(Brian Allardice) wrote in message .ca...

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.

Well, G (III) doesn't seem to cover the rights of people who don't
qualify for its protections (if it does I can't find it), whereas G
(IV) does. Therefore, if you are building a case that people don't get
protection under either, IV would be where to start for how to treat
them.

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...

Yes, I have been trying to avoid rushing to judgement on this, because
there is so much that we simply don't know. Most newspapers don't seem
to be pushing for the sort of information that interests me (how were
these men caught? what were they doing when they were caught?
situation? who was with them? who turned them in? etc. etc. etc.) Much
more fun to write editorials debating whether Iraq is a quagmire (it
isn't yet, though it might become so in the future, IMO) or to write
editorials arguing over whether WMD's will be found (I think evidence
of a program will be found, eventually, but it certainly will not have
been of the 'ready to go in 30 minutes' variety we were told before
the war). Actual research in an unpleasant country sounds like its
hard work.

But that is only to determine their status under Article 4, not a trial for war
crimes.

Yes, but if they don't get the protections of GC (III) then they fall
into the grey area (one could say an area just as grey as they are
now, but sanctioned under international law); in many ways I would
think that their status as POW's or not would be the more important to
decide.

As you note, POW's do not generally face trial, they are merely
interned until the end of hostilities

And at the end of hostilities, if need be, they got tried (in WW2).
Going to be interesting to see how they handle that in this war.
Incidentally, many civilians were detained before the war was over and
then tried afterwards; men like the civil administrator of Poland, for
example, who was hanged at Nurmemburg (after a trial). If holding them
was justified, then holding these men would seem to be equally
justified.

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

I'm not thrilled with it either, but it seems to be what the GC's say.
Either there has been this loophole since the GC's were written or I'm
misreading it. I don't see any required process to decide that someone
does not fall under G III or G IV. In fact, G IV spefically legalizes
holding people under suspicion who then forfeit rights, so it seems
like its in the occupier's favor on this subject. (Which makes sense
because the people writing GC's in 1949 were representatives of
countries more likely to occupy then be occupied. The 1977 protocols
were written by representatives of countries more likely to have
resistence movements then face them, so they are written to grant them
vastly more protection, placing the burden entirely on the organized
force.)

I would be inclined to agree but I don't know enough about how AQ operated in
Afghanistan to be sure.

Agreed. All the journalists attention has been distracted by other
things, and so they aren't investigating what was happening on the tip
of the spear in the past. Pity.

Even if 4.A.2 fails 4.A.6 might succeed. Enough to
create a doubt, I would think.

Most AQ people were not natives; they came to Afghanistan to be
trained and inspired by Osama Bin Laden et al. In exchange for letting
them use Taliban controlled areas as a base AQ provided troops to be
the shock troops for Taliban operations. There actually seems to be
have been quite a lot of native Afghan/"tourist" AQ friction, as the
AQ looked down on the Afghans as dirty bumpkins and the natural
xenophobia of the Afghans got triggered by the AQ's. I don't think
that (6) can apply to AQ at all (the men who carried out the attack on
the WTC and Pentagon seem to have been a fair cross section of
'typical AQ' groups; AQ has some people who are US, UK, German, Kenyan
citizenship etc, but they do not seem to be as trusted or as numerous
as the Arab members).

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

Oh really? Should tell John McCain that, he'd be glad to hear that
PoW's don't get put into solitary confinement. Would probably make his
day. Or tell all the PoW's in the first Iraq War (in the 2nd they were
better treated because many Iraqis understood their importance as
bargaining chips).

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

Depends on their chain of command and uniform. In pictures (stock
footage?) I saw on the news and in papers I saw no mark that
distinighished them, but I don't know, which was why I tried to be
vague about it. No mark, no protection, but they might have done
something about that. The Taliban in general could not get
justification under (6), because they clearly were not in advance of
an occupation force, though individuals might claim to fall under that
provision.

"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."

Which again goes back to the very interesting question of whether they
should get any benefits from the GC (III). I don't think its a cut and
dried issue that they should have any; I'd like to see it dealt with
on an individual basis, out in public, but I can understand why the
USG is reluctant to reveal what it knows in public about the various
men it has detained if it doesn't have to.

What AQ has done is expose to us how out-of-date many things are, from
international treaties (which seem to need a rewrite to take into
account all the various NGO groups and rebel factions that are
becoming the dominant mode of conflict) to American intelligence.
Interesting lessons.

Chris Manteuffel