We do agree that US and UK forces execute missions which could essentially be described as “guerilla warfare”, don’t we? Is PoW status to be denied those caught in Special Forces missions and the like as well?
Special Forces types appear to be covered by Article 4(A)(1): “Members of the armed forces of a Party to the conflict . . . .” Nevertheless, it could easily be argued that you lose that status if you don’t wear uniforms and such, so they could be in trouble if they wear civilian clothes as a disguise.
This is the nub of my concern. For five decades the civilised world has not sought fit to weasel out of granting initial PoW status to its captured enemies as a matter of course, as is clear from the US Army regulations.
This latest development which allows a High Contracting Party to pick out loopholes in the specific wording of the GC in order to summarily decree all enemy combatants in a given location “illegal” is a break with this tradition, and IMO a highly unwelcome one.
Not according to my copy of the GC:
I have some problem with the status of “enemy combatants”. If these people are not POWs as given by the GC. Who was the US at war with? Was it a war or an extension of police power? Was Afghanistan an effectively ungoverned/lawless country and was the action justified under the same sort of grounds that the navy might use to fight pirates? But even then wouldn’t a “pirate” be a criminal and entitled to trial?
I wasn’t quoting the Geneva Convention. I was quoting the Army regs relied upon by SentientMeat.
Note also that your quote from the GC only requires a tribunal determination if “doubt arises” as to their status. If there are no facts to cast dount on the status determination, there is no tribunal.
I am surprised to see you run this line, minty. Apart from anything else, it contradicts what you’ve already said in this thread:
and
Ok, so you could make an argument. But you’d have to, right? And until such time as that argument has been made and won in front of a competent tribunal - where I suspect some of the Guantanamo Bay interned would be found not to be POWs - the Conventions state that they have to be afforded the rights of POWs. They haven’t been of course.
I see no contradiction in my statements. “Doubt” must arise with respect to the status of an individual detainee, and it has to be shown by actual or alleged facts that would place the detainee within the GC categories of POWs. I’m willing to concede that facts may exist in some cases that would create doubt as to the status of individual detainees, and hence entitle them to a tribunal determination under the GC, but ain’t nobody shown any facts so far that would do so. That being the case, I am unimpressed with the claim that these guys are entitled to a tribunal resolution of their states.
C’mon, show me the facts that would be capable of demonstrating those guys wore fixed insignia recognizable at a distance, followed the rules and customs of war, had a formal command structure, etc. Near as I can tell, none of those hallmarks of “regular armed forces” were true for the Taliban.
Also, your quote of my “arguably” statement is rather unfair, given that it deletes the rest of that sentence that clearly explained why they were not qualified for POW status.
I didn’t mean to be mean. My point was that - good or not - it remains an argument and not a fact. As does the issue of whether Taliban fighters fall under 4 A 1 or whether some other identifier holds sway.
I’m not arguing that they do fall under the Conventions. Indeed, I’m not particularly interested in whether they do. My concern is that they should be treated as though they were entitled to such treatment until they are found not to be so deserving by a competent tribunal as required by the Conventions.
Do I understand you correctly - you are saying that it is up to these people (who are difficult circumstances) to prove something to create doubt? Surely there is doubt until there is evidence - at least *some * evidence.
I understand it’s your government, but would you take “there’s no doubt in our minds about their status, so we don’t have to have their status reviewed by a tribunal” as a serious response from a foreign force holding your troops?
Sure. Legal conclusions aren’t really “facts” like whether somebody was wearing a uniform when taken prisoner. But legal conclusions are based on facts, which is why I’m referring to them here.
This is not an accurate description of the GC requirement. As stated above, the GC only requires a tribunal “if doubt arises” as to their status. Until you show me facts that establish there is such doubt, you’re jumping the gun on the tribunal requirement.
That’s correct, although for purposes of this discussion, I’ll be happy to consider any facts that you can demonstrate to create doubt. Please, if you have anything that says the Taliban wore fixed insignia recognizable at a distance, followed the rules and customs of war, and had an organized command structure, I would love to see it.
But there is plenty of evidence that Taliban fighters, at least in general, were basically ad hoc mercenaries in civilian clothes who committed more than their fair share of war crimes and atrocities. My question is where the evidence is that shows these guys did not fit that description. I’ll be happy to consider anything you have on that.
Nope. But the nice thing about being America is that we can sort those sorts of things out via the 82nd Airborne, if necessary.
I refer you again to the GC. The insignia/rules & customs/command struture is merely one of the several headings under which persons are entitled to GC protections.
Firstly, the threshold of ‘doubt’ is set low. It clearly cannot be a subjective inquiry into the mind of the US military. My opinion is that it is likely the mere assertion of entitlement to GC protection is sufficient to raise the doubt needed to obligate a tribunal, before those entitlements can be denied. In other words affording GC protection is the default.
Practically, this is likely to be a stronger case given the time frames involved and the corresponding lack of ‘heat of battle’ imperatives.
Secondly on reference to the GC, there are several headings that base an argument for raising doubt in the case of the Taliban and other captured persons. Many claim not to be combatants of any sort.
Considering these factors: The several bases of possible entitlements; the low threshold needed to establish doubt; the practical opportunities to properly establish status; and the diverse character of detained persons. I believe the case for GC conventions to apply is very strong. Certainly a blanket denial at G-bay is unlawful.
From the GC
Plenty of basis for doubt under these headings. None of those requirements for a well-pressed uniform and lint-free banner under headings 1, 3, 4.
(1) is inapplicable because the Taliban were not a “Party” to the Convention.
(3) requires that they be “regular armed forces.” That requires such features as uniforms, command structures, and following the rules and customs of law (as per subsection 2). The Taliban were not exactly known for those things, so no luck here either.
(4) requires an identity card issued by the armed forces, such as the one I had when I was a kid. I have never heard of any such ID cards with the Taliban. (The notion seems somewhat laughable, given that these guys were basically a rabble of illiterate tribesmen from the sticks.) Anyway, ain’t no doubt in this subsection either.
Keep trying though.
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Doesn’t require that the Taliban be a party to the convention, merely Party to the conflict. In any case, Afghanistan is Party to the GC.
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Merely Minty Green’s unsupported intepretation. The better view is that Afghanistan/The Taliban can constitute their own regular armed forces however they wish. One may disagree, but with nothing like sufficient force to dispense with the “doubt” under consideration.
Further, contrary to Minty Green’s assertion, the conditions applying in (2) requiring uniforms etc are omitted in (3) clearly indicating they do not apply. Note also that GC protections extend to “Militias & Volunteer Corps” in (1) adding further weight to the view that uniforms etc are not an important consideration in the Convention.
- Again merely Minty Green’s supposition. It may seem laughable to MG, but that “seems” plainly allows room for doubt.
Also it is the White House position that GC protections do apply to Taliban, although not Al Quaeda, a position I agree with
Sadly however, the interrogation of Taliban at G-Bay is contrary to that Convention, and merits war crimes prosecution.
Kindly refrain from insolence in future.
“Party” is capitalized, indicating that it is a defined term. In this case, the term indicated is High Contracting Party, which means a country/government that has signed onto the treaty. That’s an inherent part of the treaty, after all–we treat your guys okay, you treat our guys okay. If you don’t agree to treat our guys okay, we don’t have to extend any courtesies to your guys.
Note also that reading “Party” as anything other than “High Contracting Party” renders subsection (3) of Article 4 completely redundant of (1).
Correct. But which “Afghanistan”? The internationally-recognized “Afghanistan” at the time was the Northern Alliance folks, not the Taliban.
My view is better than yours, given that yours eviscerates the plain meaning and obvious implications of the phrase “regular armed forces.” Under your reading, any group of shmucks with a stockpile of arms and a hankerin’ for some killin’ gets to be “regular armed forces,” and that’s just silly.
So therefore, you just ignore the “regular armed forces” requirement altogether? Nope, my reading kicks your reading’s butt.
Uniforms, etc. are not an explicit requirement for (1), it is true. But it won’t exactly be news to anybody in the military that they can expect to be treated very badly indeed if taken prisoner while not wearing their uniforms. I suspect this has been a rule or custom of warfare for a very long time, and I don’t particularly see anything in the GC that alters it.
You got suckered by the White House’s weasel words, I’m afraid. Although Ari Fleischer says “the President determined that the Taliban members are covered under the treaty because Afghanistan is a party to the Convention,” the sentences immediately following clearly state that they are not POWs within the scope of the GC:
Fat fuckin’ chance.
You’ve lost this one wholesale Minty Green. No good swearing at me while you’re pinned on the mat.
I’ll let you go now.
After all the thrashing around in this thread about definitions, treaties, etc. it would appear that the assessment of the decisions given in the OP is pretty close, based on the analysis by the legal beagles on The News Hour and other places.
Experts like Douglas Kmeic of Pepperdine U. stress that the presidential power was upheld while others such as the Dean of Yale School of Law emphasize that the presidential power is subject to judicial review for due process and other considerations.
The most extreme arguments of the administration such as the president having inherent power in war based on his consitutional Commander in Chief role appear not to be valid. I.e. the president is not the sole determiner of who gets jailed and the definition of why the jailing is OK. It is subject to judicial review and that’s a plus.
Furthermore, most of the TV legal experts that I heard strassed that the ruling wasn’t based on the Commander in Chief powers, but on Congressional action which I would susupect is itself subject to judicial review if somebody brings and action to force it.
As a plain old US citizen layman in the law I have not serious problems with the decision. Now we just need to see if the administration follows it or whether it pulls and Andrew Jackson.
“Declare victory and go home.”
What an appetite for pain.
MG’s is a losing position for a number of reasons.
The main reason is that he has an emotional investment in the outcome. If the GC protections are established, it is likely friends and relatives of him, people he esteems, have acted in contravention and are properly described as war criminals.
Conversely, I have no such investment in the outcome, chips fall where they may. So, while staying within the rules of this forum MB can hurt but cannot hurt me.
To deal with the subordinate issue of the rational content of the argument: Recall that the threshold issue is establishing doubt. MG’s position is of academic interest and might be considered arguable. No-one however is plausibly arguing his position is established to the exclusion of “any doubt”.
It is like in a criminal trial. MG faces the hurdle of proof beyond reasonable doubt. In fact a higher hurdle in this case, as the test is “any doubt.”
Conversely, those opposing MG’s position need merely establish doubt. An effort that doesn’t raise sweat.
As “any doubt” is established, the Guantanamo detainees are entitled to their tribunals to determine status.