In article ,
says...

Geneva (IV)-1949

Art. 5 ....

...In each case, such persons shall nevertheless be treated with humanity
and, in case of trial, shall not be deprived of the rights of fair and
regular trial prescribed by the present Convention. They shall also be
granted the full rights and privileges of a protected person under the
present Convention at the earliest date consistent with the security
of the State or Occupying Power, as the case may be.
/end quote

They must be "treated with humanity" but from my reading it seems to
be that *if* you try them, the trials must be fair. I don't see any
requirement that they be tried. Indeed, they specifically make
reference to holding someone based on on suspicion and then they are
"regarded as having forfeited rights of communication". Fairly broad
powers there, enshrined under Geneva-IV (1949), from my readings it in
fact seems to justify what's going on at Gitmo completely (if we
assume that the men at Gitmo don't qualify for protection under either
GC III or GC IV).

But also be granted full protection as soon as possible "consistent with the
security of the State or Occupying Power, as the case may be." Vague, to be
sure... Note also a trial not merely fair but "regular" (whatever that may be
as well - but it doesn't sound like a special tribunal to me) Of course G-IV
applies to "Civilian Persons" and would not apply to the Taliban forces; as to
AQ see below.

Another catch is that we don't really know what is going on at Guantanamo, but
if what is going on in Afghanistan ('death by blunt force trauma' as it was
charmingly put) and in Iraq as reported today by Amnesty, one might reasonably
await further data before justifying anything...

That brings up Geneva III-1949, Article 5.

"Should any doubt arise as to whether persons, having committed a
belligerent act and having fallen into the hands of the enemy, belong
to any of the categories enumerated in Article 4, such persons shall
enjoy the protection of the present Convention until such time as
their status has been determined by a competent tribunal."

Again, no right to a trial that I can see, only a "competant
tribunal".

But that is only to determine their status under Article 4, not a trial for war
crimes. As you note, POW's do not generally face trial, they are merely
interned until the end of hostilities

The US has started releasing men from Gitmo, admitting that
they had been caught up in the dragnet by mistake, so there is some of
this going on; note also that I don't believe they say that the
tribunal (for deciding whether they meet GC III 4.2) must be an open
one. And you don't need a tribunal to declare someone not covered by
III or IV; you only need the tribunal in cases where there is doubt.

I would be very wary of that reading... so should all military men...

The US seems to be loudly protesting that the men aren't entitled to
protection under the GC's, but in all actuality most of the AQ men
wouldn't get any protection anyway (Geneva III (1949) Article 4
section 2 would be the standards that they would have to meet, and
from my knowledge of AQ very few of them would meet them).

I would be inclined to agree but I don't know enough about how AQ operated in
Afghanistan to be sure. Even if 4.A.2 fails 4.A.6 might succeed. Enough to
create a doubt, I would think.

I don't
think the way the men in the pens are treated would be any different

well, they wouldn't be in pens, for a start...

if the US were to announce that they were to be held under the GC's,
because so many men wouldn't qualify as POW's, not meeting the
requirements of GC (III) 4.2 (which are fairly strict, requiring a
chain-of-command and a mark recoginzable at a distance (distinct from
merely carrying a gun)). The AQ men almost certainly wouldn't, the
Taliban men might, I don't know enough about how the Taliban operated
to know.

The Taliban would seem to fall very clearly under 4.A.1 - hence covered.

Despite all the talk of tribunals &c GC III seems to deal only with those acts
committed while in captivity, except for

"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."

Now how to interpret that one....?

Cheers,
dba





Now, giving the British citizens to Britain would be the smart move to
help Tony Blair... it seems so obvious that I don't really know why
they aren't.

Chris Manteuffel