Does Common Article 2 of the GC apply to al Qaida?

[OAQfirst]

A debate is on whether the Bush Administration can be charged for war crimes. Regarding the Geneva conventions:

He also challenges the administration's argument that Common Article 3 of the 1949 Geneva Conventions, prohibiting inhumane treatment of detainees, isn't binding. "The standard is not torture. It's humane treatment. That's a much higher standard," he said, noting that after World War II, the U.S. prosecuted Japanese soldiers for using waterboarding on American troops.

However, Common Article 2 of the treaties says that the conventions apply to a conflict between two states that are party to the treaties, and the administration points out that al Qaida doesn't fit that description. In addition, the Military Commissions Act of 2006 specifies what sort of conduct can be punished and appears to give administration officials cover.

http://www.mcclatchydc.com/227/story/58210.html

Is al Qaida an entity separate from a state? While they are an organization, is it demonstrated that they are not citizens of the countries they reside in? Was Afghanistan a party to the treaties and would that matter?

 

[tiny-tim]

Is al Qaida an entity separate from a state?

erm … al Qaida is obviously not a state!

(citizenship of its members is irrelevant)

and the geneva conventions only apply to states which are parties to the conventions anyway

 

[edward]

The Committee of The International Red Cross claims Bush is guilty of war crimes. They have notified the CIA that the Administration is guilty of war crimes.

Bush hired lawyers who advised him as to what was legal and what was not. Having had lawyers pre approve his actions, Bush apparently thinks he is innocent.

 

[Pythagorean]

and the geneva conventions only apply to states which are parties to the conventions anyway

This is the important point. It's part of an agreement between countries and states, not a bunch of people making global laws for all countries and states.

 

[WarPhalange]

Did Japan sign the Geneva Convention Treaty before or during WW2? I honestly don't know and a quick Wikipedia check doesn't come up with anything. We executed their guys for water-boarding our soldiers, so I would assume so. But GC makes me think it was only US/Canada and Europe, since Japan wasn't that much of a strength then, was it?

 

[mgb_phys]

Japan signed the Geneva convention in 1929 and ratified it in 1942

 

[WarPhalange]

Thanks. What's the difference between "signed" and "ratified", by the way?

So I guess this is pretty air-tight. Not on the list, no privileges, huh?

 

[Pythagorean]

Thanks. What's the difference between "signed" and "ratified", by the way?

So I guess this is pretty air-tight. Not on the list, no privileges, huh?

signing is like putting one toe in, or a trial run, or a verbal agreement. It's a softer implication, whereas ratification is completely accepting it as law of the land. I'll bet it's often a delay tactic, or a balancing act for conflicting treaties, but probably also an earnest way to "test the waters".

http://www.michaelgeist.ca/content/view/1790/125/

 

[WarPhalange]

I don't get how you could "test the waters" with something like that if you're not currently at war.

By the way, did China also get in on the action? Because the Japanese slaughtered them by the millions and you rarely hear anything about that. I was wondering if the Japanese officers were also punished for their atrocities.

EDIT: I do know that a lot of the Japanese doctors who performed human experiments were given pardons in exchange for medical information. As disgusting as the idea is, most of what we know today about the human body in hypothermia is due to that and Nazi experiments. :(

 

[tiny-tim]

The Committee of The International Red Cross claims Bush is guilty of war crimes. They have notified the CIA that the Administration is guilty of war crimes.

What does this have to do with the Geneva conventions??

and that's a video … don't you have a text link? ​

Bush hired lawyers who advised him as to what was legal and what was not. Having had lawyers pre approve his actions, Bush apparently thinks he is innocent.

Extraordinary!

What would lawyers know about it? ​

 

[WarPhalange]

Extraordinary!

What would lawyers know about it? ​

The way Bush has been appointing his "employees", I assume he cycled through lawyers until he found one that said exactly what he wanted to hear.

But otherwise, yeah, it's fairly obvious you'd consult lawyers about the law.

 

[russ_watters]

signing is like putting one toe in, or a trial run, or a verbal agreement. It's a softer implication, whereas ratification is completely accepting it as law of the land. I'll bet it's often a delay tactic, or a balancing act for conflicting treaties, but probably also an earnest way to "test the waters".

http://www.michaelgeist.ca/content/view/1790/125/

No, there is nothing so sinister: it is simply the inverse of how normal laws are enacted. In the case of a treaty, you can't have the entire Congress of every country involved going to meet to discuss and then sign the treaty. That'd be thousands of people and it would be chaos. So you appoint one or two diplomats from each country to hammer out the details, under the direction of the president. Then the President signs the treaty and brings it back to Congress to debate. Sometimes Congress approves it, sometimes they don't.

See the example of the Kyoto treaty: In that case, the US Senate stepped outside of their authority - in a nonbinding way - to voice unanamous opposition to the treaty before it was even finished being written. So Clinton knew when he signed it that it would not be ratified, but he signed it anyway.

 

[russ_watters]

I was wondering if the Japanese officers were also punished for their atrocities.

Oh yes:

http://en.wikipedia.org/wiki/Japanese_war_crimes

 

[tchitt]

No mercy.

 

[BobG]

From a legal perspective, there are some technicalities that give the Bush administration a good defense.

1) Al-qaeda isn't a state and isn't covered by the Geneva Convention
2) Foreign fighters in Afghansitan aren't considered part of the Aghani fighting force and aren't covered by the Geneva Convention
3) The Taliban government was nevered recognized by the UN and therefore their forces aren't technically covered as an opposing state's fighting force (this part is thin since locals fighting an invading force are usually covered since they are defending their own country).

The 'official' government of Afghanistan, recognized internationally and by the UN, was the government led by president Burhanuddin Rabbani, who was ousted by the Taliban in a civil war. Even in the late 90's and 2000 and 2001, the Taliban's association with al-Qaeda and bin Laden created a situation where only 3 nations would recognize them as the legitimate government (Saudi Arabia, Pakistan, and the UAE). The http://www.globalpolicy.org/security/issues/afghan/2001/0419report.pdf, particularly women's rights and religious tolerance, caused problems with the international community, as well. Taliban oppression of Shi'ites in the area near the Iranian border and the murder of Iranian diplomats nearly resulted in a war between Afghanistan and Iran in 1998.

Violating international law in 1996 by snatching the previous president from the UN compound and torturing, mutilating, and hanging him from a lamp post made the UN pretty hostile to the Taliban, as well.

While the administration might have some points that would hold up in court, that opinion generally isn't shared outside the administration. Military legal advisors consistently recommended against the administration's policies on detainee abuse. They specifically didn't want the military involved in those actions since they felt they ran a significant risk of having US troops being considered war criminals if they participated in those types of interrogations.

Based solely on technicalities, private security firms (Blackwell, for example) are violating international law and could be tried as war criminals. Likewise, Claire Chennault's All-Volunteer Group, the Flying Tigers, in China were violating international law and could have been prosecuted as war criminals. Based on technicalities, both groups could be tortured with impunity since they're not protected by international law. While some areas are gray, the usual, and safer interpretation is to treat all enemy combatants the same under international law.

 

[mgb_phys]

1) Al-qaeda isn't a state and isn't covered by the Geneva Convention

That defense was tried in Nuremberg. Jews aren't a state but you can still commit war crimes against them.

2) Foreign fighters in Afghansitan aren't considered part of the Aghani fighting force and aren't covered by the Geneva Convention

Again Germans were prosecuted for executions of partisans/resistance who were fighting after their country surrended. A British politician committed a spectacular gaff recently by claiming all foreigners fighting in wars were terrorists and murderers - he had to do quite a lot of apologising to Polish and French troops that fought with British forces in WWII.

3) The Taliban government was nevered recognized by the UN and therefore their forces aren't technically covered as an opposing state's fighting force (this part is thin since locals fighting an invading force are usually covered since they are defending their own country).

The UN also recognised the USSR backed government before last - it didn't stop a large nunber of foreign fighters opposing them. I doubt any CIA personel involved are likely to be sent to Moscow for trial.

Military legal advisors consistently recommended against the administration's policies on detainee abuse. They specifically didn't want the military involved in those actions since they felt they ran a significant risk of having US troops being considered war criminals if they participated in those types of interrogations.

I suspect the military are more used to being held carrying the can when politicians screw up.

 

[Proton Soup]

That defense was tried in Nuremberg. Jews aren't a state but you can still commit war crimes against them.

http://en.wikipedia.org/wiki/Crime_against_humanity#Nuremberg_trials

 

[russ_watters]

The UN also recognised the USSR backed government before last - it didn't stop a large nunber of foreign fighters opposing them. I doubt any CIA personel involved are likely to be sent to Moscow for trial.

I've never heard it alleged that the CIA personnel did any fighting, much less comitted any war crimes in Afghanistan back then. However, their actions did fall into the realm of espionage, and had any been captured, they'd have been in a world of hurt.

 

[mgb_phys]

Then they were presumably "enemy non-combatants" and should now be handed over to the Russians for a military tribunal.

 

[russ_watters]

Then they were presumably "enemy non-combatants" and should now be handed over to the Russians for a military tribunal.

?? No. The Russians haven't even asked! I can just imagine that phone call, though:

Vlad: Uh, George, I'm going to need you to send me all the spies you had working against the USSR in the '80s.
George: Sure, Vlad, but could you send me all the spies you had working against us?
Vlad: Oh, ok, yeah, that sounds fair.



C'mon. You're being silly.

 

[Pythagorean]

No, there is nothing so sinister: it is simply the inverse of how normal laws are enacted. In the case of a treaty, you can't have the entire Congress of every country involved going to meet to discuss and then sign the treaty. That'd be thousands of people and it would be chaos. So you appoint one or two diplomats from each country to hammer out the details, under the direction of the president. Then the President signs the treaty and brings it back to Congress to debate. Sometimes Congress approves it, sometimes they don't.

See the example of the Kyoto treaty: In that case, the US Senate stepped outside of their authority - in a nonbinding way - to voice unanamous opposition to the treaty before it was even finished being written. So Clinton knew when he signed it that it would not be ratified, but he signed it anyway.

But how does it work for countries who don't have such a competitive government, like MITI or the like. Do they often sign and ratify at the same time, or is still a matter of such huge numbers that they have to do it piecewise?

 

[russ_watters]

But how does it work for countries who don't have such a competitive government, like MITI or the like. Do they often sign and ratify at the same time, or is still a matter of such huge numbers that they have to do it piecewise?

If the country has an absolute monarchy, I'd imagine they just plain sign it. Not a lot of those left, though - most at least have a token legislature to rubber stamp the dictator's actions.

 

[Pythagorean]

If the country has an absolute monarchy, I'd imagine they just plain sign it. Not a lot of those left, though - most at least have a token legislature to rubber stamp the dictator's actions.

I was thinking more like MITI: Japan's government. Who are known to be a lot less competitive than the US (in government) and tend to get things through faster. (This is the generalization I was taught in my lowly Poli Sci core class, anyway)

 

[CRGreathouse]

I think it's important to consider Section 2, Article 118 of Convention III: "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities."

So *if* the Al-Qaida members were considered prisoners of war under the GC, then they'd have to be released after the US pulled out of Afghanistan and Iraq...

More compelling to me are arguments based on the US Constitution rather than the GC, since there are good reasons for treating them as ordinary criminals rather than POWs.

 

[Pythagorean]

I think it's important to consider Section 2, Article 118 of Convention III: "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities."

So *if* the Al-Qaida members were considered prisoners of war under the GC, then they'd have to be released after the US pulled out of Afghanistan and Iraq...

More compelling to me are arguments based on the US Constitution rather than the GC, since there are good reasons for treating them as ordinary criminals rather than POWs.

yeah, law language is nasty. The treaty may have specifically defined "prisons of war" earlier in it. I was pretty wierded out when I learned the definition of "person" in court.

 

[tchitt]

I think it's important to consider Section 2, Article 118 of Convention III: "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities."

So *if* the Al-Qaida members were considered prisoners of war under the GC, then they'd have to be released after the US pulled out of Afghanistan and Iraq...

More compelling to me are arguments based on the US Constitution rather than the GC, since there are good reasons for treating them as ordinary criminals rather than POWs.

Detained terror suspects wouldn't be considered prisoners of war with respect to Afghanistan and Iraq because the "war on terror" doesn't end with those countries. Al Qaeda is simply a world wide organized crime entity whose members are fugitives from the justice system of the United States. We're hunting down these ordinary criminals and just happen to be going to war at the same time... the "war on terror" isn't a real war, much like the war on drugs. You wouldn't treat the top members of a drug cartel as you would POWs. That's just my viewpoint on the whole thing, I'm not versed in the geneva conventions at all.

 

[mgb_phys]

Al Qaeda is simply a world wide organized crime entity whose members are fugitives from the justice system of the United States. We're hunting down these ordinary criminals and just happen to be going to war at the same time.

That was the British attitude to the IRA - they were just ordinary criminals not political prisoners. Unfortunately it is difficult to hold that view while trying people in military courts and shipping them off to other countries to be tortured.

Unless of course they intend to apply the same methods to other ordinary criminals - which could make the investigations into Wall St fraud more interesting.

 

[tchitt]

Yeah you make a good point. The bottom line, though, is that the United States does what it wants because... I mean, come on. We send foreign aid to smaller, poorer countries and create addicts. When they don't toe the line we take it away and put sanctions on them. If that stops working we've got an unbelievably powerful military to fall back on and to engage in war with the United States would assure too much destruction for a few suspected terrorists' comfort to be worth it.

 

[mgb_phys]

The bottom line, though, is that the United States does what it wants because... I mean, come on.

What the British used to call gunboat diplomacy - also known among 5 year olds as the "you and whose army?"

 

[BobG]

2) Foreign fighters in Afghansitan aren't considered part of the Aghani fighting force and aren't covered by the Geneva Convention

Based solely on technicalities, private security firms (Blackwell, for example) are violating international law and could be tried as war criminals. Likewise, Claire Chennault's All-Volunteer Group, the Flying Tigers, in China were violating international law and could have been prosecuted as war criminals. Based on technicalities, both groups could be tortured with impunity since they're not protected by international law. While some areas are gray, the usual, and safer interpretation is to treat all enemy combatants the same under international law.

Again Germans were prosecuted for executions of partisans/resistance who were fighting after their country surrended. A British politician committed a spectacular gaff recently by claiming all foreigners fighting in wars were terrorists and murderers - he had to do quite a lot of apologising to Polish and French troops that fought with British forces in WWII.

I find the attitude towards foreign fighters participating in a war to be one of the flaws in the Geneva Convention. In fact, I think using outright mercenaries is acceptable. You're fighting a war to win, you're not playing intercollegiate sports. The very survival of your country might be at stake and you ought to fight with the best fighting forces you can come up with, even if you have to buy them.

In any event, I find any discussion about detainee abuse based on technicalities or based on whether they work or not to be slightly disgusting.

Saying detainees shouldn't be tortured because torture doesn't work is a pathetic argument used because a politician isn't willing to say humane treatment of an enemy is worth American lives.

Saying waterboarding worked and resulted in obtaining intelligence that saved American lives isn't enough. You'd better go a step further and state exactly how many lives were saved.

If torture works and saving American lives is the only concern, then why did we agree to the Geneva Convention in the first place. Agreeing to it was a decision that the principles involved were more important than the number of lives that would be saved (0 lives if torture doesn't work at all ranging to [how many?] depending on how effective torture is).