On 6/13/05, Dan Minette <[EMAIL PROTECTED]> wrote: > > You are focusing on one section in several Geneva Conventions. I will > repeat what I have above. > > >Common Article 3 of the Geneva Conventions of 1949 and Additional > >Protocol II apply to prisoners regardless of the status of the legal > >standing of their organization. Common Article 3 also applies to > >government clashes with armed insurgent groups. > > In the Geneva Convention of 1949, I find. > > <quote> > > 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. > > <end quote> > > That excludes virtually all of the members of AQ. I think if they were > Iranian, they might be covered, so that's a reasonable point. I see the > same clause in the 4th Geneva convention, so the protected person status > there appears to be the same. > > If you see a contrary definition of a protected person from the one I > listed, I'd like to know where it is. I tried to go to the obvious place > to find these definitions, but I realize treaties can have things in not so > obvious places.
Number 1. Simply put the Bush administration has classified Al Qaeda members, the Taliban and anyone it suspects of being a terrorist as non-protected combatants not entitled to the Geneva Conventions. This includes many captives from Afghanistan sometimes turned in for the reward money or to settle old grievances. They have even applied this definition to two US citizens Number 2. You agree with the Bush administration and point to the 3rd Convention article 4 which defines POWs as a particular type of combatant. There is disagreement as to rather the Al Qaeda combatants would meet the definition there but near unanimity that the Taliban and other prisoners don't. In all cases a tribunal must be called to determine their status which has not been done. (The competent individual tribunals for determination of status is from the 1st protocol to the Geneva Conventions as well as Article 5 of the 3rd Convention. If you point to article 4 would you agree the administration should have to follow article 5?.) Before getting to the clinchers let's check with some experts. ""The Administration is applying the wrong part of the Conventions. They have invoked the provisions for irregular combatants not under Article 4-1, but under Article 4-2. They are treating them as though they are guerrillas or partisans who were fighting for a party to the conflict. And that's wrong in my view," said Robert Goldman, professor of law and co-director of the Center for Human Rights and Humanitarian Law at the Washington College of Law, American University. "But even according to the criteria specified for irregular forces, most of our experts believe the Taliban detainees, and possibly Al Qaeda as well, although there is less agreement on this point, would be entitled to POW status. They cited Article 5 of the Third Geneva Convention, which says that if there is any doubt as to whether or not the detainees meet the conditions, then they should be granted POW status until a "competent tribunal" determines otherwise. ""We don't have the facts. We don't know to what extent these people had a proper command structure, wore some sort of distinguishing features and complied with the laws of armed conflict. We just don't know," said APV Rogers, OBE, a retired major general in the British Army and recognized expert on the laws of war. "Curtis Doebbler, Professor of Human Rights Law at American University in Cairo, who served as an advisor to the Taliban government on the laws of war and believes that the Taliban, unlike Al Qaeda, do meet the criteria enumerated in Article 4. But he agreed that we do not have all of the facts. "The first thing is to determine the status of the detainees, and until a competent tribunal declares that they are not POWs, then they are. After that, you can have legal wrangling over the criteria in the Geneva Conventions," he said. "The Bush Administration, by contrast, is claiming that there is no doubt. In its view, neither Al Qaeda nor the Taliban are eligible for POW status because they did not wear uniforms or otherwise "distinguish themselves from the civilian population of Afghanistan" or "conduct their operations in accordance with the laws and customs of war"—an argument that is disputed by the majority of our experts. "Some of our experts said they feared the Administration's decision could come back to haunt US soldiers should they ever be captured by a foreign enemy, particularly special forces who usually don't wear uniforms. "I think we may have set a bad precedent. The drawback is that we have given the other side some ammunition when they capture our people," said H.Wayne Elliott, a retired US Lieutenant colonel and former chief of the international law division at the US Army's Judge Advocate General's School." From an article on "POW's or Unlawful Combatants" http://www.crimesofwar.org/expert/pow-intro.html You might claim that is a liberal source so let us see what the International Red Cross has to say: "The legal situation of 'unlawful/unprivileged combatants'" In it the Red Cross argues while these detainees may not be POWs as defined by the Third Geneva Convention ("Geneva Convention relative to the Treatment of Prisoners of War"), they still deserve more limited protections under the Fourth Geneva Convention ("Geneva Convention relative to the Protection of Civilian Persons in Time of War") and the First Additional Protocol to the Geneva Conventions. http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5LPHBV/%24File/irrc_849_Dorman.pdf 3rd and most definitely from the 4th Geneva Convention: "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." http://www.unhchr.ch/html/menu3/b/92.htm Doesn't get much plainer that the Geneva Convention covers them. In addition, the 1st Protocol to the Four Geneva Conventions specifies that a competent standard of care applies to all personnel captured "Neutral and other States not Parties to the conflict shall apply the relevant provisions of this Protocol to persons protected by this Part who may be received or interned within their territory, and to any dead of the Parties to that conflict whom they may find." and "A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed. " Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities." "Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, an such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention." Do you still say the Geneva Conventions do not apply? BTW, we have also been guilty of violating the missing persons act of this protocol by Rumsfeld's policy of secret detentions. "(a) Record the information specified in Article 138 of the Fourth Convention in respect of such persons who have been detained, imprisoned or otherwise held in captivity for more than two weeks as a result of hostilities or occupation, or who have died during any period of detention;" http://www.unhchr.ch/html/menu3/b/93.htm I will concede that Al Qaeda detainees but possibly not all Taliban members are not POW's if you will acknowledge they are still covered under the Geneva Conventions as demonstrated above. This is pretty basic stuff and trying to argue that none of the Geneva Conventions apply just lowers the standing of the United States in the world. -- Gary Denton Easter Lemming Blogs http://elemming.blogspot.com http://elemming2.blogspot.com
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