And of course until such tribunals are afforded all GC protections.
I think we’re definitely heading into the Smartass Steel Cage Death Match Zone here. Not that I approve. This popcorn is a coincidence.
You know, guys, I’d really appreciate it if you’d both cool it.
Given that posts of the “pulling up a lawn chair/I brought popcorn” genre aren’t allowed in the BBQ Pit, is it really necessary that we waste valuable space on the front page with another sticky saying we don’t want them in Great Debates either?
Human Rights Watch’s position on the “doubt” and “recognised government” issues. They note that
Last time I checked, Human Rights Watch was just a bunch of guys with no legal authority, correct? And so why am I supposed to defer to their interpretation when it renders the phrase “regular armed forces” completely meaningless? Because you prefer the outcome to the one indicated by the text of the treaty?
Save your armchair pscyhology for somebody you actually know. I have no friends or family in the armed forces, and certainly none who are in any way involved with any of the issues in this thread. And truth be told, I’d be very happy if the GC was rewritten to more sensibly deal with modern warfare–it is a relic of the standard army-to-army clashes of the first half of the 20th Century, not terribly well suited to the guerilla conflicts of the 21st Century. That does not, however, mean that we must ignore the text of the document as it stands right now and as it governs some situations and not others.
You’re reversing the burden of proof. It is the detained person, or his supporters, who have to raise doubt about his status in order to be entitled to a tribunal. The detaining power does not have to stick everyone in front of such a tribunal and prove their status beyond a reasonable doubt. Again, I invite you or anyone else to come forward with facts that show the Taliban were “regular armed forces.” If you can do that, then I will happily concede that they are entitled to tribunal determination of their status.
Getting back to the original topic, there is a reasonably interesting column this morning at Findlaw, arguing in part that what produced this result was the passage of time between 9/11 and today. The emergency nature of the crisis in the fall of 2001 has dissipated, the writer argues, and with it has gone the discretion of the executive in deciding how to deal with the crisis. It’s sort of a legal realism argument, but there is, I suspect, something to it.
No, because I think it doesn’t make sense the way you interpret it. Here’s why:
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If there’s doubt that someone qualifies or if they clearly do, they have to be afforded the protecions of the Conventions (we agree on this).
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If there is doubt and a tribunal is held and someone is found not to qualify, then they no longer get the protections (this too).
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You say that there is doubt only when someone can show some evidence that they are a member of a protected group (a difficult thing to do from Camp X Ray).
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I say that there is doubt if there is an argument that they may be a member of a protected group.
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If you are right, why would the Conventions state that if there is doubt the detainee should have all the rights of a POW until their status is determined? Surely they would not have the rights until they were found to member of a protected group if the onus was on them to show they are members of a protected group. Your interpretation makes (1) incoherent. (1) is clearly intended to mean that everyone gets the protections until they are shown not to deserve them and that the way they get to be found not to deserve them is by a finding by a competent tribunal.
It’s a shame this thread has got so thoroughly hijacked into this question. The original topic is interesting and perhaps we can get back to it soon.
You are not in Camp X Ray. I am asking you, who asserts that doubt exists, to demonstrate it–not for the sake of actually obtaining anyone a tribunal, but for the sake of showing in this argument that a tribunal is actually required under the circumstances as we understand them.
Anyone can make an argument. I can argue that the moon is made of cheese. That doesn’t entitle the moon to a tribunal resolution of its status.
The key to that requirement is that it only applies “[s]hould any doubt arise” about their status. Once again, I ask you to demonstrate facts capable of creating doubt as to the Taliban’s status as “regular armed forces.”
You’re jumping ahead of the game. The initial determination of whether the prisoner is subject to POW status is, of necessity, made by the detaining power. It is only after that determination is made–and made against POW status, of course–that the “should any doubt arise” provision kicks in. Otherwise, you’d automatically have to have a tribunal determination of the status of every prisoner not automatically granted POW status, and that is clearly not a requirement of the Convention.
Once again, you are ignoring the plain text of the document, which states that Article 4(A)(1) applies to “armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.” It is absurd to suggest that “everyone” qualifies as a POW under that provision. If that were the case, there would once again be no need for the multiple remaining categories described in Article 4.
Now, that doesn’t mean that it would not be desirable to treat everyone like a POW. But that is a different question from whether the GC requires the signatories to treat everyone as a POW, since it clearly does not.
** minty green **, I would ask that you check out a thread that I started here:
…my citations show that many of the detainees were not captured on the battlefields of Afghanistan, but were business men in Ghana, Taxi Drivers, Bakers, Taliban prisoners, Farmers, playing with thier kids in Pakistan, on the “do not send list” but due to bureaucratic bungling ended up at Guantanamo. and released prisoners from Bosnia. In fact, its sad to say, that there is very little evidence that any of the prisoners at Guantanamo are either Taliban or Al Quada, and that they were captured on the battlefield. For those prisoners who obviously were not captured on the battlefield-how would you suggest they be treated-and what status should they recieve?
My comments have been directed towards the status of captured Taliban soldiers, not innocent taxi drivers and other non-combatants. I certainly do not claim that such persons should be taken prisoner and transported halfway across the globe without criminal charge or trial.
…how many prisoners at Guantanamo Bay are confirmed Taliban fighters?
We both know the answer to that question: We don’t know. What is known, or at least widely acknowledged by every party from CNN to Human Rights Watch, is that there are a significant number of Taliban fighters interned at Guantanamo Bay. Surely you don’t deny that?
…from “one of your party’s” Human Rights Watch…
http://hrw.org/english/docs/2004/01/09/usdom6917.htm
…whats to deny? President Bush states that “the only thing we know for certain is that these are bad people and we look forward to working with the Blair government to deal with the issue”. “Let me just say, these were illegal combatants. They were picked up off the battlefield aiding and abetting the Taliban”-which, considering my citations in the previous thread, is a either a complete lie, or the President has been fed poor information-again.
Of course there are Taliban fighters at Guantanamo-however your assertion that the number is significant cannot be proved. Look at the prison situation in Iraq-where several human rights groups estimated that 60-90% of those being held were innocent-and just for a moment consider the possibility that maybe the prisoner round-up was not as effective as it should have been. Look at my citations-does the pattern of detentions not follow the same basic pattern as those in Iraq? People gathered up in random sweeps? Coerced confessions? People turned in for bounty payments? People sent to Bagram from Ghana, only so they can be forwarded to Guantanamo? There are a hell of a lot more questions than answers-don’t you agree?
Just so. The fact that a “significant number” of the detainees are detained for good reason buggers the question. (And oh! what a multitude of prevarication is hidden within that word, “significant”. One, five, a hundred? “Significant” appears to be a word choice prized for what it hides, rather than what if reveals…)
We face an enemy that does not share our civility and concern for the rule of law, and the equitable and just application of the law. If we surrender our own civility and concern for justice, then we are no better than our enemies, we lend a valildity and credibility to them they do not, by any stretch, deserve.
We have released some innocents, which is all to the good, but it cannot be counted a positive since they were, in fact, innocent. And keeping a child in a cage for fear of his dread enmity? Whom are we kidding, here? Is there any chance, any at all, that we have not made bitter enemies of each of that child’s relations? Can we honestly say they don’t have good and valid reason for that enmity?
Not easy wearing the “white hat”. It is our purpose, is it not, to make it easier?
Banquet Bear: As I clearly stated a couple posts back, “My comments have been directed towards the status of captured Taliban soldiers, not innocent taxi drivers and other non-combatants.” I am not arguing about the legal status of detainees who are not captured Taliban soldiers. Again, for clarity, “I certainly do not claim that such persons should be taken prisoner and transported halfway across the globe without criminal charge or trial.”
Is there any part of that which is unclear? And if not, why do you insist on responding to my comments about the Taliban soldiers with your own argument that not everyone is a Taliban soldier?
elucidator: The discussion has been about what the Geneva Convention requires, not what the best thing to do would be. You profoundly misinterpret my remarks if you understand me to be making any kind of endorsement of Rumsfeld/Cheney/Bush’s policy decisions with respect to these issues.
They would not be covered by any protection, and most armies would quite certainly execute them summarily.
“Guerrilla war” doesn’t mean not wearing uniforms, though.
Duly noted. My remarks were intended in a general sense, and in no wise reflects any disagreement. I took your exposition as stating the facts of the law, and not any judgement as to the justice, or lack thereof. You may take it as given that I assume you know your shit, and that I presume no standing to correct.
If I ever, at any time, suggest that you are in league with the aforementioned unworthies, I give you leave to screw my wife, shoot my dog, and steal my pickup. Or whichever arrangement you find more agreeable.
(Well, he’s from Dallas. You never know with those guys…)
Your pickup’s been rusted away by too many winters out on the tundra, your wife’s as crotchety as you are, and I’ve already got a dog. But I might help see if you’ve got anything worth drinking in the liquor cabinet.