Geneva Convention

[Jenny_Jackson]

Ok... I'm pretty stupid, but GW Bush and the leading Republicans have been fighting over certain Articles of the Geneva Convention. Today it was reported that Bush and John McCain came to a deal.

As I recall there are two areas of contention: Who can be held and how they should be treated. I just read the silly thing. I doesn't seem all that confusing to me.

First WHO


"4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces
4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
that of being commanded by a person responsible for his subordinates;
that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
that of carrying arms openly;
that of conducting their operations in accordance with the laws and customs of war.
4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.
4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy.
Article 5 specifies that prisoners of war (as defined in article 4) are protected from the time of their capture until their final repatriation. It also specifies that when there is any doubt as to whether a combatant belongs to the categories in article 4, they should be treated as such until their status has been determined by a competent tribunal."

I think that covers just about everyone in a war zone.

Now, HOW SHOULD THEY BE TREATED:

"(Article 13): ...Prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity."

I think that pretty much rules out torture, starvation, threats by guard dogs and all the other crimes commited at Abu Grabe.

So, what's the controlversy? As I hear, Bush wants clearifcation now as to how to go about bringing these people to court. It seems a mute point since their civil rights have already been violated and they should all be released.

Some of those people are really bad. But we are supposed to be a nation of laws.

 

[rgraham666]

The people who run the current administration believe rules are for other, lesser people. They are only a hindrance to them.

 

[SeaCat]

Ok... I'm pretty stupid, but GW Bush and the leading Republicans have been fighting over certain Articles of the Geneva Convention. Today it was reported that Bush and John McCain came to a deal.

As I recall there are two areas of contention: Who can be held and how they should be treated. I just read the silly thing. I doesn't seem all that confusing to me.

First WHO


"4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces
4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
that of being commanded by a person responsible for his subordinates;
that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
that of carrying arms openly;
that of conducting their operations in accordance with the laws and customs of war.
4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.
4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy.
Article 5 specifies that prisoners of war (as defined in article 4) are protected from the time of their capture until their final repatriation. It also specifies that when there is any doubt as to whether a combatant belongs to the categories in article 4, they should be treated as such until their status has been determined by a competent tribunal."

I think that covers just about everyone in a war zone.

Now, HOW SHOULD THEY BE TREATED:

"(Article 13): ...Prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity."

I think that pretty much rules out torture, starvation, threats by guard dogs and all the other crimes commited at Abu Grabe.

So, what's the controlversy? As I hear, Bush wants clearifcation now as to how to go about bringing these people to court. It seems a mute point since their civil rights have already been violated and they should all be released.

Some of those people are really bad. But we are supposed to be a nation of laws.

A question here, and I am not being a wise ass for once.
How do you classify Gorilla (sp) Forces. How do they classify under the Geneva Conventions and how are they to be treated? How are these types of forces considered different than many of those who are being held?

Cat

 

[amicus]

Originally Posted by Jenny_Jackson


No I am not going to copy and paste the entire rant as it is patently a political post, anti Bush, anti war and basically ignorant and illiterate.

You may be surprised to learn that the United States in 1947, instituted and campaigned for the Geneva Convention rules of warfare and prisoner treatment in response to the inhumane and cruel treatment afforded American prisoners of war by Japan and Germany. I might also include the Soviet Union as the Communists, by definition, had no respect for individual human life.

The rules of War and the Geneva Convention are intended to cover combatant forces in the employ of a nation at war; i.e. military forces with allegiance to a home country.

Espionage, spys, became another area of contention with the U2 incident which required a further refinement in the rules of war, capture, imprisonment and punishment.

What is not covered in the Geneva Convention is how one can legally deal with terrorists who are claimed by no country, who are not 'legitimate' representatives of any government. e.g. Islamo fascists, religious terrorists.

They operate beyond the rules, they do not adhere to any accepted code of conduct regarding warfare.

They are beyond borders and beyond international law and do not have the protection of the law of any nation or any international agreement.

Now...you answer the question...how should they be dealt with? With the caveat that you acknowledge they attack innocent civilians, Bali, Madrid, London, New York, et al...

How should any nation deal with terrorists who are beholden to no nation, to no code of ethics or rules of engagement; you tell me.

amicus...

 

[Pure]

Ami, good question:

How should any nation deal with terrorists who are beholden to no nation, to no code of ethics or rules of engagement; you tell me.

How about: Grab 'em and torture the shit outta them, till they spill the beans on their yellow bellied pals. And if that doesn't work, grab their mothers, wives and kids: rape and bayonet their mothers and wives before their eyes and go after the kids with a blow torch. Then i guarantee no one will mess with us and if they do and get caught, we'll have all the info we need to protect American freedom and rule of law.

 

[elsol]

Originally Posted by Jenny_Jackson


No I am not going to copy and paste the entire rant as it is patently a political post, anti Bush, anti war and basically ignorant and illiterate.

You may be surprised to learn that the United States in 1947, instituted and campaigned for the Geneva Convention rules of warfare and prisoner treatment in response to the inhumane and cruel treatment afforded American prisoners of war by Japan and Germany. I might also include the Soviet Union as the Communists, by definition, had no respect for individual human life.

The rules of War and the Geneva Convention are intended to cover combatant forces in the employ of a nation at war; i.e. military forces with allegiance to a home country.

Espionage, spys, became another area of contention with the U2 incident which required a further refinement in the rules of war, capture, imprisonment and punishment.

What is not covered in the Geneva Convention is how one can legally deal with terrorists who are claimed by no country, who are not 'legitimate' representatives of any government. e.g. Islamo fascists, religious terrorists.

They operate beyond the rules, they do not adhere to any accepted code of conduct regarding warfare.

They are beyond borders and beyond international law and do not have the protection of the law of any nation or any international agreement.

Now...you answer the question...how should they be dealt with? With the caveat that you acknowledge they attack innocent civilians, Bali, Madrid, London, New York, et al...

How should any nation deal with terrorists who are beholden to no nation, to no code of ethics or rules of engagement; you tell me.

amicus...

While I don't disagree with you on the issue of terrorists... unfortunately, the evidence of necessary controls has already been demonstrated.

The US took a Canadian citizen to Syria, tortured him until he confessed, and *gasp* he wasn't actually a member of Al Queida or a terrorist... and all we can say is "Hey, we're sorry!"

Thus we arrive at the American worries about the possibility of mistreating the innocent in a desire to get the guilty.

Personally, I say 'So what if we break a few hu... errr, eggs."

After all, the inevitable endpoint of life is death... so what's the big deal if a few of those deaths come a little early from the use of 'drowning' as a technique to get the truth and something accidently dies.

 

[Pure]

i hate to say it, but amicus is right

that terrorists (disguised, concealed) like those of al Qaeda in the 9-11 events, do not qualify as 'prisoners of war', if caught. It is to such Prisoners of War that most the the Third Geneva convention applies. Only one para of the Third Geneva Convention may apply, regarding those whose status is unclear; see below.

However the fourth Geneva Convention arguably applies.

Further the famous Supreme Court decision in Quirin, recognized that German spies would NOT receive the usual protections, BUT it did recornize their right to be tried before a military tribunal

Fourth Geneva Convention

Article 5
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

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.
·
·
· Third Geneva Convention:
·
· (Article 5): "Should any doubt arise as to whether persons, having committed a belligerent act..." is a prisoner of war "...such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."


http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=1

U.S. Supreme Court

EX PARTE QUIRIN, 317 U.S. 1 (1942)



By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations7 and also between [317 U.S. 1, 31] 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. 8

The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. See Winthrop, Military Law, 2d Ed., pp. 1196-1197, 1219-1221; Instructions for the Government of Armies of the United States in the Field, approved by the President, General Order No. 100, April 24, 1863, sections IV and V.

Such was the practice of our own military authorities before the adoption of the Constitution,9 and during the Mexican and Civil Wars. 10 [317 U.S. 1, 32] Paragraph 83 of General Order No. 100 of April 24, 1863, directed that: 'Scouts or single soldiers, if disguised in the dress of the country, or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.'

And Paragraph [317 U.S. 1, 33] 84, that 'Armed Prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.' 11

These and related provisions have [317 U.S. 1, 34] been continued in substance by the Rules of Land Warfare promulgated by the War Department for the guidance of the Army. Rules of 1914, Par. 369- 77; Rules of 1940, Par. 345-57. Paragraph 357 of the 1940 Rules provides that 'All war crimes are subject to the death penalty although a lesser penalty may be imposed'.

Paragraph 8 (1940) divides the enemy population into 'armed forces' and 'peaceful population', and Paragraph 9 names as distinguishing characteristics of lawful belligerents that they 'carry arms openly' and 'have a fixed distinctive emblem'. Paragraph 348 declares that 'persons who take up arms and commit hostilities' without having the means of identification prescribed for belligerents are punishable as 'war criminals'. Paragraph 351 provides that 'men and bodies of men, who, without being lawful belligerents' 'nevertheless commit hostile acts of any kind' are not entitled to the privileges of prisoners of war if captured and may be tried by military commission and punished by death or lesser punishment.

And Paragraph 352 provides that 'armed prowlers ... or persons of the enemy territory who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads or canals, of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to be treated as prisoners of war'. As is evident from reading these and related Paragraphs 345-347, the specified violations are intended to be only illustrative of the applicable principles of the common law of war, and not an exclusive enumeration of the punishable acts recognized as such by that law.

The definition of lawful belligerents by Paragraph 9 is that adopted by Article 1, Annex to Hague Convention No. IV of October 18, 1907, to which the United States was a signatory and which was ratified by the Senate in 1909. 36 Stat. 2279, 2295. The preamble to the Convention declares: [317 U.S. 1, 35] 'Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.'

Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who though combatants do not wear 'fixed and distinctive emblems'. And by Article 15 of the Articles of War Congress has made provision for their trial and punishment by military commission, according to 'the law of war'.

By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.

This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law12 that we think it must be regarded as [317 U.S. 1, 36] a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.

 

[S-Des]

that terrorists (disguised, concealed) like those of al Qaeda in the 9-11 events, do not qualify as 'prisoners of war', if caught. It is to such Prisoners of War that most the the Third Geneva convention applies.

I am not nearly as concerned with the law (which can always be bypassed by creative thinking administrations) than with the moral implications. I don't claim to have the answers, but I wonder if it helps our cause to have us appear to try and soften rules regarding torture.

Also, I've heard a number of professional interrogators say it's a poor method of extracting information. Right here there were a number of innocent people let out of jail after over a decade of imprisonment. All of them had confessed to crimes they were later proven innocent of. So I know that there is evidence that it doesn't work (at least sometimes). As an independent, I don't hate Bush, or think he's the devil. I also don't love him. In my opinion, he's made far too many mistakes and not even gone after things that Republicans have harped about ever since I've followed politics. In this instance, I wish his people would listen to the experts. Most of the ones I've heard say there are better methods of extracting information.

 

[Jagged]

These are terrorists the Geneva Convention never applied to them....The funniest thing I have heard is that if we torture prisoners the other side will. They already do!?!?! Let them rot until we win the war on terror no matter how long it takes. People have been released and go back to the fight. Also it should be noted that you can get the Geneva Convention oline for free and in many languages including Arabic. Why then do they not follow it? Oh wait they just behead American prisoners. That isn't torture is it? Why are so many of you concern for the welfare of evil people? Your giving them more rights then US citizens have who are in prisons. Keep up this behavior and we will lose this war and there will really be no freedom.

 

[Huckleman2000]

Jenny's right, this is a moot point to be arguing whether or not 'terrorists' captured by us have rights under the Geneva Conventions. The Supreme Court has already decided this in Hamdan vs. Rumsfeld. From the decision:

(d)
The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed Hamdan’s challengein this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62–
68.

(emphasis added)

Those of you arguing otherwise are, factually, wrong.

 

[Pure]

Huck, i don't think you are disagreeing with my points.

your quote says the circuit court said the 'Geneva Conventions' did not apply.

the SC was not persuaded. The GC did apply, IOW.

what i said was that the Third GC would not apply, say, to Moussaui, and that a concealed terrorist is not a 'prisoner of war.'

the Fourth GC arguably applies, Gonzales to the contrary. secret agents, sabateurs, etc. are belligerants who've done something criminal to aid the enemy, and per quirin as well (following internation conventions) go before military tribunals. this is not to say that the special tribunals set up be Bush would be adequate. lawyers for the armed forces have, several of them, spoken against the Bush set up.

 

[Huckleman2000]

Huck, i don't think you are disagreeing with my points.

your quote says the circuit court said the 'Geneva Conventions' did not apply.

the SC was not persuaded. The GC did apply, IOW.

what i said was that the Third GC would not apply, say, to Moussaui, and that a concealed terrorist is not a 'prisoner of war.'

the Fourth GC arguably applies, Gonzales to the contrary. secret agents, sabateurs, etc. are belligerants who've done something criminal to aid the enemy, and per quirin as well (following internation conventions) go before military tribunals. this is not to say that the special tribunals set up be Bush would be adequate. lawyers for the armed forces have, several of them, spoken against the Bush set up.

Right. Moussaui was apprehended in this country by law enforcement, so he's entitled to a trial and such, like any other accused criminal. If he were operating in a spy capacity, ie, for a foreign government, that might be different, and the GC may come into play.

I chose that passage to highlight because it specifically rebuffed the arguments accepted by the DC Circuit, that Hamdan was not entitled to GC protections.