I think it’s rather sad.
Nonsense. Think back to WWII, when soldiers from both sides were routinely executed when they were captured in civilian clothing.
We went over and over the Geneva Convention issues 'round about the time of Our Winter of Missed Content. I was and am firmly convinced that the detainees in Guantanamo are not covered by the Convention, though it is somewhat of a close call with respect to the captured Taliban fighters. Nevertheless, I have grown more and more disturbed over the Bush admin’s refusal to take any steps towards resolving the status of the Guantanamo prisoners. I’m also quite sure we’re not going to see any additional movement until the end of Bush’s term in office.
This part of the GC entered into force in 1950. One may as well “think back” to the Crusades.
Articles 4 & 5 plainly relate to a militia without a specific uniform, and indeed the entire point of those articles is to bestow PoW status on anyone until the competent tribunal decides otherwise. Read article 5 again. Pow status is the default.
If there is evidence of deliberately concealing arms or acting in violation of the laws and customs of war, they can be tried as war criminals. However they are absolutely, definitely, undeniably Prisoners of War until that trial.
I’d like to see a cite about the “routine” execution of “soldiers from both sides” in civilian clothing. There were those Germans who were landed on the East coast. That was a more or less open and shut case of people being inserted for the purpose of sabotage. Were there others on which you have data?
However, I’m glad to see that your are more and more disturbed by the administration’s stance. I just wish someone in authority would get a little disturbed too.
If you just bury people in an out-of-the-way gulag type of confinement and shut up, the world “moves on” and forgets all about them.
I guess I’ll reread The Trial by Kafka, which baffled me the first few times through but is making more and more sense the further we get into the GW-Ashcroft-Rummy Schutzstafflel operation.
Yes, this has been discussed before. The wearing of a uniform is just one of the considerations mentioned in the Geneva Convention to determine whether a combatant is lawful or unlawful but it is not the only consideration and is not sufficient, per se, to make a ruling. In any case, it is up to the courts to determine this and the executive’s refusal to submit the issue to the courts is sufficient to consider the government of the USA is in breach of the law.
Courts determine matters of fact and of law, not the executive. It is not sufficient for the Executive to say “take my word for it, we need no trial, the men are guilty”. Or is the USA a Banana Republic?
You do realize that American forces have been doing the same thing in Iraq and Afghanistan? They have been wearing local garb as a way to blend in with the population. Would you also agree that, if captured, they are to be considered “illegal combatants” and denied POW status?
One further point puzzles me:
If the crime of these people was dressing up like a civilian and concealing their weapons…
…how do we know they’re not civilians who had concealed weapons?
Apparently I’m going to have to go over the Geneva Convention yet again, since I can’t just link to the Missed Content. Dammit.
The basic law is quite simple. The GC only affords a prisoner status as a P.O.W., and the rights applicable to P.O.W.'s, if the prisoner fits into the following criteria:
The analysis is somewhat different for the Taliban and al Qaeda prisoners, but we’ll go down the categories anyway:
Sections (1) and (2) do not apply because the Taliban were not the internationally recognized govenment of Afghanistan (that was the Northern Alliance), and they were therefore not a “Party” to the Convention. Since the Taliban were not a “Party,” all the stuff about militias and volunteer corps supporting a Party is irrelevant.
Section (2) is further inapplicable because of the specific requirements that the militia members bear “a fixed distinctive sign recognizable at a distance,” carry arms “openly,” and conduct operations “in accordance with the laws and customs of war.” The Taliban and al Qaeda were not real big on wearing appropriate insignia. It’s at least questionable whether al Qaeda carry arms openly, what with all the car bombs and such, and neither group conducted their operations in accordance with the laws and customs of warfare.
Section (3) does not require status as a Party, since it applies to “Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” But it does require the prisoner to be a member of regular armed forces. Now you might be able to shoehorn rank and file Taliban soldiers into that category, but that’s a stretch to me. They had little or no formal command structure, no uniforms, no insignia, and basically none of the normal criteria of “regular armed forces.” No way do al Qaeda fighters fit the bill.
Sections (4) and (5) are inapplicable on their face (as are the major Parts B & C).
Section (6) might be thought to have some application, except that Taliban and al Qaeda did not “on the approach of the enemy spontaneously take up arms.” They took up arms long before the Special Forces landed in Afghanistan. And again, you’ve got that whole “carry arms openly and respect the laws and customs of war” thing, which is more than a little problem.
It is correct, as some have noted, that Article 5 provides for “a competent tribunal” to determine whether the captured person is entitled to P.O.W. status. But that provision only applies if “any doubt arise[s] as to whether persons . . . belong to any of the categories enumerated in Article 4.” Doubt does not airse based merely on speculation. Doubt requires actual evidence, and nobody has provided any evidence yet that would show any of the G’mo prisoners qualifies under any of the Article 4 definitions.
Sorry, mate:
The burden of proof is quite clearly with the High ontracting Power. Under your definition, it would be essentially impossible for anyone on the side of a de facto government to fight a War. Also, you presumably do not believe PoW status is due many Allied troops, nor those of the Northern Alliance? Should the similarly attired Northern Alliance fighters be detained for their uniform-related war crimes?
Come, minty, you are an intelligent sort. Do you honestly believe that the Convention was not meant to cover war involving a nation with a de facto government?
This is just plain silly. The US government has said it does not consider them to be POW and has accused them of wrongdoing. If the US government is coherent it has the obligation of ensuring they get a speedy trial to determine whether they are, in fact, guilty of the wrongdoing they are being accused of.
I am not advocating one position or the order, I am just pointing out that the USA is being incoherent. If the guys are considered POW then treat them as such. If they are considered to have broken any laws, then treat them as such. But the US government is not doing one or the other. It has just kidnapped these people and is denying them their most basic human right to not be deprived of their freedom without due process of law.
Do you mean a circus trial like the one which convicted Ramzi Yousef and an accomplice of the original World Trade Center bombing?
Or do you mean a circus trial like that of Moussaoui, where Judge Brinkema has basically shut down frivolous motions but is also requiring the government to allow the defense access to exculpatory evidence (as a result of which Moussaoui, regardless of citizenship, may be sent to Gitmo for a tribunal)
Given that our government has, in the past, successfully held trials involving both terrorists and trials involving classified information and espionage, why would a civil trial be doomed to be a circus of propoganda? Or is it possible that a civil trial is distasteful because it would bring up questions of jurisdiction and require a previously defined crime?
I have far more faith in our judicial system then you dou, Daisy Cutter
Meat, that provision you quoted has nothing whatsoever to do with whether the Taliban were a “Party” for P.O.W. status. It simply says that the Convention applies to all conflicts between two or more Parties.
The U.S. is a Party to the Convention. The Taliban and al Qaeda are not Parties to the Convention. Therefore, the conflict between the U.S., the Taliban, and al Qaeda is/was not governed by the Convention.
Now, if you’re hung up on the last sentence in that quote, allow me to reprint it with emphasis added to the part you seem to have missed:
“Mutual,” as in “given and received equally” or “possessed in common.” The entire framework of the G.C., after all, is that the signatories agree to treat each other by its terms, not everybody.
Nonsense. Just make sure you’re “regular armed forces” of that de facto government and you fit right in under section (A)(3). That means put on some uniforms, work within an established command structure, train your troops, abide by international rules on the conduct of warfare, etc. Your standard guerrilla force, obviously, would not qualify–nor should they.
The Taliban and al Qaeda would certainly not be governed by the G.C. in their treatment of any Allied prisoners. They’re not Parties to the Convention, after all. They would, however, still be subject to other relevant aspects of international law, particularly basic human rights laws that are supposed to be universally enforced and enforceable. (Fat luck with that, however.)
Huh? Nobody’s saying it’s a “war crime” to fight a war without a proper uniform. It just means that you might not be covered by the Geneval Convention’s provisions on P.O.W.'s if you get captured that way.
Apart from that, however, do note that the Northern Alliance are a Party to the Convention. As such, they would be due every obligation of the Convention if they were taken prisoner by another Party.
I do not need to discuss the issues being discussed here to know the US government is in the wrong just like I do not need to discuss whether I believe a person is guilty or not to know he cannont be held indefinitely without being tried. What the detainees were wearing, what they did or did not do is irrelevant. They deserve they day in court and as long as they do not get their day in court to determine what are their rights and their guilts i will continue to say the US government is infringing the most basic human right to freedom.
Having said that, the Geneva Convention does not make the absolute assertion that not wearing a uniform leaves you out of ist protection and it admits people who have taken arms to resist an invader would be covered even if they wore no uniforms. The fact is that these things can be argued to death and they should be settled by the judiciary. That is why we have judges. I find it incredible that anyone would say that a legal case is so obvious it does not need to be brought before the judge. Especially in this case where it is most obviously NOT obvious and much subject to discussion.
I agree that something needs to be done to resolve the status of these detainees. I disagree that the Geneva Convention mandates anything in particular, or that it even has any application.
I also reject the notion that judges/the judiciary must or should resolve the issues regarding these prisoners. There is no fundamental human right to have any and all potential disputes solved by a court.
Frankly, I don’t care who resolves this problem, or how they go about it. My only complaint is that some mechanism needs to be adopted to fairly distinguish the guilty from the innocent. I don’t care whether that’s a court, or a jury, or a military tribunal, or a panel set up by the CIA and the Department of defense. Continued delay in resolving those questions, however, is unconscionable.
>> There is no fundamental human right to have any and all potential disputes solved by a court.
Not any and all but those affecting major issues of the government infringing on a person’s right to freedom and life. The government cannot be accuser, judge, jury and executioner. Separation of powers was invented for a reason. Checks and balances. Rule of law. That is what separates civilised countries fom banana republics.
Why? So long as the mechanism for determining the dispute is fundamentally fair, why should it matter whether it’s a judge who carries it out? Is there something magic about judges that I’m failing to see?
I hate to break this to you, but courts are part of the government.
Interesting theory, but I don’t buy it. I love the division of powers in the American system, but they’re neither necessary nor sufficient for fairness and justice to prevail. What separates a civilized country from a banana republic is its commitment to fairness and justice, not the particular methods it uses to accomplish those goals.
Who defines fair? In western civilization fair is defined as the outcome of a certain process where certain procedures and guarantees are followed. By definition, once you remove those the process isn’t “fair”.
I know it very well and you know I know it and that I meant the executive branch.
wow. . WOW! So you are denying centuries of American and western civilization. So if president Bush tomorrow said he was denying those accused of drug offenses, or rape or child molestation or other heinous crimes the right to a trial before the judiciary and they would be “fairly” judged and sentenced by the police, you would not have a problem with that? WOW! I am speechless. I just can’t believe that. Every single civilized country has a separate judiciary to adjudicate the accusations of crimes brought by the government against individuals. Even countries where freedom is not so great have a (nominally) independent judiciary. And you are saying it is not really necesary? Wow. I don’t know what to say. I just can’t believe you can be serious. Please tell us you are not serious.
That’s crap. sailor, this isn’t the first time the United States has detained persons during wartime – the only difference is that we’ve chosen not to classify them as POW’s – because they aren’t, as has been demonstrated. But let’s assume for a second that they ought to be POW’s. Where do the POWs get lawyers? Where do they get trials? The only get them if they’re being charged with something besides being a POW. Just like here. The treatment is largely parallel. The differences that I can see are a) we’re not making these guys work and b) we’re not compensating them for their time behind bars.
POWs or not, enemy soldiers may be detained until the cessation of hostilities. Offensive operations against al Qaeda are still active, as are al Qaeda’s offensive operations against us.
You are trying to stretch a technical distinction into a substantive issue that just is not there. If they were POWs, they’d sit in Guantanamo until we beat al Qaeda. As illegal combatants, they’ll sit in Guantanamo until we beat al Qaeda.
manhattan, as far as I am concerned, taking into account the loads of blatant lies which the US government has been spewing and taking into account the conditions of incommunication under which the detainees are being held, and taking into account they are not allowed acces to lawyers, and considering the principle of “inocent until proven guilty”, it is my opinion that the US government is infringing on the rights of people who are not guilty of anything unil proven otherwise.
Declaring “war” on an organization and then saying you can hold people accused of belonging to it indefinitely without trial but they are not POWs is just so . . .
I mean, can we declare then war on the drug cartels and do the same with people accused of belonging to them? Pedofile rings? Where does it end?
Sorry, I’m not buying it.
Hold on and let me check if I care what you find despicable.
Nope, sorry, I don’t care a whit what you find despicable. However, I do care that you misrepresent my position. I’ve not done what you accuse me of. What I’ve labeled pro-terrorist is the lies. “They should gain POW status” is not pro-terrorist. Comparisons to gulags and death camps is sure as hell pro-terrorist. Lies about their treatment is pro-terrorist. And yes, supporting their release at this time is, by definition, pro-terrorist except for those who were taliban, not Al Qaeda and who are Afghani citizens. ISTR that all or most of those guys were sent back already.
Where, precisely, does “innocent until proven guilty” show up in the Geneva Conventions or elsewhere in the laws of warfare? If you’re picked up on a battlefield taking up arms against the enemy, you’re interned until hostilities are over. Always. This isn’t a new thing, nor is it particular to the Americans or this century or anything else. You’re making it up. When we took prisioners during WWII or Korea or Viet Nam, do you think there was a tribunal to find out whether they were really German or North Korean or Chinese or Vietnamese soldiers?
I don’t think you think that at all, and I question why you’re trying to invent new treatment wholesale here. I’d really like to know.