Re: Gitmo bay and the Geneva Convention:
No it says one of the categories and lists 4. 2D is independent of 1 and 3.
You want more classes in reading legal texts? I can give them to you for free.
Re: Gitmo bay and the Geneva Convention:
So you are essentially arguing that Al Qaeda joined the "members of militias or volunteer corps forming part of such armed forces"? That means of course that they would be fully inducted into the Army of Afghanistan, wore the uniform of the Afghan army, and were commanded by an Afghan Army commander. That is that they were fully integrated into the army of Afghanistan.
Sorry, doesn't float. There is not a fact in the world that supports that.
Re: Gitmo bay and the Geneva Convention:
Yes they are. Learn to read.
Re: Gitmo bay and the Geneva Convention:
Article 2
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties there to shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, **if the latter accepts and applies the provisions thereof.**
CM, what school system in which mega city did you get your classes in reading legal texts?
Article 2 speaks of protection for combatants that are not currently parties (signees) to the Convention. Protection is mandated if the* latter accepts and applies the provisions thereof.*(see Article 4).
Re: Gitmo bay and the Geneva Convention:
Again you can not read legal texts. It says armed forces of parties to a conflict. What does that mean to you?
Re: Gitmo bay and the Geneva Convention:
OG, isn't that what the "enemy" does, not abide by the laws and customs of war... they break the rules?...
so, okay, you wanna throw a tantrum and hurl the rule book out the window too... they don't follow the rules, you don't follow the rules... we end up with the same morons on both sides... you win Homer you have shown us the light of your warped logic
"nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations"
the Charter sets out to...
"reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small"
Re: Gitmo bay and the Geneva Convention:
^ Parties to the Convention, not the conflcit.
Re: Gitmo bay and the Geneva Convention:
What utter bull ****.
Show me where that article makes that distinction?
Re: Gitmo bay and the Geneva Convention:
I personally like this article a lot:
Geneva Convention isn't the last word
Robert J. Delahunty, John C. Yoo
Wednesday, February 2, 2005
When the Senate considers Alberto R. Gonzales' nomination for attorney general this week, his critics will repeat the accusation that he opened the door to the abuse of al Qaeda, Afghan and Iraqi prisoners. As Justice Department attorneys in January 2002, we wrote the memos advising that the Geneva Convention on prisoners of war did not apply to the war against al Qaeda, and that the Taliban lost POW privileges by violating the laws of war. Later that month, Gonzales similarly advised (and President Bush ordered) that terrorists and fighters captured in Afghanistan receive humane treatment, but not legal status as POWs.
"Human rights" advocates have resorted to hyperbole and distortion to attack the administration's policy. One writer even went so far as to compare it to Nazi atrocities. Such absurd claims betray the real weaknesses in the position taken by Gonzales' critics. They obscure a basic and immediate question facing the United States: how to adapt to the decline of nation- states as the primary enemy in war.
The Geneva Convention is not obsolete -- nor, despite his critics, did Gonzales say it was. It protects innocent civilians by restricting the use of violence to combatants, and in turn give soldiers protections for obeying the rules of war. Although enemy combatants may have killed soldiers or destroyed property, they are not treated as accused criminals. Instead, nations may detain POWs until the end of hostilities to prevent them from returning to combat.
The Geneva Convention provisions make sense when war involves nation- states -- if, say, hostilities broke out between India and Pakistan, or China and Taiwan. But to pretend that the Geneva Convention applies to Al Qaeda, a non-state actor that targets civilians and disregards other laws of war, denies the reality of dramatic changes in the international system.
Shortly after World War II, nations ratified the Geneva Convention in order to mitigate the cruelty and horror of wars between the large mechanized armies that had laid waste to Europe. Now, the main challenges to peace do not arise from the threat of conflict between large national armies, but from terrorist organizations and rogue nations.
To believe that the Geneva Convention should apply jot-and-tittle to such enemies reminds us of the first generals of the Civil War, who thought that the niceties that were ideals of Napoleonic warfare could be applied to battles fought by massive armies, armed with ever more advanced weapons and aided by civilian-run mass-production factories and industry. War changes, and the laws of war must change with them.
Nations have powerful incentives to comply with the laws of war contained in the Geneva Convention. A United States or a Germany will care for captured prisoners, because any ill treatment could trigger retaliation against its own soldiers.
A nation will be concerned with public opinion, both to maintain popular support for its war effort and to keep its allies. Nations have leaderships that can be held accountable, either legally or politically, after the war. Nations have military and civilian bureaucracies that interpret and follow uniform standards of treatment.
Unfortunately, multinational terrorist groups have joined nations on the stage of war. They operate without regard to borders and observe no distinction between combatants and civilians. Our weapons for controlling hostile states don't work well against decentralized networks of suicidal operatives, with no citizens or borders to defend.
The problem of terrorist groups has been compounded by the emergence of pseudo-states. Pseudo-states often have neither the will nor the means to obey the Geneva Convention. Somalia and Afghanistan were arguably pseudo-states; Iraq under Saddam Hussein was another.
Pseudo-states control areas and populations subject to personal, clan or tribal rule. A leader supported by a small clique (like Hussein and his associates from Tikrit) or a tribal faction (like the Pashtuns in Afghanistan) rule. Political institutions are weak or nonexistent. Loyalties depend on personal relationships with tribal chiefs, sheiks or warlords, rather than allegiance to the nation.
Quasi-political bodies such as the Iraqi Baathist Party, the Taliban or even the Saudi royal family exercise government power. Defeat of the "national" leader or clique typically results in the complete disintegration of the regime.
Multinational terrorist groups and pseudo-states pose a deep problem for treaty-based warfare. Terrorists thrive on killing civilians and flouting conventional rules of war. Leaders like Hussein and the Taliban's Mullah Mohammed Omar ignore the fates of their captured soldiers. They have nothing riding on the humane treatment of American prisoners.
A treaty like the Geneva Convention makes perfect sense when it binds genuine nations that can reciprocate humane treatment of prisoners. Its existence and its benefits even argue for the kind of nation-building that uses U.S. troops and other kinds of pressures in places like Somalia, Afghanistan and Iraq; more nation-states make all of us safer. But the Geneva Convention makes little sense when applied to a terrorist group or a pseudo- state. If we must fight these kinds of enemies, we must create a new set of rules.
In that important respect, the Geneva Convention will become increasingly obsolete. Rather than attempting -- as Gonzales' shrill critics do -- to deny that reality, we should be seeking to address it.
Robert J. Delahunty is a law professor at St. Thomas University Law School in Minnesota. John C. Yoo, a law professor at UC Berkeley, is a visiting scholar at the American Enterprise Institute. They were attorneys in the George W. Bush administration Justice Department
Re: Gitmo bay and the Geneva Convention:
^ about as shallow as it gets...
"They were attorneys in the George W. Bush administration Justice Department"
nuff said
Re: Gitmo bay and the Geneva Convention:
Snappy comeback. Try reading it again. I tried to make it obvious by imploying GS’ fancy bold and italic type features.
Re: Gitmo bay and the Geneva Convention:
“Armed Forces” is a formal term defined in Article 43. It does not mean anyone who picks up a gun. Armed forces are organized in such a was as to force compliance with the rules of war, and to provide punishment, structure and command authority. Clearly any organization which includes in it’s declaration of war that it * intends* on targeting civilians cannot be enforcing compliance with the laws of war, rather it is openly and in writing flaunting them!
Article 43 – Armed forces
- 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.
http://www.icrc.org/ihl.nsf/0/af64638eb5530e58c12563cd0051db93?OpenDocument
Re: Gitmo bay and the Geneva Convention:
U.S. Officials Misstate Geneva Convention Requirements
January 28, 2002
The Honorable Condoleezza Rice
National Security Advisor
The White House
Washington, DC
Dear Ms. Rice,
We write concerning the legal status of the Guantanamo detainees. Our views reflect Human Rights Watch’s experience of over twenty years in applying the Geneva Conventions of 1949 to armed conflicts around the world. We write to address several arguments advanced for not applying Article 5 of the Third Geneva Convention of 1949, which, as you know, requires the establishment of a “competent tribunal” to determine individually whether each detainee is entitled to prisoner-of-war status should any doubt arise regarding their status. Below we set forth each of the arguments offered for ignoring Article 5 as well as Human Rights Watch’s response.
Argument: The Geneva Conventions do not apply to a war against terrorism.
HRW Response: The U.S. government could have pursued terrorist suspects by traditional law enforcement means, in which case the Geneva Conventions indeed would not apply. But since the U.S. government engaged in armed conflict in Afghanistan - by bombing and undertaking other military operations - the Geneva Conventions clearly do apply to that conflict. By their terms, the Geneva Conventions apply to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” Both the United States and Afghanistan are High Contracting Parties of the Geneva Conventions.
Argument: A competent tribunal is unnecessary because there is no “doubt” that the detainees fail to meet the requirements of Article 4(A)(2) for POW status.
HRW response: Article 5 requires the establishment of a competent tribunal only “[s]hould any doubt arise” as to whether a detainee meets the requirements for POW status contained in Article 4. The argument has been made that the detainees clearly do not meet one or more of the four requirements for POW status contained in Article 4(A)(2) - that they have a responsible command, carry their arms openly, wear uniforms with distinct insignia, or conduct their operations in accordance with the laws and customs of war. However, under the terms of Article 4(A)(2), these four requirements apply only to militia operating independently of a government’s regular armed forces - for example, to those members of al-Qaeda who were operating independently of the Taliban’s armed forces. But under Article 4(A)(1) these four requirements do not apply to “members of the armed forces of a Party to the conflict as well as members of militia … forming part of such armed forces.” That is, this four-part test would not apply to members of the Taliban’s armed forces, since the Taliban, as the de facto government of Afghanistan, was a Party to the Geneva Convention. The four-part test would also not apply to militia that were integrated into the Taliban’s armed forces, such as, perhaps, the Taliban’s “55th Brigade,” which we understand to have been composed of foreign troops fighting as part of the Taliban.
Administration officials have repeatedly described the Guantanamo detainees as including both Taliban and al-Qaeda members. A competent tribunal is thus needed to determine whether the detainees are members of the Taliban’s armed forces (or an integrated militia), in which case they would be entitled to POW status automatically, or members only of al-Qaeda, in which case they probably would not be entitled to POW status because of their likely failure to meet the above-described four-part test. Until a tribunal makes that determination, Article 5 requires all detainees to be treated as POWs.
Argument: Even members of the Taliban’s armed forces should not be entitled to POW status because the Taliban was not recognized as the legitimate government of Afghanistan.
HRW response: As Article 4(A)(3) of the Third Geneva Convention makes clear, recognition of a government is irrelevant to the determination of POW status. It accords POW status without qualification to “[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power.” That is, the four-part test of Article 4(A)(2) applies only to militia operating independently of a government’s armed forces, not to members of a recognized (Article 4(A)(1)) or unrecognized (Article 4(A)(3)) government’s armed forces. Thus, whether a government is recognized or not, members of its armed forces are entitled to POW status without the need to meet the four-part test.
This reading of the plain language of Article 4 is consistent with sound policy and past U.S. practice. As a matter of policy, it would undermine the important protections of the Third Geneva Convention if the detaining power could deny POW status by simply withdrawing or withholding recognition of the adversary government. Such a loophole would swallow the detailed guarantees of the Third Geneva Conventions - guarantees on which U.S. and allied troops rely if captured in combat. This reading is also consistent with past U.S. practice. During the Korean War, the United States treated captured Communist Chinese troops as POWs even though at the time the United States (and the United Nations) recognized Taipei rather than Beijing as the legitimate government of China.
Argument: Treating the detainees as POWs would force the United States to repatriate them at the end of the conflict rather than prosecuting them for their alleged involvement in terrorist crimes against Americans.
HRW response: POW status provides protection only for the act of taking up arms against opposing military forces. If that is all a POW has done, then repatriation at the end of the conflict would indeed be required. But as Article 82 explains, POW status does not protect detainees from criminal offenses that are applicable to the detaining powers’ soldiers as well. That is, if appropriate evidence can be collected, the United States would be perfectly entitled to charge the Guantanamo detainees with war crimes, crimes against humanity, or other violations of U.S. criminal law - more than enough to address any act of terrorism against Americans - whether or not a competent tribunal finds some of the detainees to be POWs. As Article 115 of the Third Geneva Convention explains, POWs detained in connection with criminal prosecutions are entitled to be repatriated only “if the Detaining Power [that is, the United States] consents.”
Argument: Treating the detainees as POWs would preclude the interrogation of people alleged to have information about possible future terrorist acts.
HRW response: This is perhaps the most misunderstood aspect of the Third Geneva Convention. Article 17 provides that POWs are obliged to give only their name, rank, serial number, and date of birth. Failure to provide this information subjects POWs to “restriction” of their privileges. However, nothing in the Third Geneva Convention precludes interrogation on other matters; the Convention only relieves POWs of the duty to respond. Whether or not POW status is granted, interrogators still face the difficult problem of encouraging hostile detainees to provide information, with only limited tools available for the task. Article 17 states that torture and other forms of coercion cannot be used for this purpose in the case of POWs. But the same is true for all detainees, whether held in time of peace or war. (See, e.g., Article 2 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which the U.S. has ratified: “No exceptional circumstance whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” See also Articles 4 and 5, making violation of this rule a criminal offense of universal jurisdiction.)
Article 17 of the Third Geneva Convention provides that POWs shall not be “exposed to any unpleasant or disadvantageous treatment of any kind” for their refusal to provide information beyond their name, rank, serial number, and date of birth. That would preclude, for example, threats of adverse treatment for failing to cooperate with interrogators, but it would not preclude classic plea bargaining - that is, the offer of leniency in return for cooperation - or other incentives. Plea bargaining and related incentives have been used repeatedly with success to induce cooperation from members of such other violent criminal enterprises such as the mafia or drug traffickers. These would remain powerful tools for dealing with the Guantanamo detainees even if a competent tribunal finds some of them to be POWs.
Argument: The detainees are highly dangerous and thus should not be entitled to the more comfortable conditions of detention required for POWs.
HRW response: In light of the two prisoner uprisings in Afghanistan, we do not doubt that at least some of the Guantanamo detainees might well be highly dangerous. Nothing in the Geneva Conventions precludes appropriate security precautions. But if some of the detainees are otherwise entitled to POW status, the Conventions do not allow them to be deprived of this status because of their feared danger. Introducing unrecognized exceptions to POW status, particularly when done by the world’s leading military power, would undermine the Geneva Conventions as a whole. That would hardly be in the interest of the United States, since it is all too easy to imagine how that precedent will come back to haunt U.S. or allied forces. Enemy forces who might detain U.S. or allied troops would undoubtedly follow the U.S. lead and devise equally creative reasons for denying POW protections.
In conclusion, we hope the U.S. government will agree to establish the “competent tribunal” required by Article 5 of the Third Geneva Convention for the purpose of determining case by case whether each detainee in Guantanamo is entitled to prisoner-of-war status. That decision would uphold international law, further U.S. national interests, and not impede legitimate efforts to stop terrorism.
Respectfully,
Kenneth Roth
Executive Director
Re: Gitmo bay and the Geneva Convention:
I swear that is teh stupidest piece of garbage i have ever read. Article 2 para 1 states:
[quote]
In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
[/quote]
Re: Gitmo bay and the Geneva Convention:
[quote]
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.
[/quote]
So the requirements are:
- Consist of an organized armed force. Fits Al-Qaeda
- Under a commond responsible to the party/ ** Fits Al-Qaeda**
A party to the conflict can be anybody. It does not define armed forces as an army. It describes it as a force with a chain of command responding to one of the parties involved in the conflict.
Re: Gitmo bay and the Geneva Convention:
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.
Do you not read? Once again, the Geneva Conventions are balanced. It only confers a favorable treatment when the party in question follows the rule of war. Obviously if Al Qaeda's declaration of war includes an illegal order not just to all Al Qaeda, but to all Muslims it is hard to argue that that organization is not routinely violating the rules of war.
Re: Gitmo bay and the Geneva Convention:
OG, if for the sake of argument we accept your (incorrect) position... isn't that what the "enemy" does, not abide by the laws and customs of war... they break the rules?...
so, okay, you wanna throw the rule book out the window too... they don't follow the rules, you don't follow the rules... we end up with like minded morons on both sides...
Re: Gitmo bay and the Geneva Convention:
^^ Absolutely not! What is sacrificed is specific benefits confered by POW status. That does not mean that other more broad treaties and conventions would not still apply.
Re: Gitmo bay and the Geneva Convention:
^ please enlighten us as to which internationally accepted treaties those prisoners are being governed by?
Re: Gitmo bay and the Geneva Convention:
Are you saying that Al Qaeda does have an internal disciplinary system? How do you know this? We deal with part one of the sentence before dealing with part two.