An L.A. Times article got me thinking about something. The point of this thread is to give those who are more educated in the subject matter a chance to fight my ignorance and tell me where my picture of this is wrong, because I have a strong feeling it is.
My image of Guantanamo Bay was that it was intended as a prison for war criminals, where those held are thought to be suspects of a specific crime which the US is trying to uncover; not a POW camp, where soldiers are held under the mutual assumption that they didn’t commit any crimes, they just fought for their side, and they’re not in any kind of jeopardy. I got this idea because there’s a lot of talk about–and also in this article–about tribunals/trials that take place there:
Am I reading this right? Is just fighting in a war against the US a crime? Can people be charged criminally for being born in a culture where they were drafted to fight adversary military operations–not acts of terrorism against civilians? If so, is there precedent for this in other, more traditional wars?
Broadening the scope of your question a little allows some simple analysis. Generally fighting for your side in any war is not a crime, it is your national duty. However, when you cross over into breaches of the Articles of War and the Geneva Convention, things get gray quickly.
Many countries did not sign the Geneva Convention. Many that did noted its many loopholes. And it is generally a Western document.
The simple examples of being a warrior changing to being a war criminal are such as the guards at German extermination camps during WWII. In this case, you have guards following their orders, but the orders being a crime against the Geneva Convention. The guards were expected not to follow them, and several were punished for “just following orders”.
It gets confusing quickly when you aren’t fighting a country, but more like a movement. This is our current situation. If they aren’t prisoners of war, then what are they? If holding them is a crime, shouldn’t the officers and soldiers refuse to follow the order to hold them? If they follow the order, is it a war crime?
Most of the prisoners at Guantanamo have not been charged with any crime, nor does the Bush administration consider them prisoners of war. The prisoners are being held as “illegal combatants” - a designation that has no definition under treaty or law. Qari Esmhatulla is being held not because it was illegal for him to fight as a member of Afghanistan’s armed forces, but because the Bush administration doesn’t want him to be free. I don’t have any facts as to why this particular prisoner is being treated this way, and since this is GQ I won’t speculate.
I would wager that Qari Esmhatulla failed to follow part (b) of the above, and conducted combat while in civilian clothing. It should be noted in a previous case during WWII, German agents dropped off by Uboat during WWII in civilian clothing (and then captured) were tried by military tribunal, and most of them were hung.
In the Quirin case the Supreme Court defined unlawful combatants as those who participate in war and at the same time violate the laws of war. For example, spies and soldiers who penetrate the lines of combat while not in uniform are unlawful combatants under this doctrine. The court held that unlawful combatants may be treated as arrestees - that is, held as suspected criminals and subject to trial. The Bush administration maintains that the prisoners in Guantanamo are entitled to be treated neither as POWs nor as arrestees. That is, the Bush administration has redefined “unlawful combatant” as someone who has no rights as either a POW nor as an arrestee - they are not protected by the Geneva convention, nor do they have any of the protections normally given to those accused of crimes.