CB - Care to explain to us how you are so certain that the detainees are all terrorists?
Last time I asked you this, you said "because our secretary of defense says so". I would appreciate a more plausible response, if there is one to be found.
His answers to you were more than sufficient, imo, but if you say they are not, here's some more answers to some more questions by Nadine:
>However, serving an unrecognised state does seem to be implied -- does Al
Qaeda qualify as an unrecognized state? Where is
>this state?
This misses the point utterly. I have not and would not attempt to argue
that Al Qaeda constituted a state in its own right. That would be a stupid
position to adopt. My point was that Al Qaeda were allied (indeed in many
ways were congruous see e.g. the background reporting in the Economist
around a year ago) with the Taliban who were the then government of
Afghanistan (even if not recognised by the USA). They therefore fall within
Article 4(A)(1) of the Convention as "members of militias or volunteer corps
forming part of [armed forces of a Party to the conflict]" as well as
4(A)(3) ("Members of regular armed forces who profess allegiance to a
government or an authority not recognized by the Detaining Power") and,
quite possibly 4(A)(2).
>Wearing uniforms and bearing arms openly are specifically mentioned as
necessarily qualifications -- do Al Qaeda
>men do this?
This is, in fact, only mentioned as a qualification to Article 4(A)(2):
"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."
This article was specifically drafted to give legitimacy to resistance
movements operating within occupied territory and was, like Art 4(A)(3),
specifically included as a response to the way the Germans had treated
resistance movements in territory they had occupied in the Second World War.
It was intended to unambiguously prohibit and criminalise such treatment
in
future.
In any event my understanding is that Al Qaeda men did wear uniforms and
carry arms openly, as well as having a command structure, while engaged in
military operations in Afghanistan. I'm sure you're going to pick up on (d)
and start arguing that the 9/11 attacks were not in accordance with "the
laws and customs of war" (in itself debatable but I think the better view
is
that they were criminal acts rather than acts of war) but this does not
matter as Art. 4(A)(2) applies in respect of conduct on the battlefield.
Anyway this whole debate can be skipped as, in my view, the Al-Qaeda
prisoners fall within either (or both of) Art. 4(A)(1) or 4(A)(3).
While I'm at it I would also like draw your attention to Art 5 of the
Convention: "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." Without prejudice to my position
that the prisoners clearly fall within Art 4(A), at the very least doubt
seems to exist so they should have the benefit of the Convention until such
time as the ICJ rules on the situation (a case I would dearly love to see
as
it would be the first time the convention has had to be interpreted
judicially and would, hopefully, deal with a number of questions which have
been bothering me since I put my undergraduate dissertation together on this
topic about 10 years ago).
>This is why I asked, if a mob hit man is captured (let's even supposed he's
captured outside the US), does your friend think
>he should be treated as a POW?
A stupid analogy. Read Art. 2 of the Convention and see if you think I would
be enough of an idiot to think such a thing. |
