Geneva Convention - time for a rewrite?

#1
The Geneva Convention will figure large when/if the Cuba detainees come to trial.
The nature of warfare has changed since the main Convention was drawn up. Freedom fighters or terrorists - however one may view them - swim in the waters of the civil population who may or may not support their ideals. This melding leads to problems for the security forces because the infantry man must make complex decision in an instant knowing fully that his actions will be slowly and exhaustively diseccted at leisure in a court of law. The only instruction available to the basic soldier is some form of yellow card which is totally inadequate given the complexity of homicide etc. law. The whole basis for the latest Convention has been undermined. The introduction of more efficient killing machinery means that such judical entrail-examination will increase. Tody the infantryman is most likely to be put on trial - when will someone examine the bomber pilot whose smart bomb goes stupid or where the target was wrongly identified from intelligence?
I have no solution but post this as a discussion point along with some reports that might add to the discussion
Geneva convention

By Andrew Apostolou, Dr. Frederic Smoler

March 2002

In all the legal punditry and high moral posturing that has passed for analysis since Taliban and al-Qaida detainees arrived at Camp X-Ray in Guantánamo Bay, both the purpose and origins of the 1949 Geneva Convention have been too often forgotten.
The convention was not drawn up by contemporary human rights activists. Rather the Geneva Convention relative to the Treatment of Prisoners of War was adopted in 1949, after German and Japanese atrocities during the Second World War had shown up the dismal inadequacies of the Hague Convention of 1907. The Germans had regarded entire civilian groups as enemies, to be either exterminated or forcibly and violently resettled. Both the Germans and Japanese had shot legitimate resistance members (without the barest pretence of legal process), executed commandos, and used prisoners for medical experiments. Article 4 of the 1949 Geneva Convention very deliberately extended the protections traditionally restricted to regular troops to various categories of irregulars, defining such militias with some elasticity.
These important protections, for soldiers, resistance fighters and civilians alike are now in serious jeopardy. The threat to the integrity of the Geneva Convention comes not from the US government but from an ill-conceived and misguided campaign by human rights groups and European governments to grant prisoner-of-war (POW) status to all the Camp X-Ray detainees. The demand that the detainees be termed POWs is being made without any serious consideration as to whether they qualify for such protected status under the Geneva Convention and certainly without the slightest examination of the consequences of them receiving such a status
200 Pledge Willingness to Carry Out Suicide Attacks Against Americans, Israelis (12/03/2004)
Nasser Karimi
CBC News (Canada)
Some 200 masked young men and women gathered at a Tehran cemetery Thursday to pledge their willingness to carry out suicide bomb attacks against Americans in Iraq and Israelis.
Geneva Conventions and POWs (11/16/2004)
David B. Rivkin Jr. and Lee A. Casey
The Washington Times
Not quite one week after the American people overwhelmingly endorsed George W. Bush's conduct of the war on terror at the ballot box, a federal district judge in Washington D.C., challenged the president's policies by ruling that Salim Ahmed Hamdan is entitled to rights under the Geneva Conventions.
Judicial Overreach

By Ruth Wedgwood

The Wall Street Journal
November 16, 2004

The basic principles of the law of war are immutable. Civilians should be protected in battle and cannot be deliberately attacked. Postwar occupation should shelter ongoing civilian life. And, of course, captured enemy personnel must be treated humanely, and given a fair trial on any charge of war crimes.
But major conflicts also pose new problems. Western democracies have had to update war's regulatory rules to fit new circumstances, by interpretation, distinction, or amendment. In World War II, the trial procedures used at Nuremberg were in tension with Arts. 63 and 64 of the 1929 Geneva Convention. The Allies were put to argue that an unconditional surrender was different from wartime capture, and so the Nazi leaders would not be covered by the 1929 pact. The postwar rebuilding of Germany and Japan, with new democratic institutions, was arguably in tension with the 1907 Hague Convention. But the collapse of the Axis, said the Allies, created a legal condition of debellatio -- or total defeat -- to which Hague occupation law should not apply.
The interpretive problem for law-abiding democracies is how to hold true to the core principles that animate a treaty regime while working within a text that may not anticipate new problems. It would not surprise historians to discover that the treaty rules crafted for state-to-state wars do not always easily fit an unconventional conflict against a nonstate actor such as al Qaeda.
 

wotan

Old-Salt
#2
A very interesting post, and a subject well worth debate. I suppose that the simplest and almost flippant answer comes from Aeschylus - "During a war, laws are silent". However, as I have stated on other boards, even the Geneva Conventions as they exist now, DO NOT provide protection to the illegal combatants at Guantanamo Bay. They are not POWs, and they do not deserve any protection afforded by the Geneva Convention For The Amelioration Of The Condition Of Prisoners Of War.

As well, it should be noted that while the US is endeavouring to release prisoners quickly, in at least one case, a released prisoner was later killed in a firefight with US troops in Iraq. The former prisoner was not Iraqi and had no business fighting anyone in Iraq.

So, unless it can be shown that these individuals are either Afghans or Iraqi, then as far as I am concerned, they and any group purporting to represent them, need not look to the Geneva Conventions for protection.
 
#3
Without entering the discussion on whether the detainees ara or are not POWs (my legal understanding of the Convention is FAR too limited to contribute on this), it seems to me that, if they are they then they should be afforded protection but if they are not then they are still entitled to the same protection as any other foreign national criminal.

This does NOT include indefinite detention, without charge, proper legal representation or trial in any western civilised country that I'm aware of. It DOES include those things under the regimes we claim to despise.

I find it worrying that the government of any country, for whatever reason, takes upon itself effectively undefined and uncontrolled powers to deal with "enemies of the state" - a group which it can define according to it's current needs.

Whilst I accept that these rules are made at a particular time, to address a particular threat, once established a prescident is set. Assuming that such powers will always be used responsibly and for the common good places a hell of a lot of faith in our FUTURE governments.

By updating the Convention we could at least define exactly what protection should be afforded, either directly by including Convention rights for "stateless" combatants, or indirectly by affirming their basic criminal rights under national laws.
 
#4
Several points here, some of which have already been discussed on this board.

I dont agree with the quote in the first post that "The demand that the detainees be termed POWs is being made without any serious consideration as to whether they qualify for such protected status under the Geneva Convention and certainly without the slightest examination of the consequences of them receiving such a status."

Whether right or wrong, the case for POW status has sometimes been put more rationally than that. A fundamental difficulty for the US is that at the time they set up the Gitmo arrangements, it was understandably inconvenient to accept that conflict was continuing in either Afghanistan or Iraq. If prisoners do have POW status, usefully there is no need to prove "guilt", merely their status as presumed combatants (although they can still be prosecuted if appropriate), and they can be held as long as there is a risk of them returning to the conflict. Had there been a postwar insurgency in Germany (and to read some statements from the USA you could think there was), the post-WW2 allies would have been justified holding German POW for as long as necessary to avoid the risk of them joining the conflict. Prisoners classified as more dangerous (Nazi party, special forces) were in fact detained for longer than the mainstream.

The doubtful status of 'foreign fighters' is IMO more to do with whether they were involved with actual or planned terrorism, or were participants in a force which itself does not qualify for protection under the Conventions; NOT simply whether they are 'foreign', thus having 'no business' in a conflict. No-one now suggests that for example British volunteers fighting for the constitutional government in the Spanish Civil War were not legitimate combatants. Anyone can think of other examples.

Would be interesting to hear actual detail on that ex-Gitmo detainee who turned up in Iraq. This detainee is continually trotted out in the debate, sometimes in Afghanistan and sometimes in Iraq. No doubt it has happened, apparently more than once, but it would be interesting to have the facts verified.
http://msnbc.msn.com/id/4825317/

The possibility of ex-detainees returning to the conflict is certainly relevant (see my post-WW2 example), but is not an absolute case either for retaining all prisoners indefinitely or for depriving them of POW status.

Am not making a case either for the tree-huggers or against the United States, simply suggesting that there are genuine questions to be asked. IMO, reasonable answers to those questions are there to be found in US law and their adherence to international law, even as it exists now.
 
#5
:? I have a rather nasty notion about where all this could lead, ultimately.
 

wotan

Old-Salt
#7
The Geneva Convention Relative To The Treatment Of Prisoners Of War can be found at the International Committee Of The Red Cross at www.icrc.org. Article 4 is the one that applies and determines the status of a combatant. It is somewhat long, so I haven't posted it here. However, if a person is not a citizen of a party to the conflict (Afghans in Afghanistan, Iraqis in Iraq) or doesn't report to a superior responsible for his conduct or does not use a recognized symbol, then they are not PWs. So, if they aren't PWs, what are they? Simple. Spies, saboteurs and terrorists. Such people are given no status under the Conventions and could conceivably simply be summarily executed without trial. That the US has detained them, removed them from the conflict and relocated them......too bad. Shouldn't have been in a foreign country conducting hostile operations. If they are Syrian, American, British, Jordanian or whatever, I have no problem with the US doing with them what they will.
 
#8
wotan said:
Shouldn't have been in a foreign country conducting hostile operations. If they are Syrian, American, British, Jordanian or whatever, I have no problem with the US doing with them what they will.
Well, I do. You can't claim to be ridding the world of oppression and setting a democratic example while you hold people without charge/legal representation/habeus corpus and all that other good stuff.

If they are to be tried, then security clear a judge and jury and get on with it.

msr
 
#9
wotan said:
The Geneva Convention Relative To The Treatment Of Prisoners Of War can be found at the International Committee Of The Red Cross at www.icrc.org. Article 4 is the one that applies and determines the status of a combatant. It is somewhat long, so I haven't posted it here. However, if a person is not a citizen of a party to the conflict (Afghans in Afghanistan, Iraqis in Iraq) or doesn't report to a superior responsible for his conduct or does not use a recognized symbol, then they are not PWs. So, if they aren't PWs, what are they? Simple. Spies, saboteurs and terrorists. Such people are given no status under the Conventions and could conceivably simply be summarily executed without trial. That the US has detained them, removed them from the conflict and relocated them......too bad. Shouldn't have been in a foreign country conducting hostile operations. If they are Syrian, American, British, Jordanian or whatever, I have no problem with the US doing with them what they will.
Thanks, Wotan, maybe that raises more questions?

Until the detaining power can prove they were knowingly preparing for such operations outside the country, how can foreigners who turned up in one way or another in Afghanistan 'qualify' as spies, saboteurs and terrorists? In order to be potential spies etc, would they not be reporting to a recognised superior? Are there not photographs in the public domain showing allied special forces without "fixed distinctive signs recognisable at a distance"? (Echoes here of another recent thread). Did the enemy generally operate in Afghanistan in a manner designed to conceal their status as a fighting force?

1949 Geneva Convention relative to the Treatment of Prisoners of War
http://www.unhchr.ch/html/menu3/b/91.htm

1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War
http://www.unhchr.ch/html/menu3/b/92.htm

You based your case on Article 4 of the "PW" convention. Article 5, same Convention:
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.
(my emphasis)
 
#10
hackle said:
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.
I argue that that is exactly what is happening. That is these are combatants, that on the surface do not appear to fall in the POW category. They are being detaineed, as allowed by the GC, and their status is being determined. As proof to this, we have seen a number of Gitmo detainees, released from US custody and repatriated to their home countries.

From all accounts the detainees are being treated humanely, there have been no executions or trials and since there is still fighting in Afganistan and Iraq continued detention, regardless of status, is fully in accord with the GC. Atleast that is how I read it
 
#11
ctauch said:
From all accounts the detainees are being treated humanely, there have been no executions or trials and since there is still fighting in Afganistan and Iraq continued detention, regardless of status, is fully in accord with the GC. Atleast that is how I read it
Shame the rest of the world doesn't.

msr
 
#12
msr said:
wotan said:
Shouldn't have been in a foreign country conducting hostile operations. If they are Syrian, American, British, Jordanian or whatever, I have no problem with the US doing with them what they will.
Well, I do. You can't claim to be ridding the world of oppression and setting a democratic example while you hold people without charge/legal representation/habeus corpus and all that other good stuff.

If they are to be tried, then security clear a judge and jury and get on with it.

msr

My emboldening. Problem is that the evidence is most likely extremely tenous having been gained from interrogation. The bleeding heart defence will start off that no warning of rights (Miranda or =) was given at time of arrest, through venue of proceedings, to intimidation invalidating any statement by their client or of some other person implicating their client.
We've alrady seen some of it start. The lawyer who was security cleared to visit the brits was barred from answering any questions about his clients - even as to whom he had seen. He's since reigned. The defendents may go so far as to admit they were at a training camp but claim they went there out of an interest in Muslim teachings - certainly not for war. Difficult to prove otherwise than by implication - easily destroyed by even most half-baked defence guy.[/b]
 
#13
Hackle,

Good points and valid questions. The crux of it here though, is that to qualify as a PW, a person must meet all of the conditions listed at para 2 of Article 4 in the Convention, not just one or two of them. So, how do you determine if a person is a PW, say in Afghanistan. Start with the basics. Do they have documents showing them as Afghani or another nationality? Probably not, but possible. Do they speak the indigenous language? Do confirmed locals identify them as foreigners? Do they identify themselves as foreigners? If they are foreigners, were they captured under arms? If so, they are illegal combatants and enjoy no status under the Conventions.

Unfortunately, the wider public perception is that if you capture someone that is fighting against you, then they are automatically PWs. That's just not the case. If these poor souls at Guantanamo don't want to be there or be held indefinitely there is a simple solution. They just have to hop into a time machine, go back and not make the stupid decision to go to a foreign country to fight Americans. The argument that they should be treated as PWs due to their being doubt to their status is a false one: neither the governments of Afghanistan or Iraq have claimed them. You see, the US has no doubt as to their status, they are illegal combatants and not PWs. Unless the Afghan or Iraqi governments come forward and claim them, the subject of their status has been resolved.

However, should, say Syria, insist that a particular person is Syrian then they have again resolved their status. Foreigners of countries not party to the conflict, captured under arms are illegal combatants and not PWs. Unless, of course, Syria or whatever country would like to declare themselves parties to the conflict, however, I don't see that as likely.

As for not treating them in accordance with established Democratic conditions, too bad. If they wish to enjoy PW status under the Conventions, show themselves as Afghanis or Iraqis. Or, come clean and admit that they are Jordanian, Syrian, Saudi or whatever, and seek the intervention of their respective governments. I don't think they would get much help, but again, too bad. They knowingly involved themselves in a conflict that didn't concern them and now they are reaping the consequences. I am very certain that they are receiving much better treatment than an Allied soldier captured by their compatriots would receive. I don't recall the US sawing off any detainees heads yet.
 
#14
OldRedCap said:
Problem is that the evidence is most likely extremely tenous having been gained from interrogation. The bleeding heart defence will start off that no warning of rights (Miranda or =) was given at time of arrest, through venue of proceedings, to intimidation invalidating any statement by their client or of some other person implicating their client.
ORC,

Then on what grounds are we denying them their liberty?

msr
 
#15
msr said:
Then on what grounds are we denying them their liberty?

msr
On the grounds that they were running round Afganistan, armed, shooting at Allied troops that were sent there at the behest of the UN. In short they were fighting against, what the world saw, as a justified use of force.

They were detained as part of a conflict...that conflict is still on going, not at the previous intensity, but none the less still on going.
 
#16
Like this you mean:

In another March 2004 article, the New York Times reported on three Afghan youths, ages ranging from 12 – 15 that were held captive for more than a year at Guantanamo Bay on suspicion of belonging to the Taliban. The boys, after one year of confinement, were released when intelligence showed there was never a connection to the Taliban. One of the boys, Ismail, was told by the US military that, “You were wrongly detained” (Gall, 2004). The Times also reported more juveniles were being held in Cuba, even after the International Committee of the Red Cross expressed concern that Guantanamo is an inappropriate place to hold juveniles (Gall, 2004).

http://www.dividedbypolitics.com/detainees.htm

If there is evidence, let it be heard in a security cleared court. Otherwise these people need releasing or we are no better that the dictatorships we seek to overthrow.

msr
 
#17
It's a shame with all the intelligent debate going on in this Forum that not one of us can reasonably expect to be treated in accordance with the GC should we become a prisoner of any enemy we'll be up against in the foreseeable future........ :(
 
#18
But I don't think that that is any reason for us not to aspire to and reach the highest standards ourselves...

msr
 
#19
msr said:
Like this you mean:

In another March 2004 article, the New York Times reported on three Afghan youths, ages ranging from 12 – 15 that were held captive for more than a year at Guantanamo Bay on suspicion of belonging to the Taliban. The boys, after one year of confinement, were released when intelligence showed there was never a connection to the Taliban. One of the boys, Ismail, was told by the US military that, “You were wrongly detained” (Gall, 2004). The Times also reported more juveniles were being held in Cuba, even after the International Committee of the Red Cross expressed concern that Guantanamo is an inappropriate place to hold juveniles (Gall, 2004).

http://www.dividedbypolitics.com/detainees.htm

If there is evidence, let it be heard in a security cleared court. Otherwise these people need releasing or we are no better that the dictatorships we seek to overthrow.

msr
msr,
First off the New York Times is a shyte rag that I wouldn't wipe my arrse with.

Second, re-read my original post and argument. They were catured on the battle field, their status was undeterminable at the time. They were detained at Gitmo [in accord with the GC], their status was determined after a year and they were released [per the article].

Looks to me that everything was handled properly and in accord with current law and conventions.

As for the quote by the unamed US Military source...I take that with a grain of salt may or may not have been said [Times is infamous for printing made up stories see Jayson Blair], but even if said doesn't make it fact. That is someone in the US Military could have "un-officially" told the detainee that, but that doesn't mean he was in fact "wrongly detained".

If the age of the detainees (12-15) is meant to illicit some compassion in me...IT DOESN'T. They are fully capable, at that age, of killing.

So what is the point you are trying to make? That kids are being detained at Gitmo that were captured on the field of battle and afforded protections, detained and later released once their status was ascertained....sounds to me like all is working perfectly fine.
 
#20
So 12 months is an acceptable amount of time to hold people while you determine their status?

msr
 

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