Who is a protected person in the Context of the 1949 GCs? (was: Re: Rob offers his apologies.)
fredf...@spamcop.net
Mr Daneliuk seems to have me confused with another
author. Regardless:
OP stated that 'terrorists' are not protected by the Geneva
Conventions. I pointed out that _prisoners_ of a nation
other than their own, are always protected persons, though
that status does not preclude trial and punishment for crimes
comitted prior to their capture, such as fighting in civilian
disguise.
I cited the fourth article of the Fourth protocol of the 1949
Conventions and said that in the quoted text "the convention"
refers to the 1949 Convention in its entirety, not to any specific
protocol thereof. Mr Daneliuk disagreed as indicated below.
Upon review, I am less than certain as to whether the terms
"convention" and "protocol" are used synonymously. But
I remain convinced that the applicablity of the 1949 GCs
is not predjudiced by calling a prisoner a 'terrorist' even
if the appelation is justified by fact.
Tim Daneliuk wrote:
> fredf...@spamcop.net wrote:
> <SNIP>
> >>From the Fourth Protocol, 1949:
> >
> > Art. 4. Persons protected by the Convention are those who,
> > at a given moment and in any manner whatsoever, find themselves,
> > in case of a conflict or occupation, in the hands of a Party to
> > the conflict or Occupying Power of which they are not nationals.
> >
>
> Sorry Sparky, the 4th Protocol is specifically authored for *civilians*.
> A person engaging in combat while dressed in civilian garb - i.e., No
> distinguishable uniform is NO LONGER A CIVILIAN, and thus not protected
> by this Geneva agreement. That's why we can legally hang spies, incarcerate
> them without normal due process, and generally do (almost) anything
> we want to them. The Geneva conventions (last I read them - perhaps
> Barbara Streisand or Rosie O'Donnell have updated them with their
> considerable intellectual abilities) make a clear distinction between
> combatants/non-combatants/civilians. Too bad all the Lefties today
> can't do the same thing ...
> --
Mr Daneliuk is encouraged to cite the artilces in the GCs where he
read the "clear distinction between
combatants/non-combatants/civilians.
Regardless, there is no place in the GCs where a statement, let alone
a clear one, is made that any of the three are not protected persons,
by virtue of being one or more of the three.
While it is also true that the title of the Fourth Protocol refers
specifically
to civlilians, many clauses within the Fourth protocol refer to members
of the armed forces. So the notion that the "any person" as used in
the
Fourth protocol excludes persons who fail to conform to Mr Daneliuk's
definition of civlian, is because of that reference in the title, is
without
merit.
While terms of art such as "spy" and "sabotuer" may seem quaint
to our Attorney General the modern term 'terrorist' was not in vogue
in 1949. The defintions, however do not differ substantively. They
are all persons, who engage in hostilities while not in uniform. There
appears no reasonable basis to claim that the Fourth Protocol
provisions for spies and sabotuers are not as applicable to
'terrorists'.
The ICRC discusses these issues and others, concluding:
http://www.icrc.org/ihl.nsf/COM/380-600007?OpenDocument
In short, all the particular cases we have just been
considering confirm a general principle which is embodied
in all four Geneva Conventions of 1949. Every person in
enemy hands must have some status under international
law: he is either a prisoner of war and, as such, covered
by the Third Convention, a civilian covered by the Fourth
Convention, or again, a member of the medical personnel
of the armed forces who is covered by the First Convention.
There is no ' intermediate status'; nobody in enemy hands
can be outside the law. We feel that that is a satisfactory
solution -- not only satisfying to the mind, but also, and
above all, satisfactory from the humanitarian point of view.
Regarding
That's why we can legally hang spies, incarcerate
them without normal due process, and generally do
(almost) anything we want to them.
My first criticism is with the fundamental illogic of the
notion. It is the contrapositive of a circular argument.
Unless a person receives due process it can never
be known whether or not that person was entitled
to due process in the first place. Thus due process
can never be denied without the attendent risk that
it is being denied to one who is entitled to it.
Regarding the specific atrocities advocated above,
execution of spies without due process has been
contrary to the laws of war since at least the Hague
Conventions early in the 20th Century, and prohibitted
in the United States by implication of an Act of
the Contintental Congress since the 18th Century.
"Almost anything else" Mr Daneliuk might wish
to advocate is prohibitted by criminal statues that
do not include as a defense, a belief that the
victim was a spy, 'terrorist' or whomever.
The United States does not permit outlawry,
even for convicted crimnals.
Finally, the 1949 Geneva Conventions are not the
only treaties to which the US is signatory.
The Convention against Torture etc, permits no
exceptions.
In summary, my argument that all prisoners
captured in the course or armed conflict or
occupation by the United States and who are
not US citizens are from the moment of their
capture forward, protected persons according
to the 1949 Geneva Conventions is supported
by a plain reading of the Conventions themselves
and by the interpretations by the ICRC and USSC.
--
FF
Tim Daneliuk
> Note crossposting.
>
> Mr Daneliuk seems to have me confused with another
> author. Regardless:
???
>
> OP stated that 'terrorists' are not protected by the Geneva
> Conventions. I pointed out that _prisoners_ of a nation
> other than their own, are always protected persons, though
> that status does not preclude trial and punishment for crimes
> comitted prior to their capture, such as fighting in civilian
> disguise.
>
> I cited the fourth article of the Fourth protocol of the 1949
> Conventions and said that in the quoted text "the convention"
> refers to the 1949 Convention in its entirety, not to any specific
> protocol thereof. Mr Daneliuk disagreed as indicated below.
> Upon review, I am less than certain as to whether the terms
> "convention" and "protocol" are used synonymously. But
> I remain convinced that the applicablity of the 1949 GCs
> is not predjudiced by calling a prisoner a 'terrorist' even
> if the appelation is justified by fact.
I don't think anyone claimed that the word "terrorist" somehow
changes the law. I think the claim was (and is) that a person
making war in civilian clothing loses their status as a civilian
(aka non-combatant) and thus the protections that go with it.
They also have no status as a "soldier" because they are not
wearing an identifiable uniform. They thus have little or no
standing under the GC because they are not named as one of
specific classes of those protected.
Let's take the simplest possible path here. The *title*
of the GC in question:
Convention (IV) relative to the Protection of *Civilian*
Persons in Time of War. Geneva, 12 August 1949. (Emphasis
mine).
Please explain to the class how one can take up
arms and still be a "civilian"?
You want to presume the convention affirmatively - that
by default, anyone not named explicitly is covered.
I presume it negatively - you don't have standing unless
named in a specific class.
It is clearly impossible to treat someone as a "spy" until we know they
are one. Some "process" is obviously required to do so. But you and
yours want the "due" part of that to extend well beyond even the
language of the GC.
Notwithstanding that, you go through all kinds of mental contortion to
demand that a person who is not: a) A uniformed combatant, b) A
non-combatant civilian, c) A diplomat, or d) A non-participating member
of another nation (all subjects of the GCs *by name*) should also be
covered. Don't you suppose that if the writers of the GCs - who took the
time to name these particular classes of individuals - had wanted to
provide specific protection for saboteurs, spies, terrorists, et al they
would have managed to also make *specific* reference to them as well?
>
> Regarding the specific atrocities advocated above,
> execution of spies without due process has been
> contrary to the laws of war since at least the Hague
> Conventions early in the 20th Century, and prohibitted
> in the United States by implication of an Act of
> the Contintental Congress since the 18th Century.
> "Almost anything else" Mr Daneliuk might wish
> to advocate is prohibitted by criminal statues that
> do not include as a defense, a belief that the
> victim was a spy, 'terrorist' or whomever.
You are inventing an argument I did not make. I never said there should
be no "due process". Indeed I think there should be - it's called a
military tribunal. But I see no reason legally or morally to extend the
protections of our domestic legal/social contract nor the protections of
the GCs (wherein such people are not named, but every other class of
protected individual is) to such individuals.
>
> The United States does not permit outlawry,
> even for convicted crimnals.
>
> Finally, the 1949 Geneva Conventions are not the
> only treaties to which the US is signatory.
> The Convention against Torture etc, permits no
> exceptions.
Ah, the Dancing Left is back. Every sane and reasonable person should be
opposed to "torture". But the debate at hand is whether scaring people,
intimidating them, making them uncomfortable, depriving them of sleep
constitutes "torture". You know this is the debate but insist in writing
as if your debating opponents just blindly support any and all forms of torture
ignoring that there are degrees of coercion, not all of which are widely
accepted as being "torture". You also conveniently ignore that the
subjects of said intimidation are not party to our legal/social contract
and have no standing to make claims against it.
>
> In summary, my argument that all prisoners
> captured in the course or armed conflict or
> occupation by the United States and who are
> not US citizens are from the moment of their
> capture forward, protected persons according
> to the 1949 Geneva Conventions is supported
> by a plain reading of the Conventions themselves
> and by the interpretations by the ICRC and USSC.
I don't see it that way. But if, in fact, you're right then you
and your fellow Left travelers have an excellent case to make
for bringing war crimes charges against this administration.
For all the whining on the Left (and all the stupidities on
the Right), I somehow don't think this is going to happen.
Why? Because, rhetoric aside, you know there is no such case
to be made. You know that the disposition of non-uniformed
combatants is not as cut and dried as you'd like to paint it.
--
----------------------------------------------------------------------------
Tim Daneliuk tun...@tundraware.com
PGP Key: http://www.tundraware.com/PGP/
fredf...@spamcop.net
off-topic
there.
Tim Daneliuk wrote:
> fredf...@spamcop.net wrote:
> > Note crossposting.
> ...
Brief summary: The issue in dispute remains that stated
in the two paragraphs below:
> >
> > OP stated that 'terrorists' are not protected by the Geneva
> > Conventions. I pointed out that _prisoners_ of a nation
> > other than their own, are always protected persons, though
> > that status does not preclude trial and punishment for crimes
> > comitted prior to their capture, such as fighting in civilian> > disguise.
> > ...
> > I remain convinced that the applicablity of the 1949 GCs
> > is not predjudiced by calling a prisoner a 'terrorist' even
> > if the appelation is justified by fact.
>
> I don't think anyone claimed that the word "terrorist" somehow
> changes the law. I think the claim was (and is) that a person
> making war in civilian clothing loses their status as a civilian
> (aka non-combatant) and thus the protections that go with it.
> They also have no status as a "soldier" because they are not
> wearing an identifiable uniform. They thus have little or no
> standing under the GC because they are not named as one of
> specific classes of those protected.
The difference between "little" and "no" is precisely the basis
of our disagreement. I readily agree that the GCs guarantee
some persons fewer protections than others.
If you accept that 'terrorists' have _some_ guarantees of
protection by the GCs we are no longer in disagreement
on that issue.
Unless you wish to discuss the specifics of those
protections, there is no need to continue.
However, I will continue below on the asumption that
you may be tempted to revert to your earlier position
that they have _no_ protections.
>
> >
> > Tim Daneliuk wrote:
> >> fredf...@spamcop.net wrote:
> >> <SNIP>
> >>> >From the Fourth Protocol, 1949:
> >>>
> >>> Art. 4. Persons protected by the Convention are those who,
> >>> at a given moment and in any manner whatsoever, find themselves,
> >>> in case of a conflict or occupation, in the hands of a Party to
> >>> the conflict or Occupying Power of which they are not nationals.
> >>>
> >> Sorry Sparky, the 4th Protocol is specifically authored for *civilians*.
> >> A person engaging in combat while dressed in civilian garb - i.e., No
> >> distinguishable uniform is NO LONGER A CIVILIAN, and thus not protected
> >> by this Geneva agreement. That's why we can legally hang spies, incarcerate
> >> them without normal due process, and generally do (almost) anything
> >> we want to them. The Geneva conventions (last I read them - perhaps
> >> Barbara Streisand or Rosie O'Donnell have updated them with their
> >> considerable intellectual abilities) make a clear distinction between
> >> combatants/non-combatants/civilians. Too bad all the Lefties today
> >> can't do the same thing ...
> >> --
> >
> > Mr Daneliuk is encouraged to cite the articles in the GCs where he
> > read the "clear distinction between
> > combatants/non-combatants/civilians.
> >
> > Regardless, there is no place in the GCs where a statement, let alone
> > a clear one, is made that any of the three are not protected persons,
> > by virtue of being one or more of the three.
> >
> > While it is also true that the title of the Fourth Protocol
> > refers specifically to civlilians, many clauses within the
> > Fourth protocol refer to members of the armed forces.
> > So the notion that the "any person" as used in
> > the Fourth protocol excludes persons who fail to conform
> > to Mr Daneliuk's definition of civlian, [] because of that
> > reference in the title, is without merit.
> >
> > While terms of art such as "spy" and "sabotuer" may seem quaint
> > to our Attorney General the modern term 'terrorist' was not in vogue
> > in 1949. The defintions, however do not differ substantively. They
> > are all persons, who engage in hostilities while not in uniform. There
> > appears no reasonable basis to claim that the Fourth Protocol
> > provisions for spies and sabotuers are not as applicable to
> > 'terrorists'.
>
> Let's take the simplest possible path here. The *title*
> of the GC in question:
>
> Convention (IV) relative to the Protection of *Civilian*
> Persons in Time of War. Geneva, 12 August 1949. (Emphasis
> mine).
>
> Please explain to the class how one can take up
> arms and still be a "civilian"?
As you know, I already addressed this issue in the very
article to which you replied. However, inasmuch as the
moderator has allowed you to post the question, I presume
he/she will not object to further if somewhat repeticious
elaboration on the answer.
The Fourth Protocol (e.g. for the protection of CIVILIANS)
directly addresses protections afforded to captve members
of the armed forces, militias,and others who may be collectively
called combatants. (Primarily in article 3)
So even if we accept the premise that a 'terrorist'
is not a civilian, the conclusion that no provision of
the Fourth protocol can be applicable to them because
of the use of the word civilian, in the title is plainly wrong
as proven by even a casual reading of the plain text of
the Fourth Protocol itself.
But by one reasonably objective if overly broad definition,
a 'terrorist' is a civilian who has taken up arms. Protected
persons who engage in hostile acts are expressly addressed
in the Conventions, using those very words, "protected person"
and "hostile activities" (In the Third Protocol, IIRC) as are the
aformentioned sabotuers, who may also be civilians
and typically at the time they are captured, are not in
uniform and at least claim to be civilians putting the issue
into controversy.
Perhaps you thought that by "hostile activies" the
authors meant something like mooning soldiers of
the occupation army. I'm pretty sure 'taking up arms'
qualifies as a hostile activity.
The fact that the Conventions address the partial and only
partial curtailment of the protections afforded a protected
person who is definitely suspected of or engaged in hostile
activities, the argument that, an otherwise protected person
(e.g. civilian) is longer protected at all if they engage in
hostile acts.
The provision plainly does not apply to soldiers.
>
> You want to presume the convention affirmatively - that
> by default, anyone not named explicitly is covered.
> I presume it negatively - you don't have standing unless
> named in a specific class.
>
No, First, I presume it literally.
"those who,
at a given moment and in any manner whatsoever,
find themselves, in case of a conflict or occupation,
in the hands of a Party to the conflict or Occupying
Power of which they are not nationals."
It does not say "civilians" even though the authors,
had they intended to restrict the defintion of "protected
person" to civilians only, could clearly have done so by
using the word 'civilian' instead of or following 'those'.
I presume literally (or if you prefer, negatively) that by
NOT using the word civilian, the authors did NOT restrict
the definition to civilians only. Need I point out also that
while the Fourth Protocol defines 'protected persons', it
does NOT define 'civilian', nor is any definition of civilian
needed to understand the procioins regarding those
protected persons.
Secondly, I read the Fourth Protocol in its context as part
of the 1949 Conventions in their entirety, noting that the
Third Convention, for the protection of prisoners of war,
includes explicit provisions for civilians and the Fourth
Protocol, for the protection of civilians, includes explicit
provisions for members of the armed forces. I do not
suppose this to have been an errant cut-and-paste, but
a deliberate and purposeful decision, the clear object of
which is to assure that no person in the power of the
enemy is left without some degree of protection, even by
those nations who ratified one of the Protocols, but not
the other.
Finally, I read the Fourth Protocol as a morally responsible
and law-abiding person reads all humanitarian law, reading
it as a set of standards and guidelines for the treatment of
human beings.
The 'terrorists' aren't protected argument depends, from
its outset upon reading the Protocols with the intent to
discover some loophole or exception that could ostensibly
be invoked to justify a preconceived conclusion, and
more than that, a preconceived conclusion that would allow
shameful acts to be committed with impunity. That person
reads the Protocols the way Bill Clinton listens to questions
at a deposition. Not as someone with the intent of honestly
and honorably discharging his lawful duties and responsiblities
but as a miscreant seraching for words that can be twisted
to his advantage to away with past misdeeds or planning how
to get away with those he is already determined to commit .
But the dvocats of the theory, having failed to find such language
in the Protocols themelves the advocates of the theory twist
instead, words that are not found in the protocols themselves,
words like 'terrorist' and 'unlawful combattant'.
What decent, honorable person would search humanitarian law
for an interpretation that would allow its circumvention?
An attorney defending a client for past acts could do so in
clear conscience for he is duty bound to present the best
defense he can discover. But no one else.
The theory is not supported by the plain language of the
Protocols. It is not accepted by any body recognized as
athoritiative on the issue or tasked with monitoring compliance
with international humanitarian law. It has been expressly rejected
by the International Committee of the Red Cross. It has been
rejected by every judicial body that has adjudicated the matter
save some that were subsequenlty overturned by a higher
court. It is a theory that, to my knowledge, has not been
openly advanced in the past 30+ years by any legitimate
democratic Government on Earth, save the United States
of America, and few governments that do not merit description
as legitmate and democratic have espoused it either. Aside
from the US, the only government I actually recall claiming that
battlefield captives in its power were not entitled to the protections
of the Geneva Conventions were the governments of North
and South Vietnam and at the time the US (rightfully) rejected
half of that claim.
And there is no morally palpable motive that could
justify attemping to construct an argument supporting
the theory.
Nor is that principle unique to accusations of espionage,
eh?
Do you not recognize that the same is true for every
other allegation that particular individual in question
has committed acts which warrrant the forfeiture of any
of their rights?
I confess to not having researched this carefully but it
is commonly asserted that the standard for "due process"
mandated by the GCs is essentially the same process
that would be used to try one's own nationals were they
accused of similar offenses.
That is based only on what I have read here on UseNet.
On what do you base the remarks in that partcular
paragraph?
>
> Notwithstanding that, you go through all kinds of mental contortion to
> demand that a person who is not: a) A uniformed combatant, b) A
> non-combatant civilian, c) A diplomat, or d) A non-participating member
> of another nation (all subjects of the GCs *by name*) should also be
> covered. Don't you suppose that if the writers of the GCs - who took the
> time to name these particular classes of individuals - had wanted to
> provide specific protection for saboteurs, spies, terrorists, et al they
> would have managed to also make *specific* reference to them as well?
Had you read the Geneva Conventions yourself, you would be well
aware that they do indeed include '*specific* reference', albeit
without
asterisks, to saboteurs and spies. I have already informed you of
this. 'Terrorists" I suggest, are not included by name, only because
that particular word was not in vogue in 1949. For the sake of
completeness, I repeat my argument that there is little or no
substantive difference between 'terrorist' or at least many
'terrorists'
as that word is used by the present administration, and 'sabotuer'
as it is used in the Geneva Conventions. Both include persons
within or infiltrators of the indigenous civilian population who use
explosive devices to kill or injure members of the armed forces,
do material damage, and or deliberately or colaterally inflict
casualties on civilians and/or other activities hostile to the
security of the State.
>
>
> >
> > Regarding the specific atrocities advocated above,
> > execution of spies without due process has been
> > contrary to the laws of war since at least the Hague
> > Conventions early in the 20th Century, and prohibitted
> > in the United States by implication of an Act of
> > the Contintental Congress since the 18th Century.
> > "Almost anything else" Mr Daneliuk might wish
> > to advocate is prohibitted by criminal statues that
> > do not include as a defense, a belief that the
> > victim was a spy, 'terrorist' or whomever.
>
> You are inventing an argument I did not make. I never said there should
> be no "due process". Indeed I think there should be - it's called a
> military tribunal.
I remind you of your exact words:
"That's why we can legally hang spies, incarcerate
them without normal due process, ..."
While I do not accept Antonin Scalia's argument that
the word "due" in the due process clause is superfluous
and imparts no additional meaning, I none-the-less am loath
to attempt to break the concept down further into due
process and normal due process, let alone posit a third
other-than-normal due process.
It is my opinion that either the process is due, meaning
it provides sufficient protections for the accused when the
grievousness of the accusation and severity of the potential
punishment, is considered, or it is not.
> But I see no reason legally or morally to extend the
> protections of our domestic legal/social contract nor the protections of
> the GCs (wherein such people are not named, but every other class of
> protected individual is) to such individuals.
If I understand what you mean by our 'domestic
legal/social contract' then plainly "due process" is
one of those protections just as it is one of the
protections of the GCs. So I read that paragraph
as direclty contradicting your previous statement that
at the very least some as yet undefined, other-than-due
process should be extended to the accused.
The arbiters of our 'domestic
legal/social contract'', e.g. "Judges" have enough
trouble sorting out what is or is not due process
without the added complication of setting standards
for normal, and/or other-than-normal, due process.
I presume those persons responsible for monitoring
compliance with the GCs, e.g. the International Committee
of the Red Cross, are similarly disinterested in such an
endeavor.
However I do note (again) that it is generally asserted
that the international standard for due process when
trying a foreign national is, at a minimum, the same
as a nation uses when trying its own.
>
> >
> > The United States does not permit outlawry,
> > even for convicted crimnals.
> >
> > Finally, the 1949 Geneva Conventions are not the
> > only treaties to which the US is signatory.
> > The Convention against Torture etc, permits no
> > exceptions.
>
> Ah, the Dancing Left is back. Every sane and reasonable person should be
> opposed to "torture". But the debate at hand is whether scaring people,
> intimidating them, making them uncomfortable, depriving them of sleep
> constitutes "torture". You know this is the debate but insist in writing
> as if your debating opponents just blindly support any and all forms of torture
> ignoring that there are degrees of coercion, not all of which are widely
> accepted as being "torture". You also conveniently ignore that the
> subjects of said intimidation are not party to our legal/social contract
> and have no standing to make claims against it.
A sane and reasonable person would read the Convention
Against Torture etc, or at the very least the full title thereof:
_The United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment_
(UNCAT)
before lecturing others that it prohibits only torture
as he choses to define it.
Clearly you have not. The conclusions as to your sanity
and reasonableness are left as an exercise for the readers
of this article.
Regarding the standing of persons who "are not party to our
legal/social contract", I have in the past asked you to
explain what you mean, with references to your sources.
The reference you provided was "The law" and the balance
of your discussion referenced as a source no one but yourself.
There are a number of authors who use the similar term,
"social contract" but had you based your remarks on their
work surely you would have mentioned them upon my request.
I presume therefor that the legal/social contract theory on
which so many of your conclusions are based, is an original
model, of your own personal intellectual construction. While
I do believe that such exercises are not without merit and may
even engage in them myself from time to time, I do not
suggest that international humanitarian law be interpretted
on the basis of my abstract musings and soundly reject any
suggestion that they be based on yours.
>
> >
> > In summary, my argument that all prisoners
> > captured in the course or armed conflict or
> > occupation by the United States and who are
> > not US citizens are from the moment of their
> > capture forward, protected persons according
> > to the 1949 Geneva Conventions is supported
> > by a plain reading of the Conventions themselves
> > and by the interpretations by the ICRC and USSC.
>
> I don't see it that way.
It is clear that you disagree with me. It is not
clear if you see a substantive disagreement
between myself and the ICRC or USSC.
So please specify the antecedent for 'it'.
Does 'it' refer to my opinion, or does 'it' refer
to my claim that the ICRC and USSC agree with
my opinion?
> But if, in fact, you're right then you
> and your fellow Left travelers have an excellent case to make
> for bringing war crimes charges against this administration.
I disavow affiliation with "The Left" even as you disavow
affiliation with "The Right", answering only for myself.
However I take no offense at your intimation as I do
not believe your denial either.
> For all the whining on the Left (and all the stupidities on
> the Right), I somehow don't think this is going to happen.
> Why? Because, rhetoric aside, you know there is no such case
> to be made.
Who, pray tell, would prosecute those crimes?
Surely not the International Criminal Court as it
does not yet assert jurisdiction over US Nationals.
Surely not the US Department of Justice, as it is
presently managed by the a man whom GWB
described as instrumental in the developement of those
very policies the application of which would constitute
the alleged criminal conduct, and therefor would surely
be a codefendant or material witness.
While on the subject of Alberto Gonzales,
why, during his confirmation hearings, did Alberto
Gonzales profess to have no memory whatsoever of
the advice he gave the President on these matters,
even though the President himself said that his
advice on those very same matters was one of the
reasons he nominated Gonzales for the office of
Attorney General? Why, in response to a written
request for similar information did Gonzales respond
to the effect that no documents recording that advice
could be found?
Please note that Gonzales did not decline to answer
on grounds of National Security, even though that
excuse would surely have been accepted by every
Republican on the Judiciary Committee and every
Republican in the Senate, as well as a majority
of Democrats if not each and every one, of both.
Please note that Gonzales did not decline to answer
on grounds of Executive Privilege, even though that
excuse would surely have been accepted by every
Republican on the Judiciary Committee and every
Republican in the Senate, as well as a significant
number of Democrats of both.
Please note that Gonzales did not decline to answer
on grounds of Attorney-Client Privilege, even though
that excuse would probably have been accepted by every
Republican on the Judiciary Committee and every
Republican in the Senate, and possibly some
number of Democrats of both.
Please note also that the Republicans commanded
a majority on both the Judiciary Committee and in
the Senate so that Alberto Gonzales did not need
the vote of so much as a single Democrat in order to
be confirmed as Attorney General.
Instead of asserting some legally acceptable or at least
plausible reason to not answer the question, Gonzales
said he couldn't remember.
I don't believe him, but suppose that if Gonzales had
invoked the Fifth Amendment, SOME Republicans at
least might not have voted for him.
> You know that the disposition of non-uniformed
> combatants is not as cut and dried as you'd like to paint it.
>
I remind you of the conclusion stated by the International
Committee of the Red Cross:
Every person in
enemy hands must have some status under international
law:
When informed that one of their Nationals was in detention
at Guantanamo Bay Sweden informed the US that it
expected that person to be accorded the protections of
the Geneva Conventions.
France did the same regarding French detainees.
UK did the same for Britons,
Australia did the same for its nationals.
The United Nations High Commissioner for Human Rights
admonished the US:
"The legal status of the detainiees, and their entitlement
to prisoner-of-war (POW) status, if disputed, must be determined
by a competent tribunal, in accordance with the provisions of
Article 5 of the Third Geneva Convention." ...
-- Mary Robinson, United Nations High Commissioner for Human Rights,
January 16, 2002
In addition to the above mentions nations, ISTR that there were
or are detained at Guantanamo Bay nationals of China, Uzbekistan,
Pakistan, and Afghanistan. I do not recall reading that any of those
nations have asserted that their nationals should be accorded the
benefit of the Geneva Conventions.
So we see that, with the possible exception of Afghanistan,
every nation with a legtimate democratic form of Government
and that has had its nationals imprisoned at Guantanamo Bay,
The International Committee of the Red Cross, and the
UNHCHR, all considered the issue cut and dried.
While the silence from those other nations, which are
presently ruled by the worlds worst despots, may be
presumed to be agreement, even they, by virtue of their
silence on the issue, appear ashamed to openly assert
support for the interpretation advanced by the United
States of America. Fine company our administration
has chosen on this issue.
--
FF
Dick Adams
[..huge snip..]
> Finally, I read the Fourth Protocol as a morally responsible
> and law-abiding person reads all humanitarian law, reading
> it as a set of standards and guidelines for the treatment of
> human beings.
>
> The 'terrorists' aren't protected argument depends, from
> its outset upon reading the Protocols with the intent to
> discover some loophole or exception that could ostensibly
> be invoked to justify a preconceived conclusion, and
> more than that, a preconceived conclusion that would allow
> shameful acts to be committed with impunity. That person
> reads the Protocols the way Bill Clinton listens to questions
> at a deposition. Not as someone with the intent of honestly
> and honorably discharging his lawful duties and responsiblities
> but as a miscreant seraching for words that can be twisted
> to his advantage to away with past misdeeds or planning how
> to get away with those he is already determined to commit .
> But the dvocats of the theory, having failed to find such language
> in the Protocols themelves the advocates of the theory twist
> instead, words that are not found in the protocols themselves,
> words like 'terrorist' and 'unlawful combattant'.
[..remainder snipped..]
These are too of the most interesting paragraphs I have read
in several years. It begins with at attempt to grasp for
moral highground and ends with an ad hominem attack against
those who disagree with the author. I even fail to see the
leagl argument, but maybe I snipped it out of boredom.
Who is an authority for interpretation of the Protocols of
the Geneva Convention? Since I am not one of them, I do not
know the others may be. But I have read nothing in this
material or the material I snipped that indicated such an
authority has been involved in this thread.
It is unfortunate that the GC did not define ethnic cleansing
and hijacking civilian aircraft to use a Kamikaze bombs as war
crimes after all these are crimes against a civilian population
of nations who signed the Geneva Convention.
This thread has not been without merit as it points out that
there are several terms or phrases of art that need to be
updated or clarified within the protocals of the Geneva
Convention. Possibly the Convention needs to be rewritten.
Keep in mind that the most devastating wars other than the
Mongul conquests have been wars of religious and ethnic
persecution.
Dick
--
Richard D. Adams, CPA (retired)
tundra
fredf...@spamcop.net wrote:
> rec.woodworking removed from distribution as this discussion is
> off-topic
> there.
>
> Tim Daneliuk wrote:
> > fredf...@spamcop.net wrote:
> > > Note crossposting.
> > ...
>
> Brief summary: The issue in dispute remains that stated
> in the two paragraphs below:
>
> > >
> > > OP stated that 'terrorists' are not protected by the Geneva
> > > Conventions. I pointed out that _prisoners_ of a nation
> > > other than their own, are always protected persons, though
> > > that status does not preclude trial and punishment for crimes
> > > comitted prior to their capture, such as fighting in civilian> > disguise.
> > > ...
> > > I remain convinced that the applicablity of the 1949 GCs
> > > is not predjudiced by calling a prisoner a 'terrorist' even
> > > if the appelation is justified by fact.
> >
<Debate History Snipped>
1) You know exactly what I refer to when I mention the legal/social
contract upon which our republic is built. The notion of such
a contract is found he founding philosophers who served as
the intellectual catalyst for the Framers. The protections
of that contract accrue only to individuals party to it, not
foreign invaders onto our soil. These people are spies on our
shores with very limited legal standing. Certainly, they are not
entitled to the full protections of our domestic legal system.
The can (and have) been hanged as such once they are
determined to be so without most of the niceties afforded
a domestic criminal subject. In short, The only "due process"
they are entitled to is that which initially determines their
status as such.
2) As regards to the matter of people fighting as civilians
in *other* lands, you argument is built on this little gem
in your reply:
But by one reasonably objective if overly broad definition,
a 'terrorist' is a civilian who has taken up arms. Protected
persons who engage in hostile acts are expressly addressed
in the Conventions, using those very words, "protected person"
and "hostile activities" (In the Third Protocol, IIRC) as are the
aformentioned sabotuers, who may also be civilians
and typically at the time they are captured, are not in
uniform and at least claim to be civilians putting the issue
into controversy.
There are several problems with this:
a) The Conventions distinguish between "Protected persons who
engage in hostile acts" and "civilians going so far (gasp!)
as to have separate conventions for each. The moment anyone
engages in hostile acts they are, by definition, no longer
civilians they are _combatants_. We then turn to the protections
afforded
combatants. In order to be recognized as a combatant
protected under the GC, a member of a "militia" (the closest
thing you'll find to "terrorist" in the document and likely
the best match given the actions of said group) must, among
other things, have these attributes:
- Maintain a "fixed distinctive sign recognizable at a
distance"
- Carry arms "openly"
But terrorist do neither of these things unless you consider
an evil disposition a "distinctive sign" and shoving Semtex
up your rectum as "carrying arms openly".
b) Moreover, to be recognized as a protected combatant one of the
other requirement is:
- Be commanded by a person "responsible" for his subordinates.
But how can their be "responsibility" when there is no
nation-state entity to which they are responsible? Though
individual terrorists have membership in some nation or another,
they are not acting in the name of that nation. They are acting,
in this case, in the name of a fanatical religious cause, wherein
nothing remotely resembling military law, responsibility, and all
the rest exist. The "battlefield commanders", more often than
not
are not part of a cohesive chain of command (though this is
sometimes
the case), but are acting through a far less formal set of
"cutouts"
exactly to make sure no traceable organizational hierarchy can
be discovered.
c) Then we have this requirement for someone to be recognized as a
combatant:
- They must conduct their operations "in accordance with the
laws and
customs of war."
Like, say, *not* wearing a uniform? Like, say, "fighting" from
inside
mosques and other similar civilian institutions and locations?
Like,
say, brutally beheading non-combatant? Like say, primarily
targeting
civilian, not military, targets? Like, say, assassinating
anyone who
does not agree with their religious formulation?
You can take one of two positions here, both of them deadly to
your argument:
- If you take the position that these actions are *not* the
within the "laws and customs of war", then terrorists do not
qualify as combatants by the GC definition. But neither are
they civilians so they have NO standing under the GC as
a distinctly identified protected class.
- If you take the position that these actions *are*, in fact,
well within the "laws and customs of war", thereby confering
GC combatant status to the terrorist, then my roasting Ahmed
on a barbeque to interrogate him is similary within said customs.
(In fact, in that case, I am actually behaving *better* because
his
targets were civilian for the most part, while mine is exclusively
military.)
Yes, a "terrorist" does have a very limited set of rights under the
GC - to be treated humanely long enough to get them to a military
tribunal to affirm their status as being neither a civilian nor
a lawful combatant, but a "non-lawful combatant" to use the current
trigger phrase. And that's the point at which "all bets are off".
3) Then we have the more obvious point which I've not bothered to
bring up so far and which you've fastidiously avoided: Although
"terrorists" individually have some citizenship, their acts of
"combat" are not in the name of any entity, nation, or state
*that is a signatory to the GCs". How, pray tell, can they be
entitled to the protections of a contract to which they are not
party? If UBL were acting first as a citizen of Saudi Arabia (when
he still was one), he would at least arguably have a claim on the
protection of the GCs (to the extent that Saudi Arabia recognized
them). But UBL is acting in the name of his very own special version
of Allah who tells him to do naughty things. The last time I
checked,
*that* entity wasn't a GC signatory.
4) Perhaps what has you so confused is this statement early on in
the first GC:
In cases not covered by this Protocol or by other international
agreements, civilians and combatants remain under the protection
and
authority of the principles of international law derived from
established custom, from the principles of humanity and from the
dictates of public conscience.
OK. Established custom is the rapid execution of spies. The
"public conscience" of a great many people - I daresay the majority
-
is to treat people that make war on innocents intentionally very
harshly, to deprive them of anything resembling any comfort, and
to use almost any means to extract from them information they may
possess to try and prevent further such acts.