[Troll]

"A Monstrous Failure of Justice." That's how Lord Steyn, one of the UK's premier judges describes the detention of suspects at Camp Delta, Guantanamo Bay. "The question is whether the quality of justice envisaged for the prisoners at Guantanamo Bay complies with the minimum international standards for the conduct of fair trials," Lord Steyn continued. "The answer can be given quite shortly. It is a resounding 'no'."

It doesn't take a genius to work out that what the US is doing in Guantanamo Bay disgusts all of the principles that George Bush so produly purports to be bringing to the Iraqi people.

Just to remind you, nearly 2 years after the end of the war in Afghanistan, the US is still holding 660 prisoners in Guantanamo Bay. They have neither had charges brought against them, nor have they ever consulted with legal counsel. The vague set of rules under which they are held does not prohibit the use of force to coerce confessions. Conditions have been described by UK officials as "Not quite torture, but as close as you can get." Effectively, they are being held indefinitely without trial and without any legal rights. I won't mention the list of regimes whose company the Bush Administration has put itself in; I think we all know that only the worst qualify for admission to this exclusive club. And the US considers the death penalty a competent punishment for whatever crime it may be that they decide to charge these guys with ... IF they decide to charge these guys.

The US Courts have conveniently held that they have no jurisdiction over the prisoners since Guantanamo is not US territory!! I have written to the UK Law Society of which I am a member requesting that they redouble their efforts to sue Tony Blair and the UK government for their inaction in this affair. Blair thinks he's done his duty by merely obtaining a promise that the death penalty won't be applied to the British citizens. I just wish I could do more. I have no doubt that among the 660 prisoners there are a few terrorists, but the US has blown it. By failing to charge them timeously, by holding them under rules that offend the basic principles of justice, the US has forfeited the right to deal with these people. The US is not equipped to apply justice in this case; for one, justice will never be seen to be done given the history of the detention. They either need to be tried now by an international tribunal at which no evidence collected during their time in Guantanamo is admissible, or they all need to be released immediately.

[SimeyTheLimey]

Let me see. This British judge accused US Courts of dropping the ball because he doesn't like the fact they have uniformly found that they don't have jurisdiction. I don't know how the law is in the UK, but in the US, courts can't just make up their jurisdiction. If the courts don't have jurisdiction, they don't have jurisdiction. It's grossly improper for a British Law Lord to presume to tell the US Courts where they should find their jurisdiction. I'm sure he'd get upset if Justice Scalia started telling him how to construe his court's jurisdiction. He should know better.

The rest of his arguments seem equally flimsy. He appeals to customary international law instead of the Geneva Convention. Why is that? Why not say the US is violating the Geneva Convention, if that is what it is doing? I think I can guess why.

Secondly, what is this stuff about trials? The detaining power isn't required to try POWs. Nor is there any requirement for civil trials if it does choose to try them. The GC is quite clear how trials are to be convened. Thay are supposed to be military trials using the same laws as the detaining power uses to try its own soldiers. All this crap about "kangaroo courts" is contrary to what the GC actually says. Do British judges routinely make things up like that? Moreover, the GC expressly contemplates the death penalty. It is right there in black and white.

Conclusion: a political judge made a political speech. I'm sure someone in the Foreign Office will have a word with him.

[christ]

Now let's see - "Lord Steyn, one of the UK's premier judges" and Simey disagree.

What a surprise.

And guess which one must be right? That's right, it must be Simey, because the other guy has a political axe to grind, while, of course, Simey doesn't.

[SimeyTheLimey]

Originally posted by christ:
Now let's see - "Lord Steyn, one of the UK's premier judges" and Simey disagree.

What a surprise.

And guess which one must be right? That's right, it must be Simey, because the other guy has a political axe to grind, while, of course, Simey doesn't.

Next time Justice Scalia or Justice Thomas says something you disagree with, remember you have to automatically defer to their opinion. After all, they are premier judges too. And obviously, they have no political views. Judges are pure tabula rasa.

[eklipse]

Uh-oh.

I fear another Troll vs. Simey 7-round-bout coming on.

I hope you guys have your paperwork in order.

[voodoo]

Originally posted by SimeyTheLimey:
Next time Justice Scalia or Justice Thomas says something you disagree with, remember you have to automatically defer to their opinion. After all, they are premier judges too. And obviously, they have no political views. Judges are pure tabula rasa.

You don't get it. christ and we all know judges can be as political as anyone. Especially supreme court judges.

So let me spell it out for you: YOU were being criticized for having a political axe to grind. YOU are partial and NOBODY is surprised YOU have something to say against this particular judge. You don't even try and do it in a logical or comprehensive way. You just reflect your (rather boring and monotonous) POV of politics.

[edit: removed disgusting comment. you're welcome to have an argument, but please don't be vulgar. it's uncalled for and hardly helps your position.]

[Troll]

Originally posted by SimeyTheLimey:
Let me see. This British judge accused US Courts of dropping the ball because he doesn't like the fact they have uniformly found that they don't have jurisdiction.

No, no, no. That's what I accuse the US of. He simply said the words in quotes, i.e. that it is a monstrous failure of justice and that minimum standards of justice have not been applied to those prisoners.

I can't imagine what political agenda you might be ascribing to the judge. What might he or his office stand to gain from a political speech of this nature? Perhaps you can enlighten me.

Originally posted by SimeyTheLimey:
Secondly, what is this stuff about trials? The detaining power isn't required to try POWs.

Yes quite, which illustrates perfectly why the US is infringing the Geneva Conventions! There shouldn't be any trials - they should be released! The only time it is competent under the Geneva Conventions for a trial to take place is where doubt arises as to whether they meet the requirements for a POW (Art. 5). At the end of the war, the only people the warring parties can continue to detain are those against whom charges have been brought. Those people would not be considered POW's; they would be considered criminals. Is the argument is that these are POW's of the war on terror which is not over? The "war on terror" is not one that international law recognises. It's not even a concept that makes sense. The war that is recognised is the Afghan war which is over. When it ended, all of the prisoners that were held were officially POW's since none of them had been charged under Article 82 or with war crimes or anything else. Per the Geneva Conventions, all POW's have to be released at the end of the war.

I understood your argument previously to be that these guys were NOT POW’s; that they were war criminals. I would have been in favour of waiving the requirement for them to be released immediately if charges had been brought within a reasonable time, but given the actual period that has now passed, in my opinion, the US has forfeited that leniency. It clearly had no intention of dealing with these people properly; merely of treating them inhumanely for as long as possible for whatever reason. But don't get me started on the Geneva Conventions. You know that I have a list as long as my arm of US violations of the Geneva Conventions in Guantanamo.

The GC is quite clear how trials are to be convened. Thay are supposed to be military trials using the same laws as the detaining power uses to try its own soldiers. All this crap about "kangaroo courts" is contrary to what the GC actually says.

What the GC's actually say is that a competent tribunal is one which complies with "international humanitarian and human rights standards." So the judge’s accusation that they are not being held in accordance with such standards is precisely on the point of the GC’s. The question has nothing to do with a military or civil trial. I don’t care what court they get as long as that court complies with international humnanitarian standards. It so happens that I can’t see that those standards can be met by a military tribunal particularly one that the US proposes. Given the circumstances of these people being held in conditions that offend the GC, I think the standard is raised. That is, the only way an international standard would atone for the US’s wrongs would be for the trial to not allow any evidence collected during the internement to be used against them and for a very public judicial process.

What baffles me really is why the US screwed this up so badly. Do they think that they’re scaring terrorists with this behaviour? Terrorists that blow themselves up are going to be afraid of being captured? Or is that they really don’t have anything to pin on these guys and are scared of letting them go?

[moki]

Originally posted by Troll:
What baffles me really is why the US screwed this up so badly. Do they think that they’re scaring terrorists with this behaviour? Terrorists that blow themselves up are going to be afraid of being captured? Or is that they really don’t have anything to pin on these guys and are scared of letting them go?

More people are being released from GitMo every week it seems.

Did it occur to you that terrorists are a new kind of threat -- they aren't people who wear uniforms, work in a fixed military structure, have a centralized chain of command, etc? Attempting to address these detainees in the same manner we address common soldiers would be absurd in the extreme.

It would be akin to the British using their old school line fighting techniques against those pesky bluecoats during the American Revolution. Adapt, or die.

I'd rather errantly hold someone in GitMo longer than needed than I'd rather that someone was errantly set free to plot more suicide bombings.

[SimeyTheLimey]

Originally posted by eklipse:
Uh-oh.

I fear another Troll vs. Simey 7-round-bout coming on.

I hope you guys have your paperwork in order.

No, not really. Thanks to that thread I think I already know where Troll stands. He thinks that terrorists are just regular criminals and that this is peacetime. I think the situation is more reasonably defined as wartime and terrorists are closer to spies and saboteurs. I think it is nevertheless fair to say that the basic problem for both of us is that traditional international humanitarian law really does not fully describe the present situation. To some extent, both sides are trying to fit round pegs through square holes. The reason is because terrorist violate all of the rules.

Nevertheless, I think I am on firmer ground. My peg fits through the hole. It seems to me that Troll's can only be wished inside. That is why this judge is appealing to some vague customary law instead of the Geneva Convention. The last thing he would want to do is say that terrorists should be handled within the regular laws of war. If he did, he knows they could be lawfully executed as war criminals, or alternatively as spies or saboteurs. That is quite well settled, but obviously not the answer he wants.

Nevertheless, the bottom line for this thread is that a judge in country A has no business telling judges in country B how the judges in country B should construe their jurisdiction. It is simply improper and that is what I am criticizing him for. If the British Government has a problem, the issue should be raised properly through diplomatic channels, or maybe through the ICJ. This guy is just shooting off his mouth.

[sanity assassin]

It's not jus that Judge that finds this abhorent, virtually most peopel outside the US does too, from what I gather, even right-wing newspapers here in the UK.

What does the US' behvaiour tell us? That the rules of war, and rules on human rights can be made up as they see fit, depending on what they then decide is in the best interests of their nation.
Cool, that should go for any other nation too, and let's not hear the US complain when it's citizens are being treated like animals.

[SimeyTheLimey]

Originally posted by Troll:
Do they think that they’re scaring terrorists with this behaviour? Terrorists that blow themselves up are going to be afraid of being captured? Or is that they really don’t have anything to pin on these guys and are scared of letting them go?

As with all POWs, the purpose is just to keep them off the "battlefield." It's not punishment per se.

The complicating factor is that these particular combatants (or rather, former combatants, POW's are not combatants) chose to fight their war illegally. Terrorism is not a legitimate way to wage war. If the US were to try them, they would be found guilty. The body of law the GC mandates the US use to try enemy POWs is the same one it uses to try its own soldiers. Under the Uniform Code of Military Justice, the penalty could well be death.

[aside, where are you getting this idea that POWs can't be tried for war crimes? Yes they can. Geneva Convention Relative to the Treatment of Prisoners of War (1949) Articles 99 through 108.]

The reason the US is in this "mess" is mostly because it doesn't want to follow through on this logic. These prisoners, or at least the worst of them, will be held until the end of hostilities in the war on terror. I.e a long time. But I don't think there is much appetite to execute them.

[petehammer]

I get it now, Simey and Moki!

See, terrorists are different from us, so we can treat them differently. None of this "all men are created equal", terrorists are evil, so we can hold them without trials or access to lawyers.

So, one would like to think that justice is equal in this country, but in fact bad, bad terrorists mean we can do away with that nonsense.

Remember Timothy McVeigh? He never had charges brought against him and was never allowed to consult a lawyer. They also shipped him away from the public eye and held him where no one could have access to him. Why? Because he was a terrorist, pure and simple.

The system is working.

I'd rather errantly hold someone in GitMo longer than needed than I'd rather that someone was errantly set free to plot more suicide bombings.

No joke! That's why you should vote on Prop 113, which keeps people who have committed traffic violations off the streets. It takes these people, puts them in holding cells far, far away from lawyers or family.

Better safe, than sorry, right?

[DBursey]

Canadian deported to Syria following stopover in New York

The US violates its own rules regarding deportation of persons to countries known to practise torture. Officials in New York showed total disregard for Arar's Canadian citizenship and passport. Canadians of Arab ethnicity are well-advised to stay out of the US, even in transit.

From the linked article:

He's the Canadian citizen who was stopped in New York, held as a potential Al Qaeda agent and bundled off to Syria, where he spent 10 months in a rat-ridden cell and says he was tortured before the Syrians freed him last month.

Ottawa considers him an innocent man. Even Americans are decrying his rough treatment.

[moki]

Originally posted by SimeyTheLimey:
The reason the US is in this "mess" is mostly because it doesn't want to follow through on this logic. These prisoners, or at least the worst of them, will be held until the end of hostilities in the war on terror. I.e a long time. But I don't think there is much appetite to execute them.

Indeed, that's correct, I agree with you.

Another thing to consider is what exactly would you do with these people?

Send them back to their native countries? Unleash a bunch of militant terrorists back into the wild? Somehow, that doesn't seem like the most responsible thing to do, does it?

[SimeyTheLimey]

Originally posted by DBursey:
Canadian deported to Syria following stopover in New York

The US violates its own rules regarding deportation of persons to countries known to practise torture. Officials in New York showed total disregard for Mahir's Canadian citizenship and passport. Canadians of Arab ethnicity are well-advised to stay out of the US, even in transit.

Wasn't he a dual citizen?

[eklipse]

Originally posted by SimeyTheLimey:
Nevertheless, the bottom line for this thread is that a judge in country A has no business telling judges in country B how the judges in country B should construe their jurisdiction. It is simply improper and that is what I am criticizing him for. If the British Government has a problem, the issue should be raised properly through diplomatic channels, or maybe through the ICJ. This guy is just shooting off his mouth.

I dunno, if country A was country B's stanchest ally in it's war against country C and even a judge from country A is joining countries X, Y and Z in criticizing country B's justice system - I think perhaps country B should take a serious look at how it is handling justice.

[moki]

Originally posted by petehammer:
See, terrorists are different from us, so we can treat them differently. None of this "all men are created equal", terrorists are evil, so we can hold them without trials or access to lawyers.

"all men are create equal" applies legally to citizens of the US (I'm assuming you're quoting it from that source).

And yes, it does take time for our justice system to adapt to new threats such as global terrorist networks.

"Working the system" is exactly what terrorists have made their modus operendi, and it is what has enabled them to carry out attacks such as 9/11. In light of that, it makes sense to change the system to adapt to the unique methods and threats from terrorists.

Doing otherwise would be the height of folly, and would invite and allow further attacks on America and American interests by terrorists. This isn't particularly difficult.

[petehammer]

Originally posted by moki:

Doing otherwise would be the height of folly, and would invite and allow further attacks on America and American interests by terrorists. This isn't particularly difficult.

So, we did do the same to the Michigan Militia, I am to understand?

[SimeyTheLimey]

Originally posted by petehammer:
I get it now, Simey and Moki!

See, terrorists are different from us, so we can treat them differently. None of this "all men are created equal", terrorists are evil, so we can hold them without trials or access to lawyers.

No, no, no. The rules of war are not like the rules for peace. You are applying peacetime rules (arrest, trial, conviction) to wartime. It's not appropriate.

If these people stand trial as combatants, they will get lawyers and face trial under exactly the same standards as our own soldiers do when they are accused of crimes. That's what the Geneva Convention requires. But the US isn't obligated to try them. The default under the GC is that they simply be held until the end of hostilities and then released.

[DBursey]

Originally posted by SimeyTheLimey:
Wasn't he a dual citizen?

No; Arar left Syria as a teenager and did not have dual citizenship. His Canadian passport clearly indicated as much.

You may be thinking of William Sampson, a Canadian of dual British citizenship who was imprisoned and tortured by the Saudi's after being falsely accused of involvement in a bombing in Riyadh.

[SimeyTheLimey]

Originally posted by DBursey:
No; Arar left Syria as a teenager and did not have dual citizenship. His Canadian passport clearly indicated as much.

You may be thinking of William Sampson, a Canadian of dual British citizenship who was imprisoned and tortured by the Saudi's after being falsely accused of involvement in a bombing in Riyadh.

What did Syria say about his citizenship? What Canada says is irrelevant.

[petehammer]

Originally posted by SimeyTheLimey:
What did Syria say about his citizenship? What Canada says is irrelevant.

I don't know, that he had a Canadian passport?

[DBursey]

Irrevelant? How so? He was a Canadian citizen travelling with a Canadian passport.

Syria had no official comment about the case. Arar was taken off his flight to Toronto, refused permission to contact a lawyer or the Canadian consulate, and put on a plane to Syria, where he was incarcerated under atrocious conditions and tortured for more than 10 months.

[Troll]

Originally posted by moki:
More people are being released from GitMo every week it seems.

Which is an admission that they didn't belong there. Simey likes to misquote and misrepresent me. I understand the stakes here, but there are ways of dealing with these people. The Convention realises that in a war, there are a number of different players. It's not just one army vs. another. Only the members of the army (who haven't broken the rules of war) are entitled to POW status. The rest don't have its protection. BUT, you have to work out who is army and who isn't. It would be an inequitable situation if the Convention assumed no one was army, so it does the opposite. It assumes everyone is entitled to POW status and puts the obligation on the captor to determine who isn't entitled to the POW status. What should have happened is the following:

a) The US captures a whole bunch of people;
b) It splits them into POW (e.g. Afghan soldiers), war criminals (including soldiers who have not played by the rules of war) and other criminals (e.g. people who have committed the crime of terrorism prior to the war). It does this by convening tribunals that apply the standards of international humanitarian law to investigate the status of each person;
c) It charges those it has identified as war or other criminals and affords them trials in accordance with international humanitarian standards;
d) At the end of the war, it releases the POW's and keeps the criminals in detention until their cases have been decided;
e) When their cases are completed, it either punishes the criminals or releases them.

What is so hard about doing that? This is not rocket science. It's a question of reading the Geneva Conventions. Terrorism is not a "new threat." It has been around for time immemorial. The US might be new to it but the international community has been dealing with it for decades.

[SimeyTheLimey]

Originally posted by DBursey:
Irrevelant? How so? He was a Canadian citizen travelling with a Canadian passport.

No, I think it is more complicated than that. a dual Canadian/Syrian national is as much a Syrian as he is a Canadian. What passport he carries doesn't determine which of his two nationalities is his nationality for extradition purposes.

Where he lives probably should have tipped the scales towards Canada as being his dominant nationality. The US clearly did what was convenient in the case of a suspected al-Queda member and it is pretty transparent the reason it did so. But legally, a third country such as the US isn't obliged to make a decision if you have two citizenships. Third countries can respect either of them and they aren't obliged to respect your preference.

The moral of the story is dual citizenship can get you in trouble. I wouldn't recommend that status for anyone because it can leave you in a nasty situation of legal limbo.

[christ]

Originally posted by SimeyTheLimey:
What did Syria say about his citizenship? What Canada says is irrelevant.

What America says should be irrelevant - it is what is in his passport that is relevant, if that passport is legal. The Americans don't appear to dispute that his Canadian passport was legal, it just appears that they didn't think that deporting him to Canada would be of sufficient deterrent value. ("Deterrent from what?" I hear you ask, but don't ask me, ask the immigration officials)

[Troll]

Originally posted by SimeyTheLimey:
No, no, no. The rules of war are not like the rules for peace. You are applying peacetime rules (arrest, trial, conviction) to wartime. It's not appropriate.

If these people stand trial as combatants, they will get lawyers and face trial under exactly the same standards as our own soldiers do when they are accused of crimes. That's what the Geneva Convention requires. But the US isn't obligated to try them. The default under the GC is that they simply be held until the end of hostilities and then released.

The Geneva Conventions DO NOT require that people "stand trial as combatants." What nonsense! The only trials the Geneva Conventions envisage are those to determine whether or not a prisoner is a POW. If what you're trying to say is that these guys are war criminals then why the hell haven't they been charged ... in nearly two years? That's the whole freakin point here.

[BRussell]

In related news, remember that army chaplain who was accused of being a spy, passing classified information back and forth between Gtmo prisoners? His name is Yousef Yee. So they decided they could release him prior to his trial, and charged him with adultery and downloading porn.


It almost sounds like they've given up on the spying charges.

[DBursey]

I have to correct my previous post and acknowledge that Arar was indeed considered by the Syrians as a citizen. That does not explain the treatment afforded him by American officials. The man was a Canadian citizen and was travelling with a Canadian passport. No charges were ever brought against him in Syria or the US. 10 months of torture and solitary confinement with no charges, no legal representation, no explanation whatsoever.

Perhaps the American officials determined the Canadian engineer's skin colour to be passport enough, and decided to contract out his torture to Syria.

[christ]

Originally posted by Troll:
...What should have happened is the following:

a) The US captures a whole bunch of people;
b) It splits them into POW (e.g. Afghan soldiers), war criminals (including those who have not played by the rules of war and other criminals (e.g. people who have committed the crime of terrorism). It does this by convening tribunals that apply the standards of international humanitarian law to investigate the status of each person;
c) It charges those it has identified as war or other criminals and affords them trials in accordance with international humanitarian standards;
d) At the end of the war, it releases the POW's and keeps the criminals in detention until their cases have been decided;
e) When their cases are completed, it either punishes the criminals or releases them.

But the US approach has apparently been to:

a) The US captures a whole bunch of people;
b) It splits them arbitrarily into POW (e.g. Afghan soldiers), and criminals (e.g. people who have committed the crime of terrorism)
c) It holds (indefinitely) those it has identified as criminals, but doesn't know what to do with them, as, to quote moki-

what exactly would you do with these people? Send them back to their native countries? Unleash a bunch of militant terrorists back into the wild? Somehow, that doesn't seem like the most responsible thing to do, does it?

that is what law and convention are for, it is so that you or I, or any other layman, doesn't have to try and figure out 'what should be done'.

As Troll has so eloquently noted, the US path should have been clear - it chose not to follow that path and got itself in a tizzy. The US has now, by disregarding the laws and conventions that govern these things, got itself into a position where laws and conventions don't help. The only surprise is that they didn't appear to see this issue coming.

[Troll]

Originally posted by SimeyTheLimey:
These prisoners, or at least the worst of them, will be held until the end of hostilities in the war on terror. I.e a long time. But I don't think there is much appetite to execute them.

So, what you're saying is that these guys are Prisoners of the War on Terror.

What is the War on Terror? Who decides when it has ended? Who is it being fought against?

Those questions have to be answered if you want to apply the Geneva Conventions to the War on Terror, if you want to deem these guys POW's of that war.

EDIT: Oh, and in the interim, you might want to give them the rights they are entitled to under the Conventions.

[Troll]

Originally posted by christ:
But the US approach has apparently been to:

a) The US captures a whole bunch of people;
b) It splits them arbitrarily into POW (e.g. Afghan soldiers), and criminals (e.g. people who have committed the crime of terrorism)
c) It holds (indefinitely) those it has identified as criminals, but doesn't know what to do with them, as, to quote moki-

It doesn't even do that. It's approach has been simply to capture a whole lot of people, do no triage at all and hold them indefinitely.

[Wiskedjak]

Originally posted by SimeyTheLimey:
The default under the GC is that they simply be held until the end of hostilities and then released.

What, exactly, defines the "end of hostilities" in this case?

[Spliffdaddy]

If we're allowed to execute the Guantanamo Bay 'detainees' - then why haven't we?

Why don't we simply line 'em all up and shoot 'em dead?

Besides, who was the dumbass that spent our tax dollars hauling them halfway across the world to a base in Cuba? Why weren't they simply a few hundred more battlefield casualties?

America is ruthless, right?

Isn't that what you've been saying?

We kill thousands of innocent civilians for oil, so it stands to reason we wouldn't hesitate to kill a couple hundred combatants.

So why haven't we?

Come on, peaceniks, answer THAT question.

I double dog dare ya.

[Troll]

Originally posted by Spliffdaddy:
Come on, peaceniks, answer THAT question.

I double dog dare ya.

I can have two guesses at that one:

1) Because it's Bush's regime that is evil not Americans themselves or even their soldiers. Soldiers don't want to kill people who have their hands up which presents the evil ones with a dilemma.

2) Because the regime is Doctor Evil, it's the boss, needs the innnnfooo. Hasn't the US been bragging about how much information the Guantanamo detainees have been giving them? Corpses don't spill the beans much.

[SimeyTheLimey]

Originally posted by Troll:
The Geneva Conventions DO NOT require that people "stand trial as combatants." What nonsense! The only trials the Geneva Conventions envisage are those to determine whether or not a prisoner is a POW. If what you're trying to say is that these guys are war criminals then why the hell haven't they been charged ... in nearly two years? That's the whole freakin point here.

Troll: take a look at Chapter III, Judicial Proceedings, Articles 99 through 108 of the Geneva Convention Relative to the Treatment of Prisoners. Those articles spell out the procedures for trials of POWs being tried for war crimes, or for crimes committed while prisoners. You are confusing those procedured with the Article 5 procedures for determining status under Article 4.

As I said above, I doubt there will be many trials for war crimes. They could be tried, but if they were, they would have to be real trials which would mean a substantial chance you would start hanging al-Queda members. The US doesn't want to do that. So the response is to keep them locked up for the duration of hostilities as regular POWs. Hostilities in the war on terror are still ongoing -- al-Queda and its allies are still active groups. Therefore, the prisoners stay in Gitmo. Upon cessation of active hostilities by terrorist organizations, the untried POWs should then be released as required by Article 118. But they don't have to be released or tried until that time.

[Troll]

Originally posted by SimeyTheLimey:
Troll: take a look at Chapter III, Judicial Proceedings, Articles 99 through 108 of the Geneva Convention Relative to the Treatment of Prisoners. Those articles spell out the procedures for trials of POWs being tried for war crimes, or for crimes committed while prisoners. You are confusing those procedured with the Article 5 procedures for determining status under Article 4.

First off, POW's aren't tried for war crimes. Someone accused of a war crime is not entitled to POW status. They are not POW's.

Second, as I said before, the people that have been captured have to be split into at least 3 categories:

1) POW's - who get released at the end of the war;
2) War criminals - who get a trial;
3) Other criminals - who also get a trial.

I never denied that category 2 get a trial under the Geneva Conventions. No confusion on this end of the ether. BUT, there has to be a determination of whether a person is a POW or not before you can try them for crimes and you have to at least charge them with war crimes. You're making out as if these people are POW's, and accused war criminals all at the same time which is an impossibility. Since the only conflict that the law recognises (the Afghan war) is over, all the POW's have to be released. Simple as that.

Originally posted by SimeyTheLimey:
Hostilities in the war on terror are still ongoing -- al-Queda and its allies are still active groups. Therefore, the prisoners stay in Gitmo. Upon cessation of active hostilities by terrorist organizations, the untried POWs should then be released as required by Article 118. But they don't have to be released or tried until that time.

Ah, so the War on Terror is apparently a global war against Al Qaeda. Well then at the very least, do we not need to determine which of the guys in Guantanamo are members of Al Qaeda?

I'm sorry but your argument does not make sense. First off, as I've said before "Terror" is a noun. You can't use guns against an emotion. Second, under this argument, the US had no right to even capture a single Afghan soldier since there was no war against Afghanistan; the war was against terror. Alternatively, it was fighting a war within a war, in which case, the US needed to determine which were captured in the larger WOT and which in the Afghan war and release those captured in the war within a war. Is it just that the US is too lazy to do the triage??

I don't know why you're trying to do so much logical gymnastics. It's simple really. There is a framework within which these guys should have been dealt with. The US failed to deal with them properly and it is outrageous that it continues to violate international law, humanitarian law and the very fabric of the societal structure it claims to be magnanimously offering the rest of the world down the barrel of an M-16.

[SimeyTheLimey]

Originally posted by Troll:
First off, POW's aren't tried for war crimes. Someone accused of a war crime is not entitled to POW status. They are not POW's.

No. Sorry, that is just plain wrong. POWs can be tried for their war crimes if they have committed them. Read Chapter III of the Geneva convention. It sets out the procedures in great detail.

Secondly, of course a POW accused of war crimes is entitled to POW status. The GC says quite clearly that a presumption of innocence standard applies.

[Troll]

Originally posted by SimeyTheLimey:
Secondly, of course a POW accused of war crimes is entitled to POW status. The GC says quite clearly that a presumption of innocence standard applies.

So, someone accused of a war crime has to be released at the end of hostilities? News to me...

[Spliffdaddy]

So let's get on with the trials.

The peaceniks are right. We need to hurry up and render some justice.

[voodoo]

Originally posted by SimeyTheLimey:
No. Sorry, that is just plain wrong. POWs can be tried for their war crimes if they have committed them. Read Chapter III of the Geneva convention. It sets out the procedures in great detail.

Secondly, of course a POW accused of war crimes is entitled to POW status. The GC says quite clearly that a presumption of innocence standard applies.

Chapter III

HYGIENE AND MEDICAL ATTENTION

Article 29

The Detaining Power shall be bound to take all sanitary measures necessary to ensure the cleanliness and healthfulness of camps and to prevent epidemics.

Prisoners of war shall have for their use, day and night, conveniences which conform to the rules of hygiene and are maintained in a constant state of cleanliness. In any camps in which women prisoners of war are accommodated, separate conveniences shall be provided for them.

Also, apart from the baths and showers with which the camps shall be furnished, prisoners of war shall be provided with sufficient water and soap for their personal toilet and for washing their personal laundry; the necessary installations, facilities and time shall be granted them for that purpose.

Article 30

Every camp shall have an adequate infirmary where prisoners of war may have the attention they require, as well as appropriate diet. Isolation wards shall, if necessary, be set aside for cases of contagious or mental disease.

Prisoners of war suffering from serious disease, or whose condition necessitates special treatment, a surgical operation or hospital care, must be admitted to any military or civilian medical unit where such treatment can be given, even if their repatriation is contemplated in the near future. Special facilities shall be afforded for the care to be given to the disabled, in particular to the blind, and for their rehabilitation, pending repatriation.

Prisoners of war shall have the attention, preferably, of medical personnel of the Power on which they depend and, if possible, of their nationality.

Prisoners of war may not be prevented from presenting themselves to the medical authorities for examination. The detaining authorities shall, upon request, issue to every prisoner who has undergone treatment, an official certificate indicating the nature of his illness or injury, and the duration and kind of treatment received. A duplicate of this certificate shall be forwarded to the Central Prisoners of War Agency.

The costs of treatment, including those of any apparatus necessary for the maintenance of prisoners of war in good health, particularly dentures and other artificial appliances, and spectacles, shall be borne by the Detaining Power.

Article 31

Medical inspections of prisoners of war shall be held at least once a month. They shall include the checking and the recording of the weight of each prisoner of war. Their purpose shall be, in particular, to supervise the general state of health, nutrition and cleanliness of prisoners and to detect contagious diseases, especially tuberculosis, malaria and venereal disease. For this purpose the most efficient methods available shall be employed, e.g. periodic mass miniature radiography for the early detection of tuberculosis.

Article 32

Prisoners of war who, though not attached to the medical service of their armed forces, are physicians, surgeons, dentists, nurses or medical orderlies, may be required by the Detaining Power to exercise their medical functions in the interests of prisoners of war dependent on the same Power. In that case they shall continue to be prisoners of war, but shall receive the same treatment as corresponding medical personnel retained by the Detaining Power. They shall be exempted from any other work under Article 49.

You must be talking about Chapter III SECTION VI??! on PENAL AND DISCIPLINARY SANCTIONS?

THANKS FOR NOTHING POINTDEXTER

(funny on so many levels )

[SimeyTheLimey]

Originally posted by voodoo:
Chapter III

HYGIENE AND MEDICAL ATTENTION

Article 29

The text I have in front of me says Cp. III covers the articles I was talking about. Articles 99 to 108 inclusive.

[Troll]

Let's just nip this in the bud shall we. Before it becomes another 7 page legal debate.

I cannot see any justification in keeping these people under these conditions. I think it is a complete and utter disgrace and completely hypocritical for the US to behave in this way and then have the gall to criticise others like Iraq for its treatment of POW's or anyone else. There is a process for dealing with these people and it hasn't been followed.

This really bugs me if for no other reason than the following simple reason. That I might have been walking through Karachi during the Afghan war and someone that I pissed off at some point may have told someone esle that I was a terrorist. I may have been carted off to Guantanamo and I might be rotting there right now, being maltreated, without knowing why I am there or having access to anyone who can help me. I might have been a soldier in Afghanistan. Just a regular soldier who did nothing but defend his country when it became the playing field for the War on Terror (actually the War in Afghanistan was waged under UN auspices but that's another issue). And I might have been carted off to Guantanamo in that capacity and be rotting there too. It's very easy to paint them all terrorists ... until they paint you!

[Troll]

Originally posted by SimeyTheLimey:
The text I have in front of me says Cp. III covers the articles I was talking about. Articles 99 to 108 inclusive.

Perhaps because you said the Geneva Convention and failed to specify which one ...

[SimeyTheLimey]

Originally posted by Troll:
So, someone accused of a war crime has to be released at the end of hostilities? News to me...

No, of course not. They can be tried as war criminals. If you are talking about jus cogens (and I assume you agree we are) then there is no statute of limitations anyway. Nor any jurisdictional bar.

No, it is simply that POW status is not mutually exclusive with being an accused war criminal. Think about it. If it were otherwise, no war criminal who is captured could be indicted or tried. At a minimum, there must be at least 2 weeks to prepare the defense, so there is always a period between capture and indictment.

[Spliffdaddy]

Well, Troll,

You would be one of a small fraction of gitmo detainees whose life would improve after having stood trial.

A lot of the others are FAR better off waiting for "the end of hostilities" than for the end of a rope.

Careful what you wish for, peaceniks.

Dubya don't want to kill 'em, but you sure do.

[voodoo]

Originally posted by SimeyTheLimey:
The text I have in front of me says Cp. III covers the articles I was talking about. Articles 99 to 108 inclusive.

The text I have says

Section VI
RELATIONS BETWEEN PRISONERS OF WAR AND THE AUTHORITIES

Chapter III
PENAL AND DISCIPLINARY SANCTIONS

Part III
Judicial proceedings

This spans articles 99 to 108 inclusive.

[SimeyTheLimey]

Originally posted by Troll:
Perhaps because you said the Geneva Convention and failed to specify which one ...

I did. Geneva COnvention Relative to the Treatment of Prisoners of War (III). Concluded August 12, 1949. That one.

[voodoo]

Oh and by the way:

Article 103

Judicial investigations relating to a prisoner of war shall be conducted as rapidly as circumstances permit and so that his trial shall take place as soon as possible. A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security. In no circumstances shall this confinement exceed three months.

Any period spent by a prisoner of war in confinement awaiting trial shall be deducted from any sentence of imprisonment passed upon him and taken into account in fixing any penalty.

The provisions of Articles 97 and 98 of this Chapter shall apply to a prisoner of war whilst in confinement awaiting trial.

****

my emphasis added.

[SimeyTheLimey]

Originally posted by voodoo:
Oh and by the way:

Article 103

Judicial investigations relating to a prisoner of war shall be conducted as rapidly as circumstances permit and so that his trial shall take place as soon as possible. A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security. In no circumstances shall this confinement exceed three months.

Any period spent by a prisoner of war in confinement awaiting trial shall be deducted from any sentence of imprisonment passed upon him and taken into account in fixing any penalty.

The provisions of Articles 97 and 98 of this Chapter shall apply to a prisoner of war whilst in confinement awaiting trial.

****

my emphasis added.

That's confinement within the POW camp. If you look elsewhere in the GC you generally do not put POWs in close confinement. That provision above refers to the kind of situation where a prisoner is picked out of the general population of POWs and confined separately prior to trial. The idea is that the prisoner has a right to a speedy trial. If at the end of the trial, the POW is found innocent of war crimes, he goes back to the general POW population until the end of hostilities. If he's convicted, he receives his punishment -- prison, execution, etc. Obviously, if the war ends while he is serving time for his crime, he still has to complete the sentence. But if the war isn't over, he is still a POW who would be held until the end of the war in the same way as any other POW.

Them's the rules, Voodoo. And if you think they are harsh, you should consider what the rule was before the GC. Mostly, prisoners were just killed summarily. That's why this is called humanitarian law.