Part-Time Pundit: Do You Support the Geneva Conventions or Not?

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June 20, 2005

Do You Support the Geneva Conventions or Not?

You've heard the claims that we violate the Geneva Conventions at Gitmo under various (incorrect) theories. Let's assume for the sake of argument they are correct. The interrogation methods are wrong, the facilites are illegal, and so on.

The same people say we need to have trials for these individuals and try them in civilian courts because military courts are obviously insufficient. If they haven't committed a crime, they should be released. The problem is, under the Geneva Conventions we can't try them, it would be illegal. And in the few circumstances that we could try them, the Geneva Conventions require a military court. Here are the appropriate quotes from the 3rd Geneva Convention.

Art. 83. In deciding whether proceedings in respect of an offence alleged to have been committed by a prisoner of war shall be judicial or disciplinary, the Detaining Power shall ensure that the competent authorities exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures.

Art. 84. A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105. (Hint: We try military members in military courts when they run afoul of their duties. The only time they hit the civilian system is when they are off-duty doing something off-base in the general population. And even then, they usually get a hearing in the military system also. No detainee has been in the US to commit such a crime).

Art. 99. No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed. (I'm still waiting on what law they've violated. They haven't been in the US, and for the most part, were captured on the field of battle, so by and large almost the entire USC doesn't apply.)

Art. 118. Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. (Hint: Al Queda is still fighting. There is fighting going on in Iraq, and to a lesser extent, in Afghanistan. Even if we tried them and convicted them, they'd still remain in general custody until hostilites have ended)

So what is it guys, do you support the Geneva Conventions or not? You can't have it both ways where you support it only in X circumstance, but expect us to make up laws and crimes to try them and then release them contrary to the same Conventions you hold so dear.

Posted by John Bambenek at June 20, 2005 2:24 PM

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Comments

Great job! You would be surprised at how little these "representatives" actually know. It is pathetic. However, there are a few that do know quite a bit. I think they scare the rest. lol. Have a great day.

Posted by: Rosemary at June 21, 2005 4:13 AM

I'm not sure of your interpretation here, but let's accept them for the sake of argument.

First, it seems that the contradiction you pointed out is a good argument for signing on the ICC.

Second, other treaties and codes apply. Try the UN Convention Against Torture and the Uniform Code of Military Justice.

Your statement,"Hint: Al Queda is still fighting" is meaningless to me. What does this mean? And how could you define when Al Queda has stopped fighting? Should we accept DOD's determination of when Al Queda has stopped fighting? This "Al Queda is still fighting" is a fallacy in which many represessive governments have fallen into. You don't give a government blanket freedom to determine when hostilities have stopped. (See Karl Popper). At the very minimum, to be logically consistent your argument needs to acknowledge that this determination of cessation of hostilities rests not with executive branch, but judicial or legislative branches.

Remember Hannah Arendt's observation that the first step to depriving a people of human rights and dignity is to render them stateless. I would argue that DOD has taken full advantage of the stateless nature of terrorist cells to avoid accountability for their actions (and Gonzales' entanglement in this issue suggests a very real need for an independent prosecutor).

In the meantime, the executive branch has failed to implement the Supreme Court's order of judicial review for Gitmo prisoners ( from Rasul et al. V. Bush, President of the United States, et al) and extraordinary renditions show no sign of abating(http://www.hrw.org/reports/2005/us0405/1.htm#_Toc101408089 ). Amazingly, even Senators have no access to demographic profiles of Gitmo prisoners. (see http://www.pbs.org/newshour/bb/military/jan-june05/gitmo_6-15.html ).

Your provocative reductionistic headline can be countered with this: Do you favor accountability for our soldiers or not? If accountability is not acheived, what should be done about it and who is responsible?

RESPONSE:

I'm not saying no codes apply, there are codes. And there is accountability, see the many court-martials about prisoner maltreatment going on. This doesn't really address anything I said. They still can't be tried in civilian courts. I'm not sure why you are making this about torture because what we are doing while bad, is not the legal definition of torture.

Posted by: Robert nagle at June 22, 2005 2:38 PM