Thanx for your input Haj, I should let you know David Hicks was in fact captured by what we know as the ‘Northern Alliance’ and handed to US authorities on the 17th of December.
Also, the conditions under which Hicks and others are being held are largely unknown to the public. Prisoners can be seen from outside the camp for brief periods exercising. The Red Cross is still in there however none of the Red Cross’s recommendations have been made public. To my knowledge no inmates have been allowed visitation by family, lawyers or the media.
waterj2 said that Hicks, if declared a POW can be held for the duration of a war. If Hicks is to be held for the duration of ‘a war’, we need to clarify which war we are talking about. Are we talking about the ‘war on terror’ and Al qida, or the war on Afghanistan and the Taliban? Will an attack on Iraq be seen as an extension of the same war? And what if the US goes further then Iraq, attacking other nations on the “axis of evil”(a cold war propaganda term remade to inspire new fear). Times are changing; people increasingly expect governments to take as a primary consideration Human Rights. Suggestions that it is ok for us to abuse these rights a little, because other regimes abuse them a lot, are not convincing.
Some people on this thread have proposed that these men to be sent back to Australia to face a trial there…
But on what basis could they be face a trial in Australia? Let’s assume that an american citizen fought for, say, Somalia and was made prisonner by Erythrea during their last war. Then Erythrea agrees to send him back to the US, if he’s trialed there. But for what exactly this guy could be prosecuted?
Seems to me he can’t. So, I guess Hicks couldn’t be prosecuted in Australia. Except if there are evidences he commited some crime beside fighting the Northern Alliance/ USA…
that’s part of the issue, clair. If Hicks is returned to Australia, apparently we could try him here but there is no provision for years in jail.
It’s a grey area but the fact that a national of one country is being held by another country without being declared a POW or given a fair trial is not good. I can fully understand why the US doesn’t want to release Hicks to Australia (and I suspect Little Johnny is glad not to have to figure out WTF to do with him ) but it is not a good precedent for these men to be held without prospect of a trial or the status of a POW.
I’d be OK with him as a POW with the rights of a POW or with a trial date set. Now that the decision has been handed down that he can’t be chargedun US law, a solution needs to be found.
If one is to suppose that the Taliban and the terrorists are distinct, rather than one and the same, then the above exclusion of protection of the terrorists by either the POW or Civilian Geneva Conventions follows, and the USA position is legally defensible in as far as those conventions apply.
But it does not end there. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment would then apply, for it is the catch basin for all non-convicted detainees. It sets out basic legal and human rights, including the rights to communicate with counsel and with family. It sets out rights to due process including the right to information as to one’s status and the right to a hearing. I believe that the USA is in contravention of this international law.
The USA can do whatever it pleases, but it would do well to act with the highest regard to human rights. One can not have due process without first establishing a process. As difficult as it is to do so, I think it is well time the USA decides what the process will be, and I hope that whatever process it establishes, that it follows principles of international human rights law. With the greatest respest for a nation that has suffered a horrific and entirely unjustifiable attack, I still must submit that sub rosa detention for an indefinite period does not cut the mustard.
I don’t have a clue as to what the prisoners are being held on, but I think that at a minimum they can be detained pending trial for complicity in genocide. But that leads us back into the due process arena, and without a process, there cannot be due process, so yes, by international standards, the prisoners are being illegally detained for the time being.
The longer the USA waits to define and implement a process, the greater the possibility that such illegal detention will be used as a defence or a mitigating factor, so I hope that the USA gets on with it.
I believe that a declaration of war against al-Quaida and the Taliban should have been made. Legal precedent for this is quite clear. Thomas Jefferson declared war on the Barbary Coast pirates without naming a country.
That said, al-Quaida and the Taliban don’t meet the criteria for prisoners-of-war, for several important reasons:
The use of a uniform separates the military from civilians, thus protecting civilians from military action. The enemy here did not wear uniforms, thus making them ineligible for protections afforded under the Geneva Convention.
The military generally lives in bases or garrisoned camps, away from the civilian population, again protecting noncombatants. Again, the enemy here deliberately lived in close proximity with civilians in an attempt to hide and have readily available human shields.
Hi Opal.
Constitutional protections are for citizens and legal residents. The judicial system, too, isn’t suited to deal with extraterritorial issues of this nature.
Military tribunals, conducted fairly, are in order. There is ample legal precedent for this course of action. While this is pursued, the prisoners have basic human rights that must be observed, but their actions cannot be allowed to continue their participation in the conflict.
Mr Moto, I can’t for the life of me figure out what on earth you mean by
“but their actions cannot be allowed to continue their participation
in the conflict.”
I don’t think anyone here is saying that Hicks should have been allowed to continue playing Taliban Boy Soldier because he was an Australian citizen. The issue is how, when and where he is going to get a fair trial.
Have you got a cite for that uniform thingy BTW? I’m trying to figure out how Resistance fighters in WWII were treated as POWs when they never wore a uniform and they lived amongst the populace.
The uniform thingy is found in the Geneva Convention relative to the Treatment of Prisoners of War as linked to in one of my previous posts. However, it is not an absolute requirement, and it is only one of several indicators.
The USA has previously accepted that uniforms are not requisite. Viet Cong fighters captured during the Vietnam War were eventually given POW status, despite the fact that they wore nondescript black clothing with no insignia.
The most recent changes to the Geneva Convention are the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), and the parallel Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).
If you dig about articles 43 through 47 of Protocol 1, you’ll find that the combatants do not necessarily have to wear a uniform, and do not necessarily have to live separate from the civilian population. Even if they do transgress in these areas, they retain the right to go before a tribunal before they are stripped of POW status, and even if they are stripped of POW status, they retain the right to be treated in the same manner as POWs.
As far as Hicks goes, he could be considered a mercenary, and thus not covered by the Protocol, but that still leaves a few thousand prisoners not being afforded due process under the Geneva Convention.
The irony of it all is that as far as I recollect, neither Afghanistan nor the USA have signed on to Protocol I.
I think that at some point, one must conduct a sniff test. The Geneva Convention is about international wars, but only between nations and quasi-nations, so it really does not fit. The USA’s criminal code is not about international wars, so it does not fit. The old Jeffersonian bit about pirates being subject to military tribunals actually fits, but runs the risk of being rough justice without attention to due process. That’s where I think the USA would do well to prosecute for complicity in genocide, and preferably should have the prosecution done through the International Criminal Court (that’s the UN court that the USA does not want to recognize), for that is just the sort of thing for which it was created.
The bolding is mine. The 9/11 attack on American civillians as part of a religious Jihad precisely fits the definition.
But it really does not matter whether the prisoners are charged with complicity in genocide or some other appropriate crime. My concern is that they are not being charged with anything, despite being detained, and despite not being afforded internationally accepted rights as POWs or non-POW detainees. Pick the charge however you like, but get the process in reign with basic human legal rights.
With what specific codified offence under what jurisdiction would you have them charged?
Look Muffin charging them with genocide would be a good idea, if the world was a court & all the people in it lawyers.
But it ain’t.
If you call the crime “genocide”, then the American people (not the government, but the people) will jump to all the wrong conclusions. And call for even more drastic responses to the percieved threat of each & every American being wiped out.
I strongly believe that this would result in a much more generalized response against the entire Islamic world. A radical, hyper-violent one.
And, to all the other Dopers–no innuendoes like “hyper-violent? what do you call what the US is doing now?” That’s garbage. The US is not trying to carpet-bomb city centers, or cluster bomb public gatherings.
But there are rabble rousers here in the US calling for such inappropriate actions! If the public gets the false idea that “Islamics want to put us all in concentration camps”, the Pat Buchannans (sp?) & other ultra-radical opportunists will come out of the wood work to take advantage of the fear, confusion & xenophobia that will reign supreme.
Remember–the word genocide is most closely linked in people’s minds with concentration camps. If you start using the term, people will start thinking that such camps are part of some “Master Islamic Plan”. We have zero evidence of the existance of such a plan.
Instead, try the charge of Crimes Against Humanity. Is that a proper charge? I believe it was at one time.
Crimes Against Humanity would do the trick, and if that helps avoid a backlash, that is a good thing. Although coached in WWII terms from the Nurnberg trials, and implying a war between states, I do not think that such a nexus is necessary to make a charge of Crimes Against Humanity stick.
The charge of Genocide is simply a more recent clarification and codification of a subset of Crimes Against Humanity that takes into account the tribalist (in the broad sense) nature of most Crimes Against Humanity, and broadens the catch basin to include people who are in complicity but not necessarily ordering or pushing the button themselves.
The one thing that troubles me is that unlike Complicity in Genocide, which does not set out an objective degree of participation, the charge of Crimes Against Humanity requires participation in the formulation or execution of the act. I could be entirely incorrect, but I think that a person who was sitting about in Afghanistan and was knowingly part of an organization that was dedicated to a Jihad against American civilians, could be found to be in complicity in the overall actions taken by the organization without actually having participated in the formulation or execution of those actions. Thus my preference for a charge under Complicity in Genocide.
How about just killing people, attempting to kill people, conspiring to kill people, terrorizing people etc. ?
I agree they should be charged and afforded due process of law or formally declared POWs or let go. Anything is is a travesty of what the US is supposed to stand for.
That should work nicely for those with hands on participation. I don’t know if it would work for those who were members of the terrorist organization and resisted the western troops in Afganistan, but did not play active roles in 9/11.
Whatever the charge, be it murder or aggravated mopery, I just wish the USA would get on with putting something in place which provides for basic human legal rights.
There are three sorts of charges that could be made: something created fresh for the situation; existing USA criminal code charges; or existing international criminal law charges.
Something created specifically for the situtaiton can be done (as it was for Nurnberg, but would risk being thought of as a kangaroo court by many people presently sitting on the fence as to their opinion toward the USA.
Existing USA criminal code charges could be used, but it would be extremely difficult to reconcile prosecution under the USA criminal system without permitting a full defence under the USA criminal system. Sweeping the defence issue under the table would again raise kangaroo court acusations.
Existing international criminal law charges could be used, hopefully with fewer kangaroo court accusations due to the charge not being a USA charge, the process not being a USA process, and the delay in instituting legal rights more explicable due to the uniqueness of the situation under international law.
In short, the more the USA controls the process, the tougher the time it will have justifying its actions, whereas the more the international community controls the process, the easier the USA will have in justifying its actions. Either way, time is of the essence, for the longer the prisoners are denied basic human legal rights, the more problematic it will become for the USA within the international community.
