----- Original Message ----- From: "Gary Denton" <[EMAIL PROTECTED]> To: "Killer Bs Discussion" <brin-l@mccmedia.com> Sent: Tuesday, June 14, 2005 7:07 PM Subject: Re: Gulags
> 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. (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?.) Lets see what Article 5 says: <quote> The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. <end quote> If they did not have a clear sign, recognizable at a distance, if they were determined to be AQ, then the US could say they didn't have a doubt and no tribunal was needed. That may be a bit lawyerly, but it seems to match the plain sense of article 5. I don't think that Bishop Berkley style doubts count, either. > 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. I'm a bit confused as to what point he was making. That AQ was not party to the conflict with the US? I'd argue that they were the senior party and that the Taliban were the junior party...who harbored them and gave them a safe base from which to stage attacks. > ""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. Who's "we"? I think it is reasonable to assume that that is a determination that can be made in the field of whether they had a distinguishing feature recognizable at a distance. > "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. IIRC, they got back a legal review and grudgingly accepted that the Taliban probably qualified. > "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. That is a reasonable arguement. But, the question is, what sort of protection do they deserve.. Do they deserve protection against unpleasantness, as do real POWs? Is anything that could be called undignified unacceptable. Take the case in Time magazine. If this is the extreme treatment that was only authorized for a few high value prisioners (like the probable 20th hijacker) is that acceptable, or must > "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. But, the paragraph that I quoted came _immediately after that. Let's put them together: "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 took the meaning of this as "the persons protected are as defined in paragraph 1 except under the conditions listed in paragraph 2." > > "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. I think this is your strongest point. My quesiton is, given this clause, what value is there in being a POW? Why bother declaring a right is forfit if it is given back in the next breath? I'm not quite sure what the intent of the entire paragraph is....or why they bothered declaring who was and who wasn't a POW in this protocal. > Do you still say the Geneva Conventions do not apply? That one paragraph I mentioned does indicate that it does, but I think that the one you said was crystal clear really isn't....because of the second paragraph. I'm curios what your point of view is. Should we have freed all members of AQ that we could not prove committed war crimes? Should we have just refrained from torture? Should we have ensured that there were no "unpleasant results" from not answering questions....I presume this includes the witholding of privledges that one is not required to grant. No carrot, no stick at all, is the way I read the Geneva Conventions on POWs. Is that what you think should be the case? > 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. If it were that simple, then why do people use false logic to make their points? You are the first person that I've seen bring up that paragraph with regards to the convention in order to argue that it is an expansion clause. That is, BTW, the best argument that I've seen for the AQ having protection equivalent to POWs. If that were the case, then it seems to me that the Geneva Convention states we cannot use any carrots or any sticks when questioning terrorists. The exception would be to treat them as common criminals, but that model was fairly ineffective. One example of this was AQ stopping the use of cell phones after they found out, from testimony in the initial WTC bombings that the US used cell phone transmissions to follow them. I think it's a difficult problem that's worth discussing. I get the feeling that you think that all we need to do to protect ourselves against AQ and the like is improve the morality of the US foreign policy. If this is not the case, then we could have an interesting discussion. If it is; we can still discuss it, but I'm not sure it would be as informative. Dan M. Dan M. _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
