.

When you're fighting a war, the country has to distinguish between military and civilian objects. Military objects are those that by their nature, use, purpose or location make an effective contribution to the military effort of the other side, and whose destruction in whole or in part in the circumstances ruling at the time will help your side militarily.  It's judged by the circumstances ruling at the time, so if you have a big building and last week, the military was housing all their artillery, last week was a military target and you could try to destroy it.  But if this week, it's now a flower garden, it's no longer a military target and you can't hit it.  You can make mistakes, but your mistakes should be in good faith, so you should try to confirm in advance of launching a strike that the building is still being used for military housing. This is judged by the standard of your best efforts to the extent that doesn't compromise your military objective and advantage.  So you know the building was military housing, you've asked some people, you've done some scouting, and you've seen 30 guys in military uniforms with big guns entering and leaving and no one tells you it's now a flower market.  You can target it.  When it turns out you're wrong because the guys in military uniforms with big guns were just going in to buy their girlfriends flowers, you're not liable for being wrong.

Now, in addition to the things you can target, you can also target the people who are fighting you.  In a conflict between countries, that's the military versus military, and in a conflict within a country or between the US and groups like al Qaeda, you can target the military or non-military people who fight.  They don't necessarily need to be fighting right at that exact moment, but they need to be the people who are fighting.  [IHL law nerds: no, I'm not going to discuss the complexities of DPH. Suck it up, Dan, Sukrit, Catherine, and Gilles-Phillippe.]

You can never target civilians or civilian objects.  It's prohibited.  It's so fundamentally prohibited it's the most prohibited you can get in international law.  It's Charles Manson-Jeffrey Dahmer-Ariel Castro prohibited.

Once you've targeted a military thing, you have to use weapons that can distinguish between the civilian object and the military. Again, this isn't a strict standard, but you need to work to your capabilities, and if you can't completely distinguish, then you need to make sure that the impact on civilians doesn't outweigh the advantage you gain. This is a fluid thing and it's not a 1:1 ratio. If you are targeting something really important - like the Department of Defense ("DOD") - if you might be able to justify killing 100 or 500 civilians, whereas if you're targeting a checkpoint on the road, you might be able to justify killing only 1 civilian. If you can, you should alter your plans to make sure the damage to civilians is as little as possible.  So if a market is operating across the street from the DOD and it only operates from 9-5 and you can just as easily attack at 6 as you can at 3pm, and you aren't sacrificing your only opportunity to to attack well, you should wait until 6.  [IHL-nerds: yes, I just discussed both distinction and proportionality and tried to pretend it was just distinction, but stop being so mean, Sukrit, Dan, Catherine, Gilles-Phillippe, Selbi, Hanneke and Laureen.]

• The short answer:  Chemical weapons can't distinguish usually. That's the thing about chemicals - you spray them out and they just go and go and go. They're not like a bomb or a bullet, they don't hit something and then stick.  So, they don't distinguish and they aren't proportionate.

Why Chemical Weapons are Extra Bad Compared to Other Weapons.

The other relevant customary international law is a prohibition on the use of weapons that cause superfluous harm. We want weapons that kill as humanely as possible. Yes, bombs and bullets and tanks can leave you paralyzed, but they aren't designed to leave you paralyzed. They're designed to make you die (or get you to surrender).  Again, we know war is hell and we know that people will die, but we just want it to be as limited of a hell as we can have. So if something is designed to leave you in pain rather than to kill you, it's not legal.

• The short answer:  Chemical weapons aren't designed to kill you, or to kill you quickly.  They are designed to make you suffer. Sarin gas is designed to kill your nerves, making you writhe in pain until your body shuts off.  Yes, it can sometimes work faster than other times, but it's purpose is an evil, awful one.  It's designed to bring out the worst hell war can offer.   

Even Beyond the General, there's Probably a Specific Customary International Law.

No one justifies using chemical weapons.  We can justify owning them and stockpiling them as a deterrent, but no one actually justifies using them. Not even Hussein or Assad prior to, well, when they didn't like that rule anymore.  When they are used, they're denied (as we've seen in Syria), or people blame one another (as in Syria), or they are prosecuted.

Chemical weapons use is, thankfully, very rare, and no one actually goes around saying, "Dude, love the ability to use chemical weapons on people" or even "Seriously, it's totally fine to use chemical weapons."  Everyone says they can't / won't / don't and when they do, they still say they can't / won't and don't.

You can compare this to bombs and bullets. No one ever goes around saying "bullets are illegal! So are tanks and bombs!"  And by "no one" I mean no one other than pacifists and no one speaking on behalf of their country.

So we have a pretty consistent state practice (not using chemical weapons) with a definite assertion that it's illegal (shown by denials when they are used).  So chemical weapons are also specifically prohibited, making them different than other weapons.

Who Enforces This?

Whoever is using the chemical weapons is definitely breaking a law that it is definitely bound to not break and that it definitely knows that it is breaking.  Oh, yeah - I forgot to mention. The rules above also apply to non-state actors, so even though the US thinks it's Assad and Russia says it's the other guys, it doesn't matter.  Someone - whoever used the chemical weapons - is breaking the law.

Now, as to who enforces this... ummmmmm.... so, yeah, kind of no one, and kind of the UN Security Council (UNSC).  Which is why Obama feels that someone should and since he can't get the UNSC to do it, he will. Or might. Maybe. Depending on Congress and France say.

But just because it's not enforced doesn't mean it's not a law.  Think about how many times you've sped on your local highway!

On Graham and the FBI's Failed Fortune Telling

Lindsey Graham could make the Obama's adopting an additional puppy a political issue, so it's not surprising that he has decided to latch on to the fact that the Russian government raised an issue of the older Tsarnaev brother with the FBI as evidence of the FBI's failure.  Several twitterers have also claimed that the Boston bombing was Obama's fault.  I don't have time to deal with the crazies in this world, but I do have some thoughts on the FBI and its treatment of the older Tsarnaev.

First, we as a country can't predict everything that everyone will do.  It's the price of freedom.  There are countries where people fear talking badly of the President / Prime Minister / King / Supreme Leader.  In such places, people have a reason to fear.  They have seen their family members, their neighbors, their friends taken from homes because of whispered rumours about who supports who, who is sufficiently "patriotic" or sufficiently "good" or sufficiently "helpful" to the regime.  Doing human rights, you can spend years reading such stories.  For my LLM dissertation, I spent 6 months reading torture cases - what evil man can do to another man is detailed in such cases, and many of those cases start with a supposed threat one poses to the ruling regime.

Living in a free society - a truly free society - means the government doesn't monitor every conversation or email we have.  It doesn't monitor our every purchase, our every visit, our every change in belief.  This means we can't always know when something will happen.  This is as true of what Eric Harris and Dylan Klebold did as it is of what the Boston bombers did.  Freedom means you cannot predict every attack, and you cannot prevent every attack.  The only alternative is to up the monitoring we are all subject to, and it is, of course, necessarily reminds us of what Ben Franklin said: those who would sacrifice liberty for security deserve neither.

But, the FBI was given information from Russia on Tsarnaev, so it is legitimate to ask what weight should have been given to this inquiry.  There are disputes about how often or who was given information, but let's be clear: the information was from Russia involving a Chechen who was in the US because as a child his family needed to seek asylum.  The brutality of the conflict in Chechnya is well documented.  But the brutality did not stop when the war did.  Amongst those most likely to be targeted and harmed are human rights defenders.  The conflict is wrapped up in both ethnic and religious issues, particularly discrimination and self-determination, though these are not the only issues.

Discrimination against Chechens by the Russian government is widespread, and was cited in at least some news reports as one of the reasons.  For Russia to have concerns about an ethnic Chechen - particularly one that travels between the US and Russia - is not particularly surprising.  Any strengthening of Islamic faith could be seen as a threat.

The US cannot accept without question the call for investigation by countries like Russia.  To do so would be to import discrimination from another state and utilise it in the US. If the same logic was applied to Iraq, the US would have to accept any discriminatory calls against the Sunni minority.  For China, this would lead to heightened surveillance by the US against Uyghurs.  For Myanmar, this could force the US to discriminate against ethnic Rakhine or Kayin people.  The list could go on and on.  The very people who need us most - those who seek refugee status because of intense discrimination - would have that discrimination re-inflicted on them.

And make no mistake - to gain asylum in the US is not an easy thing.  It's a high standard and every year we deport a large number of asylum seekers.  It's a high burden to cross and it is specific to the individual's risk if they were to return home.

To inflict on such refugees the discrimination they faced back home without cause - a serious showing by the home country that there is reason for concern and that it is not simply discriminating - is immoral and unethical.

When the FBI was tipped off by Russia, Tsarnaev was treated as others on the watch list are.  He stayed on the list for one year and because nothing further suggesting concern occurred in that time, he was dropped.  To expect the FBI to do more simply because a discriminatory regime targeted someone in the ethnicity against which they discriminate is to do a disservice to the American dream, that one can escape persecution and seek freedom.  To ask the FBI to predict such abhorrent behavior in the absence of significant evidence is to ask them either to erode our freedoms or to become fortune tellers. And I, for one, don't believe fortune telling is an appropriate means of conducting national security.

I also don't think eroding our freedom is an appropriate means either.  I'm tired of people like Lindsey Graham saying they love America and it's freedom when what they mean is they loving being priviledged in America with its great privileges.  To love American freedom is to love the absence of discrimination, to love the equal treatment we enjoy, and to love the idea that you can talk to your brother in your own house without anyone listening.  This is both a great privilege (though it should be a universal human rights) and a great threat to the security of others.  It allowed Eric Harris and Dylan Klebold to plan the Columbine attacks, for Timothy McVeigh and Terry Nichols to develop the Oklahoma City bombs, and for the Boston bombers to plan last week's attack.

But unless you're willing to give up the right to privacy - that right to private conversations in one's own home without government monitoring and interferrence when they deem a conversation insufficiently patriotic - there's little in evidence that suggests the FBI could have done anything predict or prevent the Boston bombings.

Graham is trying to make a political issue out of a great tragedy because he has nothing else to offer the American public.  And that is, perhaps, the greatest disservice a politician can offer our country.

My 30 second rant on the Laws of Armed Conflict Discussion

Update:  Because I only had 3 minutes the last time I wrote this blog, I left off a necessary discussion of the National Defense Authorisation Act 2012. That is now included below.

I don't have very long to do this, but I had to quickly address Lindsey Graham's criticism of the Obama Administration.  Graham claims Obama should hold Dzhokhar Tsarnaev, one of the Boston bombers, as an "enemy combatant." This, according to Graham, would allow for better questioning.

This is like the "Cliff's Notes" version of what could be a much more detailed answer to Graham's criticism.

Here's the thing, that category doesn't exist under international law and its domestic codification - which is actually "unprivileged enemy belligerent," and the very existence of which may violate the US's international obligations - isn't applicable to Tsarnaev, who is a US citizen.

The applicable US domestic law is the Military Commissions Act of 2006, an attempt to legitimize the very illegitimate Bush Administration's treatment of alleged members of al Qaeda and other random people they were certain were the "worst of the worst" despite the fact that they've now let most of them go without trial.*  There, the law makes it clear that an enemy combatant is an unprivileged enemy belligerent." This is actually a non-sensical category if you consider this is supposed to somehow align with international law.

The Military Commissions Act provides for the establishment of military commissions (it is rather shocking that the US law name actually does relate to what the US law does).  The law provides two separate definitions to create an "alien unprivileged enemy belligerent."  The first is "alien" meaning an "individual who is not a citizen of the United States."  and the second is an "unprivileged enemy belligerent" which means a non-privileged belligerent who

(A) has engaged in hostilities against the United States or its coalition partners;(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or(C) was a part of al Qaeda at the time of the alleged offense under this chapter.

Who are "privileged belligerents"?  Well, the domestic law doesn't actually define that.  International law does, though, kind of.

Technically, belligerents are the parties to a conflict.  It's supposed to refer to the states. The belligerents in World War II were Germany, Japan, the US, Russia, France, the UK, etc.  Applying it to a non-international armed conflict (NIAC) like that of the US and al Qaeda, one would assume the belligerents were the US and al Qaeda.  So, one has to assume that the US legislature actually meant to mean the people fighting because you can't try a category of people - just individuals.

Combatants under international law is a specific category. It refers to the people who fight in an international armed conflict. In a non-international armed conflict - like that between the US and al Qaeda or between Colombia and FARC - the designation for the non-state fighters is that of civilians directly participating in hostilities.

Now, combatants get special privileges under international law. They have the right to kill without being tried (as long as that killing is in line with international law, so no killing civilians or surrendered or injured people). They also get special protection if captured - the prisoner of war or POW protections - like specific pay for their work and an allotment of cigarettes while being detained.

But someone who would normally be entitled to these privileges can lose those extra protections.  For example, if they are caught while engaged in spying, they don't get POW protection. Importantly for this case, if they are fighting against their own state, they are not protected as POW.

People who fight against their own state are operating outside their protection. They can be tried for things they did in the conflict.  But (a) this whole category and discussion of POWs and immunity for killing only applies in international armed conflict, and (b) losing the POW protection doesn't mean that the person has no protection; they just don't have the special protection.

For non-international armed conflicts, those engaged in fighting against the country don't ever lose their protection.  For starters, they don't have special protections.  There's no immunity for killing; there's no guarantee of cigarettes; and obviously, because it's often between a state and its own citizens (think Syria and Colombia for more traditional forms of non-international armed conflict), it is specifically designed to apply to people who fight against their own country.

The guarantees for the non-government actors in a non-international armed conflict include the right to not be tortured and the right to the guarantees of a fair trial.  This requires, at least, a presumption of innocence, an independent, impartial and regularly constituted court, information on their accusation, right to a speedy trial (or a "trial without undue delay"), the right to examine eyewitnesses. and the right to, and means of, defending themselves. This last one includes a right to legal assistance.

Their rights also include the right to remain silent and to not be compelled to testify against themselves or to confess guilt.

So that's what international law of armed conflicts is supposed to look like. Under domestic law, though, we've just ignored the international realities and created an "unprivileged enemy belligerent." A non-sensical category that mixes legal terms to create something specific we want that isn't supposed to exist.

The scope of IHL is limited, though. It applies only where there's ongoing armed conflict.  There's a physical and geographical scope to armed conflict.  You can't actually declare a global war - on anything - and have these laws applicable.  There's some technicality to this issue, but I'm not going into it.  But for the laws of armed conflict in this area to be applied in the US, an armed conflict would have to be ongoing in the US.

But this "alien unprivileged enemy belligerent" category now means that the US can try people by military commission, like those most famously used at Guantanamo Bay.  And it's this that Graham wants the Obama Administration to apply to Tsarnaev.

But more or less only alien unprivileged enemy belligerents can be tried like this.

If you're a US citizen - and Tsarnaev is as of last year - you cannot be tried by military commission, with one potential brief exception that is massively constitutionally dubious. The one brief exception comes from the National Defense Authorisation Act for Fiscal Year 2012 (NDAA, see section 1021-1022).

If you are associated with al Qaeda, Taliban, "or associated forces" the statute says that you can be held without trial "pending disposition under the law of war." The problem with this in relation to Tsarnaev is two-fold. First, you have to know someone is associated with al Qaeda.  You can't make that presumption, operate under it, and then later go, "Ooops - but we're gonna introduce all that information at trial anyhow."  So the idea that you first treat him as an enemy combatant and then later come back to it and change his status has no basis in law.

Second, the constitutionality of this law hasn't been tested, but it's unlikely to be constitutional.  It would not be unconstitutional to an American captured in Yemen or Afghanistan, but it would be unconstitutional to someone in the US.

The only way for this to be constitutional to an American captured in the US - and then it's still slightly dubious - would be for the US to be declared in a constant state of emergency. If you don't want us to be a constant state of emergency, the only way for this to be constitutional - to be able to strip an American citizen of their constitutional rights when they are on US territory - would be to declare an individual in the state of emergency.  That doesn't make any sense.  It's a legally vapid concept.

So Graham now wants the Obama Administration to ignore the Constitution, the laws of war, and the statutes he passed.  Why?  Because he wants information.  But (a) torturing people or questioning them without a lawyer doesn't necessarily mean you'll get that, and (b) that's pointless because he can still give information.

There is a provision in US law that would allow the government to accomplish what Graham wants  (questioning without a lawyer) independent of Graham's choice of action (illegal and unconstitutional treatment of a US citizen). There is a "public safety" exemption that allows for the government to delay telling a suspect their Miranda rights. I'm not going to really get into this because there's a lot out on there on this issue, but the DOJ indicated they would utilize this exemption (it appears there is a challenge coming on that from the Boston Federal Public Defender's Office**).

But  it is worth noting that the Miranda rights - which are actually the Constitutional guarantees in the 5th and 6th Amendments - exist independent of whether the person is informed of them. By being an American on US soil, Tsarnaev inherently has the right to remain silent.  If the government starts to question him and he's smart or watched any procedural shows, the fact that he hasn't been informed of his rights won't deter him from invoking his rights.  He'll have a right to remain silent and a right to an attorney even before he's informed of those.

That doesn't change.

No matter what Graham wishes.

*And OMG it costs $700,000 extra to keep someone at GTMO than a US federal prison?  And I have to listen to Republicans tell me I'm a big government spender?

Update:  Slate has a great piece on the Miranda issue here.

**Another update:  I want to give a big round of applause to the Boston Federal Public Defender's Office! MSNBC is reporting that they are representing Tsarnaev and are challenging extended use of the suspension of Miranda rights. Thank you for standing up for justice.