US detainees to get Geneva rights

[Elrohir]

Well, my friend, the killing "per se" is wrong (notice that I use "rong", not "immoral"), but it can be excused by circunstances. Welcome to the wonderful world of moral relativity - which is, by the way, the stance I defend.

But by "wrong" don't you mean that it is wrong, morally or ethically speaking? In what other way could it be wrong? If an action is morally wrong, then it is an immoral action. I'm afraid I don't understand this disctinction of yours, just as you didn't understand mine.

I'd rather not live in a world of moral relativism, thank you very much. Far to often it leads to dictatorships or mass murder. (I'm not saying you holding that view would lead to those things, of course, just that a country that holds that view often comes to that.)

Careful here. Legitimate defense is not an institute applicable exclusivelly to your own self, but also to others unfairly endangered in your surrounds. My regular reaction would be to warn the authorities of the murder attempt that I knew. If you but me in time pressure so that I don't have means to warn authorities, and have to act on my own, than I'm already covered by "legitimate defense" - and, still, I'd try using non-lethal force - a good hit in the head to render him unconscious, a shot in the leg. Killing him would be my absolute last resource.

Regards .

But you would kill him, if it was impossible to alert the Secret Service, or to wound him? This is a hypothetical question; it doesn't have to be realistic.

I'm saying that the new Iraqi government has as much legitimacy as the Vichy regime.

How do you come to this conclusion? Correct me if I'm wrong, but wasn't the Vichy government effectively a dictatorship by Petain, propped up by the Nazi's? It wasn't a democratic government - the government in Iraq was democratically elected, and is indeed a democratic government. Yes, both are governments born after the overthrowing of the old, but the types of government are very different.

 

[FredLC]

But by "wrong" don't you mean that it is wrong, morally or ethically speaking? In what other way could it be wrong? If an action is morally wrong, then it is an immoral action. I'm afraid I don't understand this disctinction of yours, just as you didn't understand mine.

That's right, wrong morally and ethically. Look, my point here is simply that the event of a muder, whatever murder, must always be presumed morally wrong, until the examination of evidence demonstrates that it falls within a good excuse.

I'd rather not live in a world of moral relativism, thank you very much. Far to often it leads to dictatorships or mass murder. (I'm not saying you holding that view would lead to those things, of course, just that a country that holds that view often comes to that.)

I hate to be the bearer of bad news, but you live in one as it is. That is what you get when you can't manage to find two people who believe in moral objectivity together, and have them agree on what are the terms of that supposed objective thing.

BTW, IMHO, it's exactly when someone, objectivist or relativist, turns his/her own "morality" into an "objective" thing, that can't be challenged, and find out he is willing to destroy dissent, that dictatorships and mass murders go on.

But you would kill him, if it was impossible to alert the Secret Service, or to wound him? This is a hypothetical question; it doesn't have to be realistic.

Yup; in that case, under the "legitimate defense" excuse.

Regards .

 

[El_Machinae]

So then murder and killing are not always the same!

 

[nonconformist]

How do you come to this conclusion? Correct me if I'm wrong, but wasn't the Vichy government effectively a dictatorship by Petain, propped up by the Nazi's? It wasn't a democratic government - the government in Iraq was democratically elected, and is indeed a democratic government. Yes, both are governments born after the overthrowing of the old, but the types of government are very different.

A democracy is where you can vote without fear of reprocussion.
In Iraq, this is not the case. It's a case of:

"Can I leave my house to vote, without getting shot/blown up/kidnapped executed by Americans/Shi'ites/Sunnis/Communists/Al Quaeda/Kurds/Ba'athists (so no-go in hotbeds of activity), without fear of reprocussion, in the future/now/tomorrow from Shi'ites/Americans/Provisional Government/Sunnis/Ba'athists/A Quaeda/Communists/Islamists/Iran?"

And the answer is "noone knows" and "You might as well rename Iraq as 'Kurdistan/Sunni Triangle/Iran/Hell'".

 

[nonconformist]

So then murder and killing are not always the same!

'Course not. We got God. They only got Allah.

 

[MobBoss]

I'm saying that the new Iraqi government has as much legitimacy as the Vichy regime.

Vastly more actually as there is not a "free Iraq" government ala the free french government in exile. Also, the UN itself has recognized the new Iraqi Government as legit, something never done to the Vichy Regime in any way, shape or form.

 

[CaptainF]

Oh don't worry, we'll figure out a way to break the law somehow. The American way that is!

 

[MobBoss]

Oh don't worry, we'll figure out a way to break the law somehow. The American way that is!

Sigh. So young and so negative. To me, this is just proof of the opposite...that situations are indeed looked at and corrected when needed. It may not happen overnight, or even a few years sometimes, but it usually happens.

 

[nonconformist]

Vastly more actually as there is not a "free Iraq" government ala the free french government in exile. Also, the UN itself has recognized the new Iraqi Government as legit, something never done to the Vichy Regime in any way, shape or form.

Well, duh. the UN in its current form wasn't established until after WWII.

 

[El_Machinae]

'Course not. We got God. They only got Allah.

That's pretty well mocking my point; and I'm not even taking a side in this. I'm just pointing out that there can be a distinction between murder and killing, morally.

Sadly, it's such a thin line that it's almost impossible to walk it without making drastic errors. If you don't use sufficient force when defending yourself, you're screwed. If you use too much force, you've crossed the line.

 

[Kyriakos]

It should be realised that any person who has killed, will have to find a way to live with it. Ussually those people lose forever the ability to be normally sensitive, and thus are being relegated to quasi-subhuman level.

I can see why one would kill someone if he was truelly threatened, and did not in reality mean to kill but only incapacitate the other person of doing harm to him.
However, from a legal viewpoint, there is the idea of 'murder in cold blood' as opposed to being murderous while highly emotional. This, in reality, is not a perfect distinction though, since some groups of people can be expected to be acting on strong emotions, and others on more calculative ones. Furthermore human nature is not against the idea of murder, and obviously everyone carries in his dna memories of very darker times.

Imo what should be dissallowed, at any rate, is mass murder, as the one witnessed in the war in Iraq, Afganistan, and now in Lebanon and Palestine. This sort of murder is funded by very poor logic, and it can be combatted, unlike the murders commited in otherwise peacefull cities.

 

[Leonel]

Well, duh. the UN in its current form wasn't established until after WWII.

Well there WAS the League of Nations. Although how much activity it during WWII is left to be said.

 

[JohnRM]

http://news.bbc.co.uk/2/hi/americas/5169600.stm

Great! So, now we can immediately execute any plain-clothed combatant.

 

[FredLC]

FredLC: You never cited me a law, still waiting.

Ok, just finished my (admittedly sketchy – I don’t have the time or inclination for a REAL research of the theme, at least for the purpose of internet debating) investigation.

First, I must say that I have found several opinative articles about the matter. The substance of these articles varied from virulent disagreement from the US to moderate justifying of it’s conduct regarding this declaration of war. I must point out that I found no unconditional agreement with US of A handling of the strike on Iraq, at least in regards to legal analysis – but also, that the most reasoned opinions mentioned that it’s call for a “preemptive defense” is not altogether lacking on doctrinaire support – because the notion of preventing an aggression does exist, known as “the Webster Doctrine" – reference to the former US Secretary of Defense Daniel Webster – but it is also clear that current application is just an somewhat abusive version of it, for it could only be evoked in the stance of an executed or imminent strike (both of these circumstances - articles were unanimous – Iraq didn’t provide).

Anyway, I have decided to steer clear from opinative articles, fearing that “bias” could be evoked to disqualify them (though some were of excellent quality – all obviously biased articles, either way, I have dismissed myself). Anyway, as an exception to that directive, I’ll quote this one article from World Press, which I consider to be quite consistent regarding the theme.

Passed this, I decided to verify the validity of both the war handling on Iraq and the detainee handling by the US. So lemme go through these topics one by one:

Regarding the declaration of war by the US, I first have to bring up the Charter of the United Nations. These are provisions from Chapter VII, which handles “action with respect to threats to the peace, breaches of the peace, and acts of aggression”:

First, legal installment brings the capacity to take decisions regarding the maintenance of global peace to the Security Council, not to any of it’s members:

Article 39: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 41: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Than it handles how the decisions taken by the Council (which includes resolution 1441) are to be enforced:

Article 48

1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.

2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

So, by deciding to go to that war, a measure which was not sanctioned by the Security Council, in a call made as an independent power, not by any means as a member of the council in the exercise of it’s functions in the appropriate international agencies which it participates, the US was, from the very start, in violation of the Charter – an international document that it have ratified, no less. This point of view is supported by the press release of the UN meeting subsequent to the beginning of the hostilities.

It does not end there. See, article 51– which line out the rudiments of preemptive defense, and grounds the possibility of unilateral action by a member of the UN – state that actions of these *defensive* war can only be carried out until the Security Council has taken measures necessary to maintain international peace and security. In entirety:

Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The reading of this article is evident, than, that both preemptive and unilateral action (meaning, the waging of military campaigns without sanction of the council) are only lawful when the threat is "instant, overwhelming, and leaving no choice of means, and no moment for deliberation" (coherently with Webster’s Doctrine) – again, conditions not met by the situation under our sight.

Being evident, than that the action taken is not in accordance with the international Charter of behavior of States, we have than to acknowledge that this is a war of aggression, hence, lawless. At least, under the criteria of the United Nations General Assembly Resolution 3314 (XXIX). Definition of Aggression:

Article I:

Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.

Explanatory note: In this Definition the term "State":

(a) Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations;

(b) Includes the concept of a "group of States" where appropriate.

Article 2:

The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.

Article 3:

Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,

(…)

By the way, from that resolution I also evoke a piece of the preamble, which is instrumental to this debate:

The General Assembly,


Basing itself on the fact that one of the fundamental purposes of the United Nations is to maintain international peace and security and to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace,


Recalling that the Security Council, in accordance with Article 39 of the Charter of the United Nations, shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security,

(…)

It is rather evident, under the light of these articles and explanations, that the invasion of Iraq was (is) an aggressive war, in violation of international uses and customs, and in direct breech of legislation (which I found much more polished and clear-cut than I actually expected).

With this behind, than, I shall look in the issue of the people arrested by the US:

I begin with an excerpt from the Universal Declaration of Human Rights:

Originally written in the Universal Declaration of Human Rights:

Article 6

Everyone has the right to recognition everywhere as a person before the law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11

1 – Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

2 – No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Than I proceed to evoking the Geneva Convention (convention III):

Art. 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(...)

(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.

(...)

Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

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.

Normally, I’d have deemed these as sufficient to prove that these imprisonments are in breech of legislation. However, last time I evoked them, I (much to my surprise), still found myself battling a battle of definitions as to whether these people are or not “illegal combatants”, and whether or not this category merits the rights of civilians, of other militaries, or simply no rights at all.

While I consider that an altogether impertinent questioning (either civilian or military or none of the above under the terms of Geneva, these still fall into the Universal Declaration of Human Rights, which also speaks against the frame of these imprisonments), I decided to dig a bit deeper, and it proved fruitful – for I found, in the Rome Statute the crystal-clear delivering of a few basic tenets of criminal law (which helps understand what labeling these people as an “un-ruled category” actually signifies under the light of law). Lemme quote:

Article 22 – Nullum crimen sine lege

1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.

2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.

3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

Article 23 – Nulla poena sine lege

A person convicted by the Court may be punished only in accordance with this Statute.

Article 24 – Non-retroactivity ratione personae


1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.

2. In the event of a change in the law applicable to a given case prior to a final judgment, the law more favorable to the person being investigated, prosecuted or convicted shall apply.

Ok, now, while this ought to angry most of the truly passionate defenders of Guantanamo Bay and other facilities of equal philosophy, these descriptions are actually very basic in the framing of criminal conduct, and mean, as should be obvious by now, that no matter how terrible are the actions “unlawful combatants” may have committed, if they truly were an un-ruled segment, than they could not be punished, for lack of a prior-existing law defining these actions as a crime.

Being un-ruled means, literally, that punishment is a legal impossibility – quite the contrary of the conclusion hoped by the defenders of the “illegal combatant” category, that expected that being without law meant that anything could be done to them without illegality. This is (was, since the SCOTUS already ruled exactly that) one of the dumbest theories I have ever seen being defended in the web, at least from the standpoint of anybody with legal training.

[that said, I must say that I don’t think that terrorists (or illegal combatants) should go unpunished if they did engage terror acts. AND I also agree they don’t fit the conditions of military framing. IMHO, terrorists fall within civilian legislature, and when plotting to kill people, should face a murder trial – like any other murderer would].

Still on this subject, as to whether war crimes were committed or not by the US government, I evoke the article 8 of the same Roman Statute:

Article 8 – War crimes:

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, "war crimes" means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(…)

(vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

As you can see, whether POWs or not, by imprisoning these people without granting them trials, an act objectively defined as a “war crime” was committed by the US government – and these, without even debating of whether some of the prisoners there were tortured or not (and without debating what constitutes torture, what would mean at least two “war crimes” going on).

So, Tulkas12, this is my homework, and I have done it. Ball is in your court now.

Regards .

 

[FredLC]

Well there WAS the League of Nations. Although how much activity it during WWII is left to be said.

Yup, there was. But you gotta know that the League of Nations was an effort posed by the states enemy of Germany, which emerged victorious from the First World War, and had an consistently anti-germanic attitude (understandably).

In fact, the difficulty from the winning powers to acknowledge the place of Germany in global economy and politics in the interval between wars have helped to precipitate the WWII, making the interval quite shorter.

Regards .

 

[Stylesjl]

FredLC i appluad you! That was one hell of a research task you did there. I bet nobody will match that and the people who disagree will probaly dismiss it with one sentence or two.

 

[nonconformist]

Well there WAS the League of Nations. Although how much activity it during WWII is left to be said.

Which the United States, Soviet Union, Germany and Jaspan (in other words, some of the big players) never joined, or left.