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From: Boyle, Francis
Sent: Friday, December 07, 2001 8:38 AM
To: 'AALS Section on Minority Grps. mailing list' (E-mail)
Subject: Third Geneva Convention v Bush's Kangaroo Courts
Of course what they did not report is that i said flat out that there is no way the Bush/Gonzales Kangaroo Courts can be justified under the Third Geneva Convention.They also did not report that our refusal to treat captured Taliban and Al Qaeda Forces in accordance with the Third Geneva Convention opens up US Armed Forces in Afghanistan to reprisals. fab.
US ponders amnesty, POW issues for high-ranking Taliban
By Anthony Shadid, Globe Staff, 12/7/2001
''There are going to be lawyers working around the clock
trying to sort out all the implications and all the consequences of all the
choices that need to be made,'' said Paula Newberg, an expert on Central and
South Asia and a special adviser to the UN Foundation. Omar was offered amnesty by Afghanistan's provisional leader
on the condition that he ''must denounce terrorism.'' Even without amnesty,
legal experts suggested, Omar would have to be granted rights under the Geneva
Conventions as a prisoner of war if he fell into US custody. The fate of his followers, meanwhile, was the subject of
intense diplomacy. Tribal leaders promised amnesty to the ''common'' Afghan
fighters in the Taliban. For rank-and-file Arab fighters, Libya suggested an
initiative that would make possible their return to their respective countries -
a proposal the US has flatly rejected since the beginning of the
campaign. US officials declined to comment on ''hypotheticals,'' but
Defense Secretary Donald Rumsfeld insisted that the US would pursue its
previously expressed desire for some form of punishment for Omar. ''We have expressed very forcefully to all of the so-called
opposition leaders, who have been opposing the Taliban, what our principal goals
are and what our views are,'' he said. Implicit in those views was a warning. ''Our cooperation and assistance with those poeple,'' he
said, referring to Afghanistan's new leaders, ''would clearly take a turn south
if something were to be done with respect to the senior people in that situation
that was inconsistent with what I've said.'' In a sign of the possible legal difficulties, though, he
declined to say whether the US would insist on taking custody of Omar and left
open the door for Afghan authorities to take their own action against the
Taliban leader. That appeared to be a retreat from an earlier position. Just
last week, Rumsfeld said the US had ''unambiguously'' told anti-Taliban
commanders that it wanted high-ranking prisoners turned over to US
authorities. By not having Taliban leaders in American hands, the US
avoids the problem of how to detain and try large number of accused terrorists -
something it is not prepared to handle anytime soon. It also exempts the US
military from having to abide by its own rules of conduct for prisoners of
war. Rules in the US Army's field manual, for instance, guarantee
POWs legal counsel in any trial, the right to call witnesses, the right to an
interpreter, and the right to appeal. The Defense Department is still working to define the
guidelines on how the military tribunals announced by President Bush would
operate, and US officials have yet to decide who would preside and where the
trials would be held. Among possible venues are Guam, the US naval base at
Guantanamo Bay in Cuba, or a closer locale like Pakistan or an aircraft
carrier. White House counsel Albert Gonzales said last week the
United States is also considering trying senior leaders before an international
court in which judges from allied countries could take part. But he acknowledged
that allies' objections to the death penalty might make that option
difficult. A State Department official said that even now, it was still
unclear whether those detained would be treated as POWs. ''Are they a standard POW or are they something else? Are
they a criminal?'' said the official, speaking on condition of
anonymity. Added a Defense Department official: ''The issue is still
being kicked around. I don't think anybody's made a determination on
that.'' The International Committee of the Red Cross is treating
those detained as POWs, with rights guaranteed under the Geneva Conventions.
That assessment is shared by human rights activists and international law
experts. ''If this man surrenders to US forces, he's a prisoner of
war. If they turn him over to US armed forces, he's still a prisoner of war,''
said Francis Boyle, an international law expert at the University of Illinois
who has argued before the International Court of Justice. ''Even if they have
committed war crimes, they are entitled to be treated as POWs.'' Boyle said there was precedent for such a classification.
The US military refused at first to treat North Vietnamese guerrillas in the
Vietnam War as POWs but later relented, fearful for reprisals against US
soldiers. Manuel Noriega, the Panamanian strongman ousted in 1989 and put on
trial in the US for drug trafficking, was eventually granted rights as a
POW. ''The laws of war are not gray. It is crystal here,'' Boyle
said. Rumsfeld suggested that the US would not be opposed to
seeing Al Qaeda leaders tried in their own countries. Representative Darrell
Issa, a Republican from California who held talks with Egyptian and other Arab
officials during a Middle East tour, said he expected such a practice to
''become a pattern.'' ''We don't want to receive individuals in many cases,'' he
said. That was the way the high-profile case of Rifai Ahmed Taha
was handled. Taha, a senior lieutenant of bin Laden, was taken into custody in
Syria and sent to his native Egypt, where he had been convicted in
absentia. Libya's move yesterday to hasten the departure of thousands
of Arabs fighting with the Taliban came from the son of Libyan leader Moammar
Qadhafi, who planned to travel to Pakistan yesterday with a proposal to gather
Arab fighters in Quetta, then facilitate their return to their own countries.
Some of those countries have indicated they will grant them amnesty, according
to Al Hayat, an Arabic newspaper. Hamid Karzai, the leader of Afghanistan's incoming interim
government, said those foreign fighters must be tried, though he left unclear
under what circumstances. The Afghan rank-and-file, he said, would be granted
amnesty once they disarmed under an accord for surrendering Kandahar. The former Taliban fighters, who are Pushtuns like Karzai,
could prove a key source of support for his administration. Indira A.R. Lakshmanan of the Globe Staff contributed to
this report from Islamabad.ASHINGTON - The
Bush administration's objections to amnesty for Mullah Mohammed Omar - the
Taliban leader who gave safe haven to Osama bin Laden and oversaw the imposition
of puritanical Islamic law - hint at the difficulties as the conflict moves from
battlefield to legal and diplomatic minefield.
This story ran on page A44 of the Boston Globe on
12/7/2001.
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