Bush is in a big sweat to rewrite history

[John_Mace]

@Frank

The law changes (in this area) are to serve three purposes, as I understand them. To ensure that agent’s actions are legal under American law, to protect agents from being extradited and prosecuted under foreign law, and to protect agents from international trials such as Milosevic’s and Taylor’s.

My solution is more simple: they shouldn’t break American law; if they break foreign law in the course of their duties and get caught, they pay the price; they shouldn’t break international law.

I don’t recall the U.S. freeing Russian spies because their actions were legal in Russia. (The U.S.S.R., I should say.)

Correct. As I understand it, though, there are two issues going on here. One is the need to define the procedures for the detainee trials, and another is what is acceptable practice in the field under Article 3. That second issue is further broken down by what we allow our solidiers to do and what we allow CIA agents to do. I can see that we might want to have different sets of rules for those two groups. I don’t claim to know much at all about the CIA or how they opperate, but I assume they get involved in some shady activities. I’m not saying I want them going around torturing people, but I don’t think they necessarily need to be reading Miranda rights to the folks they deal with either. We did put a lot of restrictions on the CIA during the 70s and 80s, and it’s probably time to relook at that.

[Contrapuntal]

@BarnOwl

I don’t know. Please tell us.

My guess is the answer is nowhere, nothing, none, and none. But since you stated that they exist, it really is up to you to explain what you were talking about, or admit that you do not know what you were talking about.

Or did you just do that? If that is the case, how can you expect anyone else to?

[BarnOwl]

@Contrapuntal

My guess is the answer is nowhere, nothing, none, and none. But since you stated that they exist, it really is up to you to explain what you were talking about, or admit that you do not know what you were talking about.

Or did you just do that? If that is the case, how can you expect anyone else to?

Geez Miss, I quoted a professor at G. Washington U. Not good enough? I’m sorry.
Truly and politely. I’m also sorry if all this got your tit in a ringer, maam.

[Bricker]

@BarnOwl

I don’t know. Please tell us.

I don’t believe any such international law “felonies” exist. But I’m always willing to be educated. You made the claim - what is your cite? Could it be you misunderstood what you were hearing?

[Bricker]

@BarnOwl

Geez Miss, I quoted a professor at G. Washington U. Not good enough? I’m sorry.
Truly and politely. I’m also sorry if all this got your tit in a ringer, maam.

It’s a simple matter of being in the GD forum, where you may be required to back up factual assertions you make with cites. When requested, it’s not particularly useful to act offended or surprised that your claims are questioned - you simply substantiate them or withdraw them.

[BarnOwl]

@Bricker

It’s a simple matter of being in the GD forum, where you may be required to back up factual assertions you make with cites. When requested, it’s not particularly useful to act offended or surprised that your claims are questioned - you simply substantiate them or withdraw them.

Goodie. Cite: Coundown, 9/15/06. I have the program on DVR. Come by and I’ll play it for you.

[ElvisL1ves]

@Bricker

Where, exactly, are these international law felonies defined? What is the penalty for each of them? What court has jurisdiction to try them? What rules of evidence will be used?

Yet another Bricker post entirely about the pettifoggery of the technical details, entirely ignoring any actual substance. Yet there is value in exploring the topic anyway, I suppose.

All your questions had answers found for them at Nuremberg, by those interested in finding them instead of complaining that there weren’t any defined yet. The Milosevic case provides more recent precedent as well. Ref.

[Guinastasia]

@BarnOwl

Goodie. Cite: Coundown, 9/15/06. I have the program on DVR. Come by and I’ll play it for you.

Or, you could just go to the MSNBC website-they do have transcripts, you know. (Although it appears that the one for the 15th is not yet available).

[BarnOwl]

@Guinastasia

Or, you could just go to the MSNBC website-they do have transcripts, you know. (Although it appears that the one for the 15th is not yet available).

I did already, and I’ll get it when it becomes available. But thanks.

[Contrapuntal]

@BarnOwl

Geez Miss, I quoted a professor at G. Washington U. Not good enough? I’m sorry.
Truly and politely. I’m also sorry if all this got your tit in a ringer, maam.

Bricker asked you what constututes these felonies, and your direct answer was “I don’t know.” Taking you at your word, that means that you do not know. Combining that with the knowledge that you were the one who first made mention of said felonies, I conjectured that you did not know what you were talking about. Please correct me if I am wrong.

[Hamlet]

@Bricker

Where, exactly, are these international law felonies defined? What is the penalty for each of them? What court has jurisdiction to try them? What rules of evidence will be used?

Maybe I’m misinformed, but doesn’t the War Crimes Act of 1996 allow for the prosecution of violations of the Geneva Convention? I’m not saying there is any way in the world that the Justice Department would charge Bush with anything, but it certainly is legally possible isn’t it?

Also, doesn’t the UN have the authority to prosecute for violations of the Geneva Convention and the UN Charter? Look at Milosevic and Charles Taylor of Sierra Leone, for example.

There also have the ICC to consider. I know this administration has repeatedly said that they cannot be bound because they are a non-signatory, but, given this administration’s track record of making baseless legal arguments, I’m not sold.

I honestly don’t know one way or the other, so please, do educate me on this issue.

[John_Mace]

@Hamlet

Also, doesn’t the UN have the authority to prosecute for violations of the Geneva Convention and the UN Charter? Look at Milosevic and Charles Taylor of Sierra Leone, for example.

Doesn’t the UN need the approval of the UNSC to procede with that type of action? I think there would be at least one veto in Bush’s case. For example, the tribunal linked to by Elvis was establised by UNSC Resolution 827 (warning: PDF). AFIK, there isn’t some standing UN court to handle this sort of stuff.

[Revenant_Threshold]

@John Mace

Correct. As I understand it, though, there are two issues going on here. One is the need to define the procedures for the detainee trials, and another is what is acceptable practice in the field under Article 3. That second issue is further broken down by what we allow our solidiers to do and what we allow CIA agents to do. I can see that we might want to have different sets of rules for those two groups. I don’t claim to know much at all about the CIA or how they opperate, but I assume they get involved in some shady activities. I’m not saying I want them going around torturing people, but I don’t think they necessarily need to be reading Miranda rights to the folks they deal with either. We did put a lot of restrictions on the CIA during the 70s and 80s, and it’s probably time to relook at that.

With respect, you seem to be saying “we should let CIA agents do these shady things, but not these shady things, which is why this is an important question”, and that’s a fair point. But what’s stopping us from saying, ok, CIA agents aren’t allowed to go around torturing people, but can go without reading Miranda rights? You don’t just have to give them carte blanche for any grey area activity. The changes to this law don’t seem to give the CIA any new abilities in the good side of the grey area, at least to me; so while this is an important question, bringing up said shady things they may need to do doesn’t seem relevant.

[Hamlet]

@John Mace

Doesn’t the UN need the approval of the UNSC to procede with that type of action? I think there would be at least one veto in Bush’s case. For example, the tribunal linked to by Elvis was establised by UNSC Resolution 827 (warning: PDF). AFIK, there isn’t some standing UN court to handle this sort of stuff.

From my brief research, you are correct. Like Milosevic’s criminal tribunal, the Security Council must establish a tribunal, which is usually preceded by the creation of a Commission of Experts to investigate potential violations. Not that anything like that will happen over Abu Ghraib, Guantanemo, or these secret prisons, but I think there is some apparatus in place for violations of international law.

[John_Mace]

Watching one of the news shows the other day (can’t remember which one) some legal talking head was saying that there is already well established jurisprudence defining what is and is not kosher under Article 3. I have no idea if he was right or not, but do any of our resident legal experts have an opinion on that? And if it’s true, does that establish jurisprudence include precedents set by other countries?

[ElvisL1ves]

The International Criminal Court

was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court. The ICC is designed to complement existing national judicial systems: the Court can only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes, thus being a “court of last resort”. Primary responsibility to exercise jurisdiction over alleged criminals is therefore left to individual states.

[Sevastopol]

The argument to kill the proposal has always been the easy one: "You OK with other countries doing to US troops what we do?*

[Frank]

@ElvisL1ves

Yet another Bricker post entirely about the pettifoggery of the technical details, entirely ignoring any actual substance. Yet there is value in exploring the topic anyway, I suppose.

It is typical Bricker pettifoggery, but it’s still a valid question. Given the assumption in the OP that Bush is trying to change the law to protect himself, the question naturally arises: protect himself from what?

All your questions had answers found for them at Nuremberg, by those interested in finding them instead of complaining that there weren’t any defined yet. The Milosevic case provides more recent precedent as well. Ref.

That’s a good point, but even given a competent tribunal, we still have to prove that Bush either ordered or had knowledge of crimes committed by his agents. I don’t think we have that. Yet. I do take some hope, however, in remembering how quickly Nixon’s stonewall fell apart once it started to crumble.

[John_Mace]

@ElvisL1ves

The International Criminal Court

What’s its jurisdiction?

Universal jurisdiction

Some have argued that the crimes the ICC has jurisdiction over are recognized under international law as crimes of universal jurisdiction, meaning that any state may try individuals who commit these crimes, even if they are committed by foreign nationals on foreign territory. From this perspective, the state parties could therefore have authorized the ICC to exercise this universal jurisdiction on their behalf. That is not what the state parties did, however - they have chosen to limit the court’s jurisdiction to what is allowed under nationality and territorial jurisdiction. Jurisdiction based on a Security Council referal could be seen as a case of universal jurisdiction, but it could also be viewed as another (sui generis) jurisdiction based upon the UN Charter.

The choice not to make use of universal jurisdiction is in part a pragmatic choice – if the ICC were to claim universal jurisdiction, the opposition to it (from the United States, etc.) would become much more vocifierous. But it was also a choice influenced by legal considerations: the concept of universal jurisdiction itself is controversial; not all the crimes for which the Rome Statute provides the court with jurisdiction have been proposed as being subject to universal jurisdiction at the present time under customary international law; and some have argued that even where universal jurisdiction exists it is non-delegable.[9]

[ElvisL1ves]

The Rome Statute authorizing it seems to have superseded earlier ad hoc tribunals, such as the Former Yugoslavia one. From the relevant text, for all you textualists out there in Dopeland (bolding added for the easily bored):

Article 8
War crimes

1.     **The Court shall have jurisdiction in respect of war crimes ** in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 
   

2.     For the purpose of this Statute, "war crimes" means: 
   

(a) **Grave breaches of the Geneva Conventions ** of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv) **Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment ** which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(x) **Subjecting persons who are in the power of an adverse party to physical mutilation ** or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;

(xii) Declaring that no quarter will be given;

(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;

(xvi) Pillaging a town or place, even when taken by assault;

(xvii) Employing poison or poisoned weapons;

(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, 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:

**(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; **
(iii) Taking of hostages;

(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(v) Pillaging a town or place, even when taken by assault;

(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

(ix) Killing or wounding treacherously a combatant adversary;

(x) Declaring that no quarter will be given;

(xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;

(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.
3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.