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

To: Ilaine who wrote (52870)	10/21/2002 4:43:22 AM
From: zonder	Read Replies (4) \| Respond to of 281500

CB - a lawyer's answers to your post -------------------------------------------------- Without wanting to sound petty about this, there's only one person here who isn't a lawyer and it ain't me (if you can indulge my double negatives, only a real lawyer would write like that :) ) I've got certificates and everything... What she's written here is so pathetic I can barely bring myself to rebut it. It amounts to: We won therefore everything we did and everything we want to do was legal and right. It is exactly like saying: My position is that X deserved to die. I killed X. Therefore I was right. Anyway here goes: >Or maybe he/she "dumbed it down" for the audience. Or maybe he/she was trying to sign a deal and didn't have time to write a full treatise on the subject. Or maybe you have no idea how somebody who has spent the last 12 years studying and practising law thinks. [I assume you've noticed, BTW, that she is trying to subtly insult you here since I wrote to you and so she is trying to imply you're the audience I "dumbed it down for"] >But the gist of the argument appears to be that the >Taliban was the government of Afghanistan, >and Al Qaeda were fighting >for the Taliban, and therefore >captured Al Qaeda are prisoners of war. Exactly. >The position of the US is that the Taliban was not the >government of Afghanistan, and that terrorists >are never to be treated >as armed forces, whether regular or irregular. The position of the US is irrelevant. We are arguing about the correct interpretation of the Geneva Convention relative (sic) to the Treatment of Prisoners of War (the "Convention") to which the USA is a party. The Convention (and the various other Geneva Conventions relating to aspects of warfare) were specifically drafted to prevent states being able to avoid applying them by the simple ploy of saying they don't recognise an entity as the government of a country. This was felt to be necessary because of the position taken by Germany in the Second World War in relation to Free French and Italian forces. See e.g. icrc.org Nor can the USA escape it's obligations under the convention by arbitrarily defining a group of fighters as "terrorists". This distinction is not known to the Convention. Persons either fall within Art 4 or they don't. My contention, which is based on a reading of the text of the Convention and the commentaries rather than a statement that "We won. Therefore we must be right" is that the Taliban and the Al Qaeda members who fought with them clearly fall within Art. 4 and are therefore prisoners of war. I am not saying that the USA is not entitled to investigate the involvement any of the POWs it has detained in any criminal activities under the laws of the USA. It clearly is so entitled under Chapter III of Section VI of the Convention. However this section does not detract from their status as POWs. See, in particular 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." Although this is irrelevant given the drafting of Art. 4 of the Convention it is also the case that the Taliban were the government of Afghanistan as a matter of customary international law. Diplomatic recognition is not relevant in making this judgement. >We happen to have won the war So you admit it was a war rather than, for example, the provision of assistance to a "government" to defeat a "rebel group" that controlled most of the territory of Afghanistan? A war, of course, implies prisoners of war. >and the government we recognized is now in charge, so I >guess that makes our opinion more correct than your >friend's opinion I am so flabbergasted that you can call yourself a lawyer and make this statement with a straight face that I can barely bring myself to respond to yet another version of the statement that "might makes right". You are basically saying that the law must permit and recognise whatever is the case (except, obviously, that the USA need not recognise the Taliban as the de facto (and, as a matter of customary international law, de jure) government of Afghanistan). Fortunately I don't have to seriously as it is entirely irrelevant to the question of whether or not the Taliban/Al Qaeda prisoners held by the USA are legally POWs (unless you are trying to say that: "They are our prisoners. We say they are not POWs. Therefore they are not POWs" in which case we are no longer arguing about law and there is no point continuing. >If your friend is indeed a lawyer, he/she will tell you >that arguments are all very well, but in the end, it's the > judge who decides. Unless, of course, you're the USA in which case when the judge does decide you have a tantrum, withdraw recognition of compulsory jurisdiction of the ICJ and go and sulk for the next 16 years. I'm referring to the Nicaragua case for those of us who may not know our legal history. --------------------------------------------------