February 17, 2006

Bullshit Hearsay Watch

Thomas Wilner, of Shearman, who is representing some Guantanamo detainees, summarizing the evidence against his clients: "Bullshit hearsay...The information in some cases is, at best, hearsay allegations [obtained] long after capture." You don't say? I can't say I'm surprised, frankly. And here's Mark Falkoff of Covington's New York office: "It's the Salem witchcraft trials. You get one guy to start making accusations, and whether it's believable or not doesn't matter." These are serious lawyers, from top firms. They don't need to showboat for pro bono glory, and wouldn't waste their time doing so.

A few years back, I would have been more skeptical of these appraisals re: some of the detainees at Gitmo. I would have had more faith that, per Rummy, all the guys there were really the worst mofos of the bunch--you know, UBL's bodyguards, the 20th hijacker, just the worst scum of the earth. The lot of them! Well, after Katrina, and Harriet Miers, and Dick "last throes" Cheney, and many other mishaps besides--I've lost a lot of faith in our titular 'leaders'. And on this issue, keeping Gitmo open for a long while yet as appears the game-plan, they're dead wrong.

Guantanamo will be viewed by historians, when it's finally closed (it will be, I predict, at some point during the next Administration, whether Republican or Democratic--unless a mediocrity like George Allen or Bill Frist wins), as a misguided excess born of national trauma/panic post 9/11. Gitmo-approved tactics that 'worked' under controlled circumstances--with good guard to detainee ratios and such--led to the worst abuses by the US military since My Lai when they 'migrated' to Afghanistan and Iraq. Regardless, the tactics employed at Guantanamo itself (many personally approved by Don Rumsfeld) were morally reprehensible. Indeed, the UN Commission on Human Rights concluded, in a report released today, that interrogation tactics were often not consistent with "safe, legal, ethical and effective interrogations, and they have adversely affected the mental health of detainees" (cue a court syncophant commenter informing us Zimbabwe and Syria and others have served as leads on the Commission! And bonus points for a Christina Aguillera, Eminem or Rage Against the Machine snide aside, especially if A/C is mentioned!). Yes, the images of shackled detainees being wheel-barrowed around in orange jumpsuits amidst razor-wire cages have soiled America's reputation--despite the location in the "tropics", alas (Dick Cheney's memorable word)-- and placed our position as avatar of human rights on the world stage at real risk. To be sure, Europeans and others are often hypocritical in the extreme when they criticize the abuses of Guantanamo, as they've often delved into their own human rights abuses aplenty (France in Algeria, anyone?) But, put simply, the cost and benefits are all wrong on this one. There's a better way forward, and I'll be sketching it in the coming days. For now, suffice it to say I view protestations about Guantanamo being critical to our national security--so that it remains open into quasi-perpetuity--as unconvincing in the extreme. As bullshit, you might say.

Posted by Gregory at February 17, 2006 03:56 AM | TrackBack (1)
Comments

"Guantanamo will be viewed by historians, when it's finally closed ..., as a misguided excess born of national trauma/panic post 9/11."

Funny, the same thing will be said about the Bush administration. Although there's no need to wait for historians.

Posted by: flitter at February 17, 2006 12:49 PM | Permalink to this comment Permalink

As can be seen from the Seton Hall report (pdf), the government has known from the very beginning that it was not holding the worst of the worst.

There is still time, Mr. D., to join Wilner, Falkoff and the rest in the Guantanamo Bay Bar Association. And there are prisoners looking for lawyers.

Posted by: CharleyCarp at February 17, 2006 01:23 PM | Permalink to this comment Permalink

Four years ago I thought the administration went seriously astray in devising a judicial process based on military tribunals, rather than use these as part of an administrative process to separate the genuine terrorists from Afgahn foot soldiers, detainees held in error and others who posed no real threat to American lives and interests.

I assumed at the time that there would be a substantial number of detainees who fell into the latter categories, and worried that the path of least bureaucratic resistance -- holding people once taken prisoner unless it could be proven they were not terrorists -- would take over unless a different path was built. It seemed to me that the path of least resistance had significant political costs in Afghanistan and elsewhere, quite apart from the injustice done in holding people who posed little threat to us.

It may be -- it probably was the case -- that military tribunals were devised to address pressure coming from within the government for some means of trying and punishing people found guilty of crimes as well as a perceived public relations emergency involving that subject, and were put on ice once the pressure abated. There use as an administrative or processing mechanism may never have been considered within the administration. In any event, the path of least bureaucratic resistance does seem to have been the one taken in many cases. How many? I don't know, and certainly hope it is not as many as some reports are now suggesting. I had hoped and assumed that the 2001 and early 2002 operations in Afghanistan had at least resulted in the apprehension of a substantial number of al Qaeda types, and that assumption is consistent with al Qaeda's failure to attempt further operations on the scale of 9/11 or even the Cole bombing.

But it is still only an assumption, and if it is wrong we will have to deal with the consequences.

Posted by: Zathras at February 17, 2006 04:27 PM | Permalink to this comment Permalink

While I am sure that the treatement of prisoners wasn't like one of the swanky federal prisons that convicted politicians end up in, I also bet it is not like the gulag which the UN Commission on Human Rights. Especially when one considers the provenance of the information found there-in. They authors of the reports declined to go to Gitmo and see anything first hand and in fact have relied for information about the condition of prisoners upon anecdotes provided by released detainees and family members and lawyers of those who are or have been detained from France, Spain, and Britain.

Posted by: duane at February 17, 2006 05:25 PM | Permalink to this comment Permalink

Gregory: "To be sure, Europeans and others are often hypocritical in the extreme when they criticize the abuses of Guantanamo, as they've often delved into their own human rights abuses aplenty (France in Algeria, anyone?)".

A wise man might say that many of these European countries are talking to us from experience. Much of which they regret. An analogy might be if, thirty years from now, the US is advising another country on how to handle terrorism - should that country dismiss the advice, by pointing out Gitmo?

Posted by: Barry at February 17, 2006 08:07 PM | Permalink to this comment Permalink

An article from the Telegraph:
Trapped in a legal no-man's land
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/02/17/wguan17.xml&sSheet=/portal/2006/02/17/ixportaltop.html

Read the whole thing.

Posted by: Kevin P. at February 17, 2006 09:04 PM | Permalink to this comment Permalink

Thanks for this piece and the articles you linked to. Your commentary is the best that I have read concerning the Gitmo Mess. You are right that 3 or 4 years ago most people would believe what Rumsfeld and others in the Administration said concerning the detainiees. No longer, more & more people are realizing this Administration is incompetent and lying through their teeth. Most people do realize that Al Queda, Iran, etec. continue to be threats. They just do not trust this Administration to respond compently to these threats and to be truthful in what they they say about them.

Posted by: David All at February 17, 2006 10:51 PM | Permalink to this comment Permalink

Duane -

IIRC, the UN Commission was going to go to Gittmo, but they were told they would not be allowed contact with the prisoners. They therefore declined to go. International Committee for the Red Cross has been there, and described Gittmo as "intentional system of cruel, unusual and degrading treatment and a form of torture."

Posted by: Ugh at February 17, 2006 11:48 PM | Permalink to this comment Permalink

In paragraph 24 of the report, the UN says that although there are ongoing combat operations, the combat operations are not between states, and therefore activities which are proper in a war between states, i.e detention until the war is over, are no longer permissable.

Does this mean that the war against terror must be a catch and release war?

Or does it mean that the UN does not consider the war against terror a war?

The report is filled with weasel words, particularly the artful wording of the explanation the authors gave for not visiting Guantanamo.

these UNocrats basically said to the USA: "If you do not let us do everything we want to do, precisely as we want to do it, we will smear you." And that is what they have done.

Since when is keeping hunger strikers alive by force feeding them considered torture? Only when you would rather see people die! ANd that is what the UNocrats apparently want. They are shamelessly anti-american, as is the report.

The report is not credible.

Posted by: rich at February 18, 2006 12:12 AM | Permalink to this comment Permalink

Bullshit hearsay could be used to describe the allegations against the U.S. as well. They only gain credence through the wide-eyed acceptance of the claims by many of naive good will -- and those of ill will.

I don't share your viewpoint at all.

Posted by: Anne at February 18, 2006 11:34 PM | Permalink to this comment Permalink

You run together two issues: the detainment of individuals and their treatment while detained. Even if none of the abuses had taken place, we would still need somewhere to hold at least some people. If you're "way forward" is to just move everybody into the ordinary criminary justice system and release anyone who doesn't meet domestic standards of evidence, I think you're naive to the difficulties of applying those to war and intelligence operations abroad. The option of "closing Gitmo" without a replacement will just lead to even more ghost prisons across the world and more reliance on dictatorships as our jailers. We'd be better off with a reformed Gitmo with better hearing procedures that still necessarily fall short of a domestic trial. At least then the inevitable detainment of individuals in the future will be out in the open, not driven underground.

Posted by: rd at February 19, 2006 04:58 AM | Permalink to this comment Permalink

RD, there's something to what you say.

I want to tell a short story that shows an underlying point you could have made but didn't.

The guy who wrote Midnight Express claimed the following happened: He was in a turkish jail for drug offenses. It was about time for him to be out but somehow the turks kept shaking his father down for more money, there were repeated delays and expenses, and finally he decided it would be quicker and cheaper to escape. He crossed the border into greece, where the greek army detained him.

They told him that he had unwittingly crossed one or more minefields in the night. They started to interrogate him in great detail about precisely what he'd seen of the turkish defenses. After a rather long time of that he felt that enough was enough and he wanted to go home, he stopped cooperating with them. They weren't treating him badly, but it was kind of like being in prison. And his interrogator pointed out that nobody knew where he was. He thought it over and did everything they wanted. Eventually they let him go.

The central point here is that "evidence" is not important in these cases. It doesn't matter whether you've done something that counts as a crime. What matters is whether it looks useful to keep you. If you might know something useful, why should an army -- any army -- let you go? They will not quit interrogating you until they're sure you're sucked dry. Once they're sure you're no longer useful, then they must choose whether to let you go or kill you.

So for example, an educated afghan in the back country is worth detaining. It doesn't matter whether he's al Qaeda, he's likely to have an interesting story to tell. Guilt or innocence is irrelevant -- until the story is all told and it's time to decide whether the person can be safely released. Even then it isn't exactly a question of guilt, it's a question whether the person is *safe*. If you've turned him into an enemy then isn't it best to kill him now rather than wait for him to do something overt and catch him again?

Hearing procedures at Gitmo are irrelevant. The criminal justice system is irrelevant. When we consider ourselves to be at war we'll do whatever looks like it's good for the nation with no regard whatsoever to legality -- except as legality affects the war effort. And if some procedure looks useful but civilians would complain about it, then better to just not tell them about it. If all the surviving witnesses are on your side, then there's no problem.

The USA might behave according to a higher standard. When we have air superiority, and armor, better weapons all round, ten billion dollars a month to spend, do we really need to act like the poor greek army? Maybe we don't. But that kind of argument is easier to make when we're winning. When we're winning we can afford to be the good guys, even if it costs a little more. Even if we might (or might not) take a few more casualties because we refuse to be the bad guys. But we're losing. And when you're losing you do whatever you think might change it around. We can't afford to be nice guys when we're losing. So we're going to do everything we can think of, including things that don't work. Airstrikes on cities. Maybe poison gas or biological weapons. Maybe nukes. Anything that might let us win.

We won't pull out until we've done everything we can think of, and nothing works.

The only solution I can see is to be careful never to get into a war we can't win easily.

Posted by: J Thomas at February 19, 2006 12:09 PM | Permalink to this comment Permalink

Whoops!

You want a do-over?

Oh right, the gummint would say that.

And hey, they supposedly screwed the pooch on Katrina, so now we can't trust them on anything, eh.

Posted by: Jim in Chicago at February 21, 2006 06:46 AM | Permalink to this comment Permalink

Jim, I didn't understand your point. Could you maybe repeat it in different words?

Is there any conceivable reason to trust what a government says in wartime, about the war effort?

We make a big deal about catching people who were "innocent". But in wartime, in a war zone, isn't it more important to catch the bad guys than to make sure you don't catch any neutrals? Isn't it obvious that the thing to do is get everybody who might have useful information, and get the information, and then wait to decide what to do with them later?

Posted by: J Thomas at February 21, 2006 05:03 PM | Permalink to this comment Permalink

Greg:


I voted for Al Gore in 2000. I voted write in in 2004. I expect to vote for Hillary Clinton, or Evan Bayh, or Mark Warner in 2008. I dont think Im an admin sycophant.

And i have a problem treating the UN Commission on Human Rights as a credible source.

Posted by: liberalhawk at February 21, 2006 05:50 PM | Permalink to this comment Permalink

Greg--
I thought you had more intellectual honesty than that. You cite the UN Spec Rap report as criticism against the US in GTMO when they didn't even visit? I could write a really critical report of something too, if I only talked to those who disagreed with the policy and believed all those who had their own self-interest to promote in saying anything negative, and I had no way of verifying the accuracy of their claims. Oh yeah, that's really credible.

I just wish people who want to discuss GTMO would actually read the Geneva Conventions and find out that these terrorists are NOT POWs, they have violated all the standard "rules of war." The US has the right to detain them as long as hostilities continue -- just as we did German spies, including US citizens, during WWII. The necessity detaining them 'for the duration' is clear since a number of GTMO releasees have already returned to the battlefield to fight against the US again.

Of course it's ugly. War is ugly. Terrorism is even uglier.
GTMO is not a summer camp, but it's a lot closer to summer camp than the conditions western hostages face.

And by the way, when did air conditioning become a human right? I feel like I must be caught in a Sat Nite Live skit. "Exposure to extreme temperatures" is always cited as one of the inhumane conditions at GTMO. (Hint-- most of these people live in the desert.) It's kind of hard to take these critics seriously when they don't seem to understand even the basics of geography, climate and culture.

Delilah

Posted by: Delilah at February 21, 2006 06:55 PM | Permalink to this comment Permalink

Liberalhawk, if they were the only negative report on Gitmo, you might have a point. But as was observed upthread, they ain't.

Posted by: Anderson at February 21, 2006 09:04 PM | Permalink to this comment Permalink

Delilah, the conditions at Gitmo were bad enough that U.S. Navy officers went to their general counsel and said they DIDN'T EVEN WANT TO BE POSTED AT THE SAME BASE where such things were happening.

Read Jane Mayer & get back to us, okay?

Posted by: Anderson at February 21, 2006 09:06 PM | Permalink to this comment Permalink

Delilah, you are being very very silly.

If Saddam had told the WMD inspectors, "Come on over, I'll give you a special tour, I'll show you everything I want you to see", would they have bothered to show up? Whatever for? And then if they published a disapproving report based on the best data they could get, would you blame them for not taking Saddam's special tour?

I just wish people who want to discuss GTMO would actually read the Geneva Conventions and find out that these terrorists are NOT POWs, they have violated all the standard "rules of war."

According to the Geneva conditions, Part III Section 44-4

4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.

If he broke the rules then you can give him a fair trial and kill him. But apart from that you're supposed to treat him just like a POW.

Now look at Article 45-3

3. Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, an such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.

So if he's a spy you can hang him after a fair trial. But you have to give him all the other rights until then.

Now try Article 75-3

3. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

This says if you aren't charging him with a crime, you have to release him as soon as possilble -- not just sometime after the war is over.

We have been violating these standards left and right. We have held a lot of people with no charges. We have denied them communication when they were not charged as spies. And all the special interrogation stuff violates the GC. Just because you think they're terrorists doesn't give you the legal right to torture them. Even if they really are terrorists. The rule is, if the other side breaks the rules that doesn't give you the right to break the rules.

Incidentally, we aren't officially engaged in a War on Terror, much less a permanent WoT. We have no mechanism to accept a surrender by al Qaeda, and no way for the "war" to end.

HTH

Posted by: J Thomas at February 21, 2006 09:56 PM | Permalink to this comment Permalink

J. Thomas. I was mocking. I agree with what you said at the end of your reply to me.

OTOH, your reply to Delilah does not seem to jibe with what your reply to me said. Are you the same person?

In re your reply to Delilah:

First, define torture. Is sleep deprivation, extremes of heat/cold, loud music really torture? To say it is, aren't you defining torture down.

Second, are you really comfortable with treating these several hundred men as if they were POWS? With all their rights?

Name, rank and serial number and all that. No? Am I wrong in believing that's all a detainee in war is required to give?

I'm sorry is some innocents got swept up. But we've been releasing folks from Gitmo for years once we realized they didn't have info. In fact, many of these guys were later re-captured doing naughty things.

I'll be honest, I look forward to Greg's alternative to Gitmo. But this post seems a heaping pile.

And yes, I've looked at the NY'er piece. It seems more of the same.

Do you think the Gitmo folks are lying in the DT article I posted?

Bottom line, who do you trust. Some detainees and their hotshot international lawyers or the US gvt.

Sorry, I'm still going with the latter.

Posted by: Jim in Chicago at February 22, 2006 01:48 AM | Permalink to this comment Permalink

Jim, I'm home sick with a sinus infection and I can't sleep, so this may be too long.

Delilah was trying to say that what we're doing isn't war crimes under the Geneva Conventions. Well, they are.

That leaves aside the question whether we have to break the Geneva Conventions. If it's a choice between doing war crimes or seeing this country destroyed, I say do war crimes. But I very much hope that we won't ever face that choice, and I don't think we're facing it now.

If the question is whether it's an official war crime, for that it doesn't have to be defined as torture. What we're doing is a war crime whether we define torture up so it doesn't fit, and whether or not the victims are considered POWs or civilians, and whether or not they violated the geneva conventions first.

Luckily, we are the only superpower and as long as we remain a superpower nobody can really call us on it.

Second, are you really comfortable with treating these several hundred men as if they were POWS? With all their rights?

First off, we don't know how many victims it is. It may be thousands. It could possibly be tens of thousands. My best estimate from what I've seen so far is somewhere in the low thousands, plus the ones in iraq and afghanistan. But that's a rough estimate. We don't know what's going on, our government is doing wartime censorship.

I get to nooge on comfort because I believe well-trained interrogators can get valid information quicker without bad treatment.

Think witch-hunt. The witch-hunters would go into a community and find some old woman nobody liked, and they'd torture her until she implicated somebody else. They'd burn her and then they'd torture the others until they implicated more. They could burn half a town as witches because people who were falsely accused would falsely accuse others under torture.

When we chase down false leads it's a waste of resources.

But I doubt you agree, you probably think that the abuse is necessary to get good information. So let's suppose you're right, and see where that goes.

If we didn't get information from them, they'd still be caught, so that's something. We could do standard police methods to catch more. Some of those methods work better the more of their circle of acquaintances disapprove. Like, "Dammit, he's running a bomb factory, he's likely to blow up the neighborhood" and they call the police. That's less likely to happen when the thinking is "Damn, that bomb factory is dangerous. But it's for a good cause." Every neighborhood has lots of snoopy civilians watching the suspicious things people do. But they'll only call the authorities if they disapprove of the bad guys more than they disapprove of the authorities. When they hear that we torture suspects, they're less likely to turn them in. So if we're going to abuse suspects, by God we have to keep it secret! Which we have failed to do.

This sets us back far more than the valid info we might get from some of the suspects is worth.

It's incompetence. We should have kept it secret, or else known we couldn't keep it secret and not done it. Incompetent either way.

And now the best we could do to repair the damage is reveal what we've done (except for whatever we're absolutely sure we can still hide), and apologise, and promise we'll never do it again. And then only do it again if we're absolutely sure we can keep it secret this time.

Bottom line, who do you trust. Some detainees and their hotshot international lawyers or the US gvt.

I don't trust the Bush administration to work in the best interest of the USA. If they were lying to us a little bit for our own good, then, well, OK. But I don't believe that. I think they first figure out what we want to hear and then tell us that, with minimal consideration for facts. But you have the perfect right to trust them if you want to.

In the general case I'd never trust the US government to tell the truth in wartime. They think it's more important that they fool the enemy than that they inform the public. This of course means we don't have meaningful democracy during wartime. We don't know what the govenrment's doing so we can't very well choose whether we approve. So I dislike getting into a forever war against an enemy who cannot surrender. I mean, al Qaeda is a franchise. Anybody can start up a group and say they're al Qaeda. We're going to be shadow-boxing them until china is a big threat.

I don't think the terrorist threat is big enough to dismantle America for. And that's what's happening.

Posted by: J Thomas at February 22, 2006 11:22 AM | Permalink to this comment Permalink

[This is the critical part of the argument -- who are these people? Are they POWs? Are they protected under the GCs? Terrorists/illegal combattants clearly do not fall under any of the categories below, therefore are NOT POWs, and do not fall under the Geneva Conventions.]

3rd Geneva Convention
Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the 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.

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.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

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.

[The biggest argument is because the Geneva Conventions do not specify what a "competent tribunal" is. ]

Additional Protocol I

[which the US has NOT ratified, so claiming we are violating all these provisions is incorrect. By definition, and according to the most basic principles of international law, a state cannot be bound by a treaty to which it is not a Party. Same point applies to the US position on the International Criminal Court, where the "international community" is trying to impose extraterritorial jurisdiction on the US and make the US comply with terms of a treaty the US did not and has no intention of ratifying.]

Article 43.-Armed forces
1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

Delilah

Posted by: Delilah at February 22, 2006 06:56 PM | Permalink to this comment Permalink

Delilah, let's look at who we're talking about. The Geneva Conventions are about warfare and occupation. So questions about whether the GC applies are questions about iraqis or afghans or people detained in iraq or afghanistan.

If you detain a citizen of a country you aren't at war with, and you catch him in a country you aren't at war with, the geneva conventions don't apply at all.

So for example, if say the government of Canada told us, "Hey, we like you, so go ahead and kidnap as many of our citizens as you like, smuggle them out of Canada, torture them if you want, kill them when you're done, we don't mind!" then it doesn't matter that those would be war crimes under the Geneva Conventions. It's a matter between the government of the USA and the government of canada. There could be human rights issues, and torture issues, but not Geneva Conventions issues.

If we kidnap canadians and smuggle them out of canada and we don't tell the canadian government, that's dirty pool and they might have strong objections when they do find out (or they might rather pretend they didn't know). We're supposed to tell them what we do to their citizens. And if they don't like it they can express their objections in various ways. That's part of having normal diplomatic relations with nations we aren't at war with.

So when we catch international terrorists who have forged passports, in a nation we aren't at war with or on (or over) the high seas, then no, the Geneva Conventions don't apply. It's iraq and afghanistan where we're doing war crimes. Those are the places we're waging war. If you're talking only about terrorists from countries we aren't at war with, then for those people you're right.

For iraqis or afghans, it makes no sense to argue about whether they're POWs or not. The difference between how you're supposed to treat POWs and how you treat non-POWs is that POWs get to keep their insignia medals and such, and POW officers only have to salute enemy officers of higher rank, and things like that. But all the things that matter to current discussions apply to all. You aren't allowed to torture non-POWs for information etc etc etc.

...which the US has NOT ratified, so claiming we are violating all these provisions is incorrect.

Are you arguing that it isn't a war crime because we never promised we wouldn't do it? How droll. We can't be charged by the ICC for war crimes we didn't promise we wouldn't do. That's very different from saying it isn't a war crime at all. And we don't recognise the right of the ICC to charge us with war crimes under the treaties we did sign.

Really, it's all kind of an academic exercise. As long as we're the only superpower we can do whatever war crimes we like and nobody can stop us. We can even claim they aren't war crimes and all the rest of the world can do about it is disagree.


Posted by: J Thomas at February 23, 2006 06:02 PM | Permalink to this comment Permalink

About Belgravia Dispatch

Gregory Djerejian comments intermittently on global politics, finance & diplomacy at this site. The views expressed herein are solely his own and do not represent those of any organization.


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