After readin Leigh Sales' DETAINEE OO2: THE CASE OF DAVID HICKS, detailing the entire saga of the Australian Taliban during his incarceration at Guantanamo & the complex Geneva Convention-defying procedures under the US Military Commission system- WI the Bush admin had actually decided not to say that the Geneva Conventions were quaint in waging the War on Terror, & decided to afford these detainees the relevant rights under the laws of war ? WI then there was no Guantanamo & no Military Commissions ?
No Military Commission system- Bush admin decides to play by Geneva Conventions
- Thread starter Melvin Loh
- Start date
That's assuming that the Taliban and AQ meet the requirements for POW status: 1) Wearing uniforms or having a symbol on their clothing; 2) Under a leader responsible for subordinates; 3) carrying weapons openly; and 4) fighting according to the laws and customs of war: and the Taliban or AQ don't meet any of those criteria. But, if POW status had been so decided, captured Taliban and AQ get tried under the Uniform Code of Military Justice (UCMJ) and are tried by a general court-martial for their misdeeds.
Also (5) - have signed up to the Geneva Accords (which they hadn't). otherwise, yes - given the failure of the Taliban/AQ to abide by the conventions themselves, the conventions allowed the Americans to do pretty much what they wanted to the prisoners, up to and including a bullet in the back of the head. The system as adopted was actual a considerable improvement.
As already pointed out the Talibans don't qualify for the Geneva convention.
Also, the Geneva convention allows keeping POWs in jail for the duration of the war - and the War on Terror seems to keep going until 2015 or something.
My guess is that very few things would change. Media and relatives would complain about keeping Talibans and suspected supporters in jail, no matter the legal basis for that.
Dure
Banned
Says who exactly? Just because the USA says the Talibani fighters 'do not qualify for [the protections of] the Geneva Convention[s and Protocols]' frankly does not mean jack. Have the ICRCC decided that the Taliban are not covered? Have the Swiss Foreign Ministry decided that the Taliban are not covered? Have the high contracting powers acting as a body decided that the Taliban are not covered by the Geneva Conventions and Protocols?
No? Thought not. Bottom line, everyone is covered by the Conventions and Protocols either as combatants or civilians. If they are not in the first category they are in the second. What we have is a nation which is prima facie committing war crimes clutching at a fig leaf of leagality and claiming that because THEY don't think that the Taliban were covered by the Geneva Conventions and protocols they are not covered by the Geneva conventions and protocols.
US position is completely indefensible, just a moments consideration would lead one to the conclusion that the Taliban are combatants and that active members of AQ are civilians and can be tried for any crimes they have committed.
International law would not, does not permit the USA to behave in the way it has done at Guantanamo Bay. If they are not combatants they are civilians. Civilians can be tried and punished for crimes, such as killing combatants unlawfully in the appropriate civilian or indeed any properly constituted court which of course the ones at Guantanamo are not.
Oh look, Dure's going on another insane and ridiculously biased anti-American rant 
As other people have pointed out, the Geneva Convention only applies to people who have signed the convention and fulfilled its requirements.
As other people have pointed out, the Geneva Convention only applies to people who have signed the convention and fulfilled its requirements.
well, dude, the GCs are actually the ONLY international treaty which ALL countries in the world have signed- anyways, even if the Taliban or AQ guys aren't lawful combatants, they'd still be covered by Art. 3 common to all the GCs & Additional Protocols- which arguably weren't met at all by the Bush admin's Gitmo Military Commission system...
Hendryk
Banned
Have I been ISOTed back to 2004? Why do I still see such disingenuous claims made in all seriousness? They were dishonest back then and they are even more so with the benefit of hindsight.
This is alternate history all right, but not the good kind. Someone move this thread to Chat, if more such claims are going to be made in it.
True, Common Article 3 does apply; my response was in regards to POW status and the Geneva Convention.
While Afghanistan has signed and ratified the Geneva Convention in the past, it is certainly questionable whether the Taliban inherited the previous Afghan government's treaty obligations. Normally that sort of thing is automatic once a new and recognized government comes to power, but the situation with the Taliban is far from normal. What is the normal situation for handling treaty obligations of states in the midst of civil wars anyway?
Dure
Banned
1) You never signed the Geneva Conventions and Protocols, the nation which represents/claims you signed on your behalf.
2) Nations that have signed are required to treat the nationals of any nations that have not signed as if they had.
Is it anti-American to point out that there is a prima facie case for war crimes against the USA for what it has done and is doing at Guantanamo bay?
What element is it in my original post that you think is insane Chengar Qordath? Is it perhaps simply that you disagree with me and are either too lazy or too arrogant or too ignorant to disagree with what I have written and so you resort to unsupported lables?
Don't the laws of war permit the killing of combatants not in uniform?
IIRC it's done for spies.
If that is the case, putting them in Gitmo is merciful.
Since you are calling him a liar, it's your job to prove it.
You may be right in that the legal reasoning is bad, but you accused him of dishonesty, not just being wrong.
Dure
Banned
A large part of legality is about the process followed, so, killing - no, properly constituted trial followed by execution - yes. The fact that kidnapping followed by unlawful imprisonment in Guantanamo Bay as opposed to killing someone, might by some be considered the more merciful act by some, though a great many campaigners for the death penalty would disagree, is not an excuse for prima facie war crimes by the party doing the kidnapping and imprisonment.
Now I'll play the other side...
Even if Taliban/AQ are not protected under the Geneva Convention, IIRC that would apply only to those taken under arms.
Many of the inmates of Gitmo are people who were arrested in a more conventional fashion, with some even having kidnapped and "sold" to the CIA for $500 each.
And then you've got Jose Padilla, an American citizen, who was arrested getting off an airplane and held incommunicado for over a year. THAT is something to be feared.
Not giving the Taliban/AQ GC status, even if it was justified (debatable), set a bad precedent that could be used to simply make people "disappear."
So, getting back to the actual AH...
No Gitmo means Jose Padilla doesn't get "disappeared," which could affect American electoral politics, as this became an issue.
Even if Taliban/AQ are not protected under the Geneva Convention, IIRC that would apply only to those taken under arms.
Many of the inmates of Gitmo are people who were arrested in a more conventional fashion, with some even having kidnapped and "sold" to the CIA for $500 each.
And then you've got Jose Padilla, an American citizen, who was arrested getting off an airplane and held incommunicado for over a year. THAT is something to be feared.
Not giving the Taliban/AQ GC status, even if it was justified (debatable), set a bad precedent that could be used to simply make people "disappear."
So, getting back to the actual AH...
No Gitmo means Jose Padilla doesn't get "disappeared," which could affect American electoral politics, as this became an issue.
I was under the impression that imprisonment in Gitmo was the prelude to a military tribunal, and the tribunals themselves were also attacked by the anti-Gitmo crowd.
leaving aside the legality and morality of the methods in Gitmo, the OP is kinda hard to answer without knowing one basic fact: did the less than savory methods used at Gitmo produce any useful information that a kinder and gentler approach would not have? I doubt any of us here is in a position to know that, so the OP is impossible to answer, so far as the actual affects on the WoT is concerned. On the political front, it would have been positive, of course, with no international complaints about the detainees...
If the Army had had its way, the issue might have been more controllable; as prisoners were brought into Bagram, each one gets an Article 5 hearing "before a competent tribunal" (now Geneva doesn't define that, so it could just be a board of officers from the detaining power called to form such a tribunal) to determine their status. Those determined to be POWs could have been held in a POW stockade at Bagram, while those not determined to be POWs could then be classified as unlawful combatants, francs-tieurs, take your pick, and sent to Gitmo. The political appointees in DOD at the time said "No, Geneva doesn't apply to the Taliban and Al-Qaida, period." At the very least, if the Army had gotten its way, then some of the claims about "no hearing" that the usual suspects (Amnesty International, Human Rights Watch, etc.) keep wailing about would have had no merit.
It isn't always the case. A civilian can pick up a rifle and defend their home (broadly defined) and be considered a lawful combatant, if they obey certain rules. They have to follow the rules of the Geneva convention themselves, and (at the first possible convenience) create an identifying mark of some sort. The convenience part is subjective though.
There are also provisions for "false flag operations" where a combatant doesn't have to identify themselves as affiliated with their particular group until combat starts. You can't pretend to be a noncombatant, member of the Red Cross, UN official, wounded, a neutral nation, or attempting a truce.
Basically, if you say you're a soldier and follow the rules like a soldier, you have to be treated as one.
As for the legality of Al Queda or the Taliban or whomever being covered by the Geneva conventions: I don't care. I think my country has a moral obligation to treat them as either POWs or actual criminals deserving a trial.
Definition of Lawful Combatants
Article 4 of the 1949 Geneva Convention sets out the following categories of lawful combatants:
Article 4 of the 1949 Geneva Convention sets out the following categories of lawful combatants:
- Members of regular militaries and police forces (in uniform.)
- Civilians authorized to accompany military forces.
- Merchant sailors.
- Civil aircrews.
- Populations who spontaneously rise en masse to defend their homes from an invading army, either by attaching themselves to regular military forces or forming an ad hoc militia, provided they generally obey the laws of war.
- Members of militia, guerrilla, and resistance groups who (a) are commanded by a responsible individual who's accountable for the conduct of his subordinates; (b) wear a distinctive sign recognizable at a distance; (c) carry arms openly; and (d) generally obey the laws of war.