1) How many times has the United States been in a war against a nation that actually pretended to abide by the Geneva Conventions? I want to say that only Nazi Germany actually gave a smidgen of effort in this direction, but I don’t know about North Korea.
2) How would Amnesty International feel if the United States treated the Guantanamo detainees in the manner proscribed by United States and international law, and summarily executed them as illegal combatants?
“I actually had it in my editor, but I deleted it because my replies are too long as it is.”
Um, but by not including it your reply was way off the mark. The paragraph you left out (and, really, that’s the weakest excuse I’ve ever heard for shoddy research or poorly executed spin) clearly asserts that every combatant on the field has rights, the most supreme rights being humane treatment and due process. We’ve held detainees for almost three years without trial or charges, essentially in a legal limbo. Article 5 of the fourth Convention clearly asserts that, while states have the right to ensure their security, they must grant detainees “their full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power.” And remember, these are saboteurs and
irregular combatants being referred to. Everyone has to be given protected status and due process at the “earliest date” consistent with security.
Now you could argue that granting these people their due process rights puts our security at risk. Fine. But I have to ask you, if guaranteeing fair trials for prisoners places our nation at risk there’s a bigger problem in our detention facilities than I thought.
At any rate, during that time that the state is weighing its security needs, the detainees must be treated humanely. They may not be POWs but they still have basic rights, indeed the most basic rights as noted above in the Conventions themselves. Fighting outside a regular army is a crime but it doesn’t place you outside the law. You must betreated humanely, charged with a crime, fairly tried and convicted according to the penal laws of the occupied territory.
Jay’s original post suggests that America has the right to summarily execute detainees but hasn’t exercised that right. Accoridngly, the detainess ought to just feel damn lucky and shut their yaps, along with AI and other human rights groups. Again, he couldn’t be more wrong.
I want to reiterate that nowhere do the words “unlawful combatant” or “illegal combatant” appear in the Conventions. These are terms cooked up by those who would skirt the intention of the Conventions, namely, that no one on the field of battle, be they regular army or armed civilian, falls outside the protection of the law. On this count, I believe Rumsfeld and Alberto Gonzalez have some explaining to do and I would like them to do it under oath to an independent investigating committee.
Yes, the US is investigating cases of abuse, handing down charges including criminal homicide in some cases, and giving soldiers their due process. But why do you think investigations should stop there? We need a full and thorough independent investigation to clean house, if necessary, to show the world that we really don’t tolerate torture and abuse and that we beleive in abide by international law.
No doubt a state is legally allowed to execute prisoners but they must give those prisoners their due process rights. Summary executions are not allowed, at all. They simply aren’t. Agains, fighting outside a regular army is a crime but it doesn’t place you outside the law.
Let me cite that paragraph again for you:
“In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.”
RE: Um, but by not including it your reply was way off the mark.
No it isn’t. My reply pointed to the fact that the special status is not due them and to show that the ICRC’s statement that if you’re not a POW you must be a citizen (or, more precisely, a protected person). And I can blow both ideas out of the water.
RE: Humane treatment and due process
And if you reread what I wrote you will see that I have supported humane treatment. By the way, your due process argument is better supported by the GC on POWs. Just remember that the due process they are entitled to is not the same due process as a defendent in an American court.
RE: “I want to reiterate that nowhere do the words “unlawful combatant” or “illegal combatant” appear in the Conventions.
True, but it is also true that their status is unclear. Assuming that they are active participants, they are not POWs and they don’t get the protected person status.
RE: “These are terms cooked up by those who would skirt the intention of the Conventions, namely, that no one on the field of battle, be they regular army or armed civilian, falls outside the protection of the law.”
No, it comes from the QUIRIN decision by the US Supreme Court: “…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”
As far as I know that is still valid case law.
Besides, the term “unlawful combatant” is accurate.
On the topic of breaking the law. People above used the speeding example and said when an officer turns on his siren he can exceed the speed limit. He does. They also pursue without lights or sirens at times.
They also shoot and kill suspects. This is not legal. Police are not legally allowed to shoot you. They face a legal decision in which case they get a justifiable homicide. I don’t think that is the same as making it legal to kill.