News Pentagon erases Geneva rule from Army field manual

[Moonbear]

First, in relation to the original question here, I found this in Article 17, which seems to make the provision in Article 3 redundant.

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

Two summers ago, the SC ruled that the Gitmo detainees had the right to private legal counsel. Alittle over a year following that decision (so, sometime last summer) there was this report that came out showing that about two-thirds of the detainees had still to be assigned legal counsel.

If they are POWs, then no provision of the Geneva Convention seems to require they fall under the jurisdiction of civil courts, only military courts. Their detainment isn't subject to appeal and doesn't require a trial for the duration of the conflict, as far as I can tell. Only if they are being tried for a crime for which additional punishment would be meted out, not just being held as a POW, would they be entitled to a trial. But, if they are just POWs who have not committed any other crime, then they are just held. So, it doesn't matter what the Supreme Court ruled, as far as I can tell...it's not their jurisdiction or call. It may feel wrong to us, but it's not against the Geneva Convention.

http://www.defenselink.mil/releases/2004/nr20040707-0992.html

After a year in prison, the DoD finally agreed to let the prisoners contest their "enemy combatant" status to a military tribunal. They (DoD) still continued to hedge on the detainees' right to independent counsel as guaranteed by the SC in Rasul vs. Bush (see link below)

http://www.cdi.org/news/law/gtmo-sct-decision.cfm

I'm still looking, but haven't yet found anything in the Geneva Convention that seems to make that a right or requirement. It's odd, but I don't see any provision about how one assures that those held as POWs fit the necessary criteria, and how someone can appeal their detainment. It all sounds very much like a guilty until proven innocent issue in that regard.

I mentioned Article 4.6 before, but I'll repeat it again, because it's the one that seems to be most troubling in this regard:

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Who wouldn't take up arms against an invader? Heck, under this provision, the kids on the street throwing rocks could probably be detained as POWs. My guess is that if they resisted in any way, which they probably did (why wouldn't they?), then they probably landed into this category of POW.

Just to be clear, I don't support just grabbing up civilians off the street, or detaining them as POWs because they picked up a rifle or shotgun or kitchen knife to defend their home as soldiers barged through their front doors, but if it did happen that way, I'm not sure the Geneva Convention does a thing to help them or prohibit it. It also doesn't seem to provide much authority for any outside party, i.e., someone other than the US government in the case of Gitmo, to step in and intervene. It seems to be all after-the-fact provisions. This is the first time I'm really reading through it fairly thoroughly, and I was expecting more protections than it really offers.

 

[Ivan Seeking]

I was under the impression that the detainees at Gitmo are classified as enemy combatants precisely so that they can be treated as POWs and therefore not afforded the legal rights that a criminal detainee has, such as habeus corpus and the right to legal counsel.

They were classified so as to avoid any legal restraints whatsoever. As detainees, they are not protected by the Geneva Conventions either.

It was simply more new-speak.

 

[Moonbear]

They were classified so as to avoid any legal restraints whatsoever. As detainees, they are not protected by the Geneva Conventions either.

It was simply more new-speak.

If they fit any of the definitions of a POW, then you can call it anything you want, they're still POWs. If they do not clearly fit any of those definitions, then they aren't POWs, but it seems they still would be covered under the Article 3 provisions, even if not everything else.

The Geneva Convention seems awfully weak and seems to offer a lot of ways to circumvent it without much in the way of repercussions. It almost sounds like the worst that would happen is they could make you release all your prisoners. Did I miss something? Surely if it came to forcing a nation to release prisoners for violating the Convention, there should be some sanction or penalty involved. Is it truly possible to just scapegoat a few POW camp guards and everyone else is off the hook?

 

[BobG]

If they are POWs, then no provision of the Geneva Convention seems to require they fall under the jurisdiction of civil courts, only military courts. Their detainment isn't subject to appeal and doesn't require a trial for the duration of the conflict, as far as I can tell. Only if they are being tried for a crime for which additional punishment would be meted out, not just being held as a POW, would they be entitled to a trial. But, if they are just POWs who have not committed any other crime, then they are just held. So, it doesn't matter what the Supreme Court ruled, as far as I can tell...it's not their jurisdiction or call. It may feel wrong to us, but it's not against the Geneva Convention.

I mentioned Article 4.6 before, but I'll repeat it again, because it's the one that seems to be most troubling in this regard:

Who wouldn't take up arms against an invader? Heck, under this provision, the kids on the street throwing rocks could probably be detained as POWs. My guess is that if they resisted in any way, which they probably did (why wouldn't they?), then they probably landed into this category of POW.

The first thing that has to be determined is which war the prisoners are a part of. If they were in Afghanistan fighting the invasion, then that war is over ... technically? There wasn't a formal declaration of war, making it hard to set a boundary for the end of the war - considering remnants of the Taliban have regrouped and mounted a new fight, maybe you could say that war is still in progress. If they were among the al-Qaeda prisoners captured, then that war is still on-going.

Iraq gets even more problematic. If they were captured during the intial invasion, that war ended when Bush declared 'Mission Accomplished', didn't it? If they were captured during the following insurgency, they could be held until the Iraqi government has established firm control. If they are al-Qaeda terrorists fighting in Iraq, then they could presumably held be held for decades until the 'long war' against terrorism has ended?

All in all, when undeclared wars are fought against ideological groups instead of declared wars against national armies, the rules seem to get a little fuzzy.

The last bit you mentioned about civilians taking up arms against an invading army only applies to them after they've mounted an armed defense. It gives them the same protection and requirements as regular military. It isn't justification to round up anyone who could conceivably mount an armed defense.

 

[Ivan Seeking]

If they fit any of the definitions of a POW, then you can call it anything you want, they're still POWs. If they do not clearly fit any of those definitions, then they aren't POWs, but it seems they still would be covered under the Article 3 provisions, even if not everything else.

Not according to Bush, Rummy, and Gonzales.

To me this alone is grounds to at least throw them all out on their butts, and more to my liking, prosecuted on war crimes charges and for crimes against the people of the US.

 

[Moonbear]

All in all, when undeclared wars are fought against ideological groups instead of declared wars against national armies, the rules seem to get a little fuzzy.

Indeed!

The last bit you mentioned about civilians taking up arms against an invading army only applies to them after they've mounted an armed defense. It gives them the same protection and requirements as regular military. It isn't justification to round up anyone who could conceivably mount an armed defense.

Thanks for the clarification. Is there a plain English translation somewhere? How do they expect regular enlisted personnel to understand all these rules? I'm having a devil of a time understanding some of it myself with the way it's all written.

 

[kyleb]

All in all, when undeclared wars are fought against ideological groups instead of declared wars against national armies, the rules seem to get a little fuzzy.

Anything is fuzzy if you squint your eyes not wanting to see it.

Thanks for the clarification. Is there a plain English translation somewhere? How do they expect regular enlisted personnel to understand all these rules? I'm having a devil of a time understanding some of it myself with the way it's all written.

We have to ingrain respect for human rights through every ounce of our solders training. Every part of human rights must be Thoroughly. explained by the instructors, shown respect for in every exercise, and enforced without accept ion. That is the only way we can hold to the standards which those who lived though the last World War set before themselves, and those peoples' beliefs are exactly what we are giving up on by striping their words from the field manuals.

 

[Bystander]

(snip)The Geneva Convention seems awfully weak and seems to offer a lot of ways to circumvent it without much in the way of repercussions. (snip) Did I miss something? Surely if it came to forcing a nation to release prisoners for violating the Convention, there should be some sanction or penalty involved. Is it truly possible to just scapegoat a few POW camp guards and everyone else is off the hook?

Grotius. Jus gentium. Jus in bellum.

You've missed nothing. Hague and Geneva state goals for conduct; sanctions don't really go beyond "group" censure or approval among signatories, extending or withholding moral support in the post=war kangaroo courts (Nuremberg, Milosevic); Doenitz wasn't crucified for unrestricted sub warfare because everyone engaged in the same thing; Abu G. was a disaster for a couple dozen bright young attorneys in the AG's office --- they busted their asses putting together cases for the Hague and a half dozen retarded, white-trash reservists squandered the option to prosecute assorted Iraqi prisoners for unacceptable conduct by behaving in equivalently unacceptable fashion.

Gitmo? POWs? Or, criminals? Quantrill? Crips? Bloods? It's been 300 years since the Royal Navy has hanged, drawn, and quartered pirates --- Geneva and Hague don't address stateless criminal activity --- might sit down and look at it as a result of the current situation.

(snip)That is the only way we can hold to the standards which those who lived though the last World War set before themselves, ...(snip)

Bismarck Sea? "Right stuff" Yeager? That's the short list; full list has never been put together. The "standards" of Studs Terkel's "Last Good War" never existed, never have, and probably never will.

 

[kyleb]

I am not talking about the events WW2 or any claims of any author's book here. I am talking about what those who survived the horrors of the war came together and agreed upon, the Geneva Conventions. Those are the standards that the people who fought to end WW2 put in place, and those are the standards which we are turning away from now.