Family Forum / Parenting / Adoption / January 2005

Steve White wrote:

I think you should read "Is the President Bound by the Geneva
Convention" by Derek Jinks and David Sloss. It will clear up a lot of
your misconceptions.

You're doing nothing but proving my point.

This is a very confusing sentence, and since I haven't ignored the law,
but interpreted it differently than you, as indeed just about every
other nation has, then I don't see where my idealism comes into it.

They are entitled to trials according to the very Bush policy that
detains them. One of the major frustrations within the Bush regime is
the slow pace of the process they've put in place, which dictates a
trial before a military commission. Maybe you should take a look at that
before spouting off about what entitlements the detainees have or don't
have. We don't even have to talk about international law here.

Indeed it is, it's what got us into this mess in the first place. The
Bush regime, under the coaxing of Cheney and Rumsfeld, put together a
team with no interagency oversight to put together a radical new way to
deal with detainees in its war on terror back in 2001, ostensibly to
guarantee quick and demonstrable results. Three years later, still no
military commissions meting out rough justice. Checks and balances are
the best guarantee that one party's idealism doesn't run roughshod over
anothers. The Bush detention policy ignored checks and balances at its
outset, and is now paying the price.

This is my favorite quote about the detainees:

"It became obvious to us as we reviewed the evidence that, in many
cases, we had simply
gotten the slowest guys on the battlefield," said Lt. Col. Thomas S.
Berg, a member of the
original military legal team set up to work on the prosecutions. "We
literally found guys
who had been shot in the butt."

Interestingly enough, the detainees who have been returned and who have
turned up in hotspots again, were released to nations that disagree with
our interpretation of international law. We tried to give Britain back
it's citizens under an agreement that they treat them the same way we
do, that is detain them as "illegal combatants", but they refused. We
released some detainees to Russia under a guarantee that they would
inter them under the Bush policy, but Russia simply released them. It's
all very well to assert an interpretation of international law, but it's
useless if nobody else agrees or honors it. It becomes an embarrasment.

It's exactly what we said and its exactly what we did.

Ron

Here's what Jinks and Sloss say about it, quoted from the Cornell Law
Review, Vol 90:97.

Scholars have also published numerous articles concerning the
Presidents authority to violate customary international law (CIL).
Treaties raise different constitutional issues, however, because the
Supremacy Clause expressly states that treaties, like statutes, are the
supreme Law of the Land.

So there you go. You'll note also that since Congress ratifies treaties,
the president is considered to have little or no legitimate power to
violate them.

Ron

I was going to stay out of this as there is no easy answer. There are valid
points on both sides of this argument. What I might ask of you is to
consider how these "fighters" are percieved by the men and women who are
dodging bullets and shrapnel often from disguised improvised explosive
devices. How do our young soldiers deal with young people not much different
from themselves who are willing to die to kill them only because they feel
they are fighting for thier country, thier families and thier
culture/religion? This kind of tribal based guerrilla warfare has been going
in in this part of the word since Biblical times. The Geneva Convention was
written pretty much around the idea of organized armies facing off against
each other under rules of engagement. I am not a legal scholar so I have no
credentials to address the legalities of it all. I believe in WWI and WWII
partisans and guerillas were sinmply executed whereas uniformed combatants
were treated as POWs.  At some level what is bothering me, I suspect, is the
fact that people are sitting in the comfort of thier homes behind thier Macs
and PCs passing judgement on the action of others, more than a few of whom
have seen friends killed and mangled, based on precious little facts, much
of which I would be suspect of. Debate is good and freedom of speech is
guartanteed, at least here. Don't let the rants of a tired old curmugeon
disuade you, just try to walk in the shoes of the folks who are there if you
can. Good night.

Raymond

The "test" is supposed to be administered by a tribunal, not by
presidential fiat. See Article 5.

Article 5

The present Convention shall apply to the persons referred to in Article
4 from the time they fall into the power of the enemy and until their
final release and repatriation.

"Should any doubt arise as to whether persons, having committed a
belligerent act and having fallen into    the hands of the enemy, belong
to any of the categories enumerated in Article 4, such persons shall
enjoy  the protection of the present Convention until such time as their
status has been determined by a  competent tribunal."

At any rate, here's what Jacque bovay, the head of the ICRC said. The
ICRC are probably the least partisan observers of this whole mess, with
a working knowledge of the Conventions and applicable international
human rights law than you, me, and Gozalez put together:

Why The US In Guantanamo is Subject To The Geneva Conventions

Date: 29-Dec-2004

By Jean-Jacques Bovay -

Mr Lapkin's article, "Why should Guantanamo Bay inmates be protected by
the Geneva Convention?", published in On Line Opinion recently,
perpetuates several misconceptions about International Humanitarian Law
(IHL) - also called the law of armed conflict - and the specific role
and mandate of the International Committee of the Red Cross (ICRC).

Regarding the role and working methods of the ICRC, Mr Lapkin cites a
recent article published in the New York Times as evidence of the
organisation's ability to "play hardball politics with the best of them
when it sees fit". Firstly, in line with its fundamental principles of
humanity, impartiality, neutrality and independence, the ICRC never
"sees fit" to enter the political playing field.

Secondly, the ICRC did not leak any information to the New York Times
about its visits to detainees held at Guantanamo Bay. The ICRC, in
accordance with its strict policy of confidentiality, only makes
representations and provides details of its findings on the treatment
and condition of detainees to the authorities directly concerned. It is
this approach that enables the ICRC to have regular and repeated access
to detainees in over 2,000 places of detention in some 80 countries.

Individuals suspected of violations of IHL are not placed "beyond the
pale of international law", as Mr Lapkin stated. While phrases such as
"captured on the battlefield", "serial transgressors" and "illegal
combatants" presuppose guilt, in reality the Geneva Conventions enable
those suspected of violations to present their claims of innocence and
entitlement to protection. Indeed, the protection of persons not, or no
longer, taking direct part in hostilities is the fundamental principle
of International Humanitarian Law. Although it is true that parties to
the Geneva Conventions are under no obligation to apply their terms to
non-parties who do not abide by the law, the "parties" referred to in
the Conventions are States. The United States of America and Afghanistan
are both States parties to the Geneva Conventions, and therefore the
Conventions apply to persons detained in the armed conflict between the
two.

Contrary to the assertion, "Al-Qaeda fights outside the Geneva
Conventions and so is not protected by them", a violation by one party
to a conflict is not sufficient to relieve the other side of its
obligations. If the existence of violations provided a permissible basis
for throwing out the rule book, there would be no use for rules that,
while often honoured in the breach, have also served humanity well in
preventing excesses. Reciprocal respect for the rules is an ideal, but
violations by one side do not excuse violations by the other side.

Responding to violations with violations simply contributes to a
downward spiral into mayhem for combatants and civilians alike.
Therefore, while those who violate the law remain entitled to its
protection, they are also subject to its sanction.

A detainee who fails to meet the criteria for POW status does not
thereby forfeit all rights under the III Geneva Convention. In fact,
such persons may still be covered by the rules applicable to civilians
under the IV Convention. And, despite being covered by the Conventions,
these individuals can still be interrogated, detained without charge for
the duration of the conflict or (in the case of civilians, for as long
as they pose a security risk), prosecuted for unlawful participation in
hostilities as well as for war crimes, and, if convicted, sentenced to
terms provided by law. The existing legal framework obviates any need to
toy irresponsibly with the notion that the end, for example intelligence
gathering, justifies any means. The prohibition on torture permits no
derogation.

The ICRC regrets misinformation regarding its specific role and the body
of law governing situations of armed conflict for one simple reason: it
could impact adversely on the victims of armed conflict and our ability
to alleviate their plight.

Jean-Jacques Bovay is Head of the International Committee of the Red
Cross (ICRC) Regional Delegation for the Pacific, based in Suva, Fiji.