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Politics : Foreign Affairs Discussion Group -- Ignore unavailable to you. Want to Upgrade?

To: Ilaine who wrote (52674)	10/18/2002 4:25:41 AM
From: zonder	Read Replies (1) \| Respond to of 281500

Re: I would be interested in seeing the legal argument Then do read it where it is posted on this forum: Message 18123798 America was at war with Afghanistan (even if they try to fudge this issue sometimes by claiming it was a manhunt or a police action or whatever the fact remains they were attacking the armed forces of the government of a nation state, albeit a rather unpleasant one, and Art. 2 is pretty clear that the convention is to be widely applied and certainly covers these circumstances) and so any prisoners they have captured, whether Taliban or al-Qaeda (Arts. 4(1) and (2) make it clear the convention applies equally to regular armed forces and irregular armed forces fighting for or on behalf of one of the parties to the conflict) are prisoners of war and so have the benefit of the Geneva Convention and all its provisions (including, of particular relevance, Art 118 "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities." which the US does not seem especially keen to comply with). It should be remembered though, that as a matter of customary international law (I don't know how deeply you've looked into this but much international law is not codified by treaty and has grown up out of custom and practise but is just as binding (common law lawyers have less difficulty with this than civil law lawyers) - sovereign immunity is one of the best known examples of customary international law which has not been codified by treaty) the US does have the right to criminal jurisdiction over any POWs it has captured who have committed offences on it territory or against its citizens. This, of course, does not derogate from Art 85 "Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention." That is, the argument that if the prisoners are directly connected to the September 11 attacks or any other attacks against the US or its citizens that they are civilian prisoners rather than POWs is completely fallacious. The convention is also clear that a POW tried for any offence is entitled to the same rights and safe guards in relation to such trial as a member of the armed forces of the Detaining Power (that is, in this case, the rights and safe guards contained in the US constitution). In any event the argument your "friend" was making that the US constitution doesn't apply to foreigners is complete nonsense. The constitution and the various amendments thereto refer to people, not citizens, and there is a long line of authority confirming that foreigners arrested or brought to trial in the US have the right to exactly the same constitutional protections and due process safeguards as an American. I can't comment on conditions in the camps as I'm not in a position to judge them and the evidence I've seen and heard isn't that conclusive. However, to the extent that any inhumane treatment may have occurred this is illegal as a matter of both US and international law and the US should be allowing red cross and neutral power inspection as required by the convention (Arts 8, 10 et al). Of course it's looking like the Americans are going to happily ignore all of this stuff and just leave the prisoners there to rot forever. As your "friend" also said who enforces international law except America when it suits it. The hypocrisy is incredible (we're fighting a war for human rights, justice and the rule of law but we're not actually going to be bound by any of these things ourselves). Did you know (and this is completely true) that America revoked its submission to the jurisdiction of the International Court of Justice back in the mid-eighties in a fit of pique after the court ruled that America's mining of Nicaraguan ports was illegal and ordered it to pay damages (an order which has never been complied with). ------------------------------------------- ... and his answer to one comment that the Taliban were not the recognized government of Afghanistan and hence could not be awarded POW status: Not much time to go into it properly but whoever this guy is he is missing Art 4(A)(3) "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: [...] (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power" One can argue (and he surely will) about whether al Qaeda constituted "regular" armed forces for the purpose of the convention. This isn't defined and the meaning is unclear but I would argue, especially in the context of the rest of Art 4, that it includes any organised military movement such as Al Qaeda. Anyway the point is that the convention is clear on the fact that the fact a government isn't recognised (and the Taliban WERE recognised by a number of countries, and armed by the US - "How do we know Saddam has weapons of mass destruction? We checked the receipt." - Bill Hicks) does not release a country from it's responsibilities under the convention. And to say that the Northern Alliance was the internationally recognised government is so wrong it's almost funny. Nobody knew who it was (and it barely existed) until the US decided to set it up and support it to give them exactly the kind of excuse for bombing the hell out of everything else that your "friend" is appealing to.