-Caveat Lector-
From
http://www.guardian.co.uk/comment/story/0,3604,632238,00.html
}}}>Begin
US doesn't have the right to decide who is or isn't a PoW
Ignore the Geneva convention and we put our own citizens in peril
Michael Byers
Monday January 14, 2002
The Guardian
Would you want your life to be in the hands of US secretary of
defence Donald Rumsfeld? Hundreds of captured Taliban and al-Qaida
fighters don't have a choice. Chained, manacled, hooded, even
sedated, their beards shorn off against their will, they are being
flown around the world to Guantanamo Bay, a century-old military
outpost seized during the Spanish-American war and subsequently
leased from Cuba by the US. There, they are being kept in tiny chain-
link outdoor cages, without mosquito repellent, where (their captors
assure us) they are likely to be rained upon.
Since Guantanamo Bay is technically foreign territory, the detainees have no rights
under the US constitution and cannot appeal to US federal courts. Any rights they
might have under international law have been firmly den
ied. According to Rumsfeld, the detainees "will be handled not as prisoners of war,
because they are not, but as unlawful combatants".
This unilateral determination of the detainees' status is highly convenient, since the
1949 Geneva convention on the treatment of prisoners of war stipulates that PoWs can
only be tried by "the same courts according to th
e same procedure as in the case of members of the armed forces of the detaining
power". The Pentagon clearly intends to prosecute at least some of the detainees in
special military commissions having looser rules of evide
nce and a lower burden of proof than regular military or civilian courts. This will
help to protect classified information, but also substantially increase the likelihood
of convictions. The rules of evidence and procedur
e for the military commissions will be issued later this month by none other than
Donald Rumsfeld.
The Geneva convention also makes it clear that it isn't for Rumsfeld to decide whether
the detainees are ordinary criminal suspects rather than PoWs. Anyone detained in the
course of an armed conflict is presumed to be a
PoW until a competent court or tribunal determines otherwise. The record shows that
those who negotiated the convention were intent on making it impossible for the
determination to be made by any single person.
Once in front of a court or tribunal, the Pentagon might argue that the Taliban were
not the government of Afghanistan and that their armed forces were not the armed
forces of a party to the convention. The problem here i
s that the convention is widely regarded as an accurate statement of customary
international law, unwritten rules binding on all. Even if the Taliban were not
formally a party to the convention, both they and the US would
still have to comply.
The Pentagon might also argue that al-Qaida members were not part of the Taliban's
regular armed forces. Traditionally, irregulars could only benefit from PoW status if
they wore identifiable insignia, which al-Qaida memb
ers seem not to have done. But the removal of the Taliban regime was justified on the
basis that al- Qaida and the Taliban were inextricably linked, a justification that
weakens the claim that the former are irregulars.
Moreover, the convention has to be interpreted in the context of modern international
conflicts, which share many of the aspects of civil wars and tend not to involve
professional soldiers on both sides. Since the convent
ion is designed to protect persons, not states, the guiding principle has to be the
furtherance of that protection. This principle is manifest in the presumption that
every detainee is a PoW until a competent court or tri
bunal determines otherwise.
This too is the position of the International Committee of the Red Cross, which plays
a supervisory role over the convention. The Red Cross and Amnesty International have
both expressed concerns over the treatment of the
detainees.
The authorities at Guantanamo Bay have prohibited journalists from filming the arrival
of the detainees on the basis that the convention stipulates PoWs "must at all times
be protected against insults and public curiosity
". The hypocrisy undermines the position on PoW status: you can't have your cake and
eat it.
Even if the detainees were not PoWs, they remain human beings with human rights.
Hooding, even temporarily, constitutes a violation of the 1984 convention against
torture and cruel, inhuman or degrading treatment. Apart f
rom causing unnecessary mental anguish, it prevents a detainee from identifying anyone
causing them harm. Forcefully shaving off their beards constitutes a violation of the
right to human dignity under the 1966 internatio
nal covenant on civil and political rights. Forcefully sedating even one detainee for
non-medical reasons violates international law. Although strict security arrangements
are important in dealing with potentially dangero
us individuals, none of these measures are necessary to achieving that goal. If human
rights are worth anything, they have to apply when governments are most tempted to
violate them.
There are many reasons why these and other violations are unacceptable. The rights of
the detainees are our rights as well. Yet international law can be modified as a
result of state behaviour. If we stand by while the ri
ghts of the detainees are undermined, we, as individuals, could lose.
British and American soldiers and aid workers operate around the world in conflict
zones dominated by quasi- irregular forces. The violations in Guantanamo Bay will
undermine the ability of our governments to ensure adequ
ate treatment the next time our fellow citizens are captured and held. Respecting the
presumption of PoW status and upholding the human rights of detainees today will help
to protect our people in future.
The US has occupied much of the moral high ground since September 11, and benefited
enormously from so doing. Widespread sympathy for the US has made it much easier to
freeze financial assets and secure the detention of s
uspects overseas, as well as secure intelligence sharing and military support. The
sympathy has also bolstered efforts to win the hearts and minds of ordinary people in
the Middle East, south Asia and elsewhere. That migh
t just have prevented further terrorist attacks.
Ignoring even some of the rights of those detained in Guantanamo Bay squanders this
intangible but invaluable asset, in return for nothing but the fleeting satisfaction
of early revenge. The detainees should be accorded f
ull treatment as PoWs and, if not released in due course, tried before regular
military or civilian courts - or even better, an ad hoc international tribunal. As the
world watches, vengeance is ours. But so, too, are civi
lised standards of treatment and justice.
� Michael Byers teaches international law at Duke University, North
Carolina. He is currently a visiting fellow at Keble College, Oxford.
[EMAIL PROTECTED]
Guardian Unlimited � Guardian Newspapers Limited 2002
End<{{{
~~~~~~~~~~~~~~~
Forwarded as information only; no endorsement to be presumed
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
In accordance with Title 17 U.S.C. section 107, this material
is distributed without charge or profit to those who have
expressed a prior interest in receiving this type of information
for non-profit research and educational purposes only.
+ + + + + + + + + + + + + + + + + + + + + + + + + + + + +
The only real voyage of discovery consists not in seeking
new landscapes but in having new eyes. -Marcel Proust
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
"Do not believe in anything simply because you have heard it. Do not believe
simply because it has been handed down for many generations. Do not
believe in anything simply because it is spoken and rumored by many. Do
not believe in anything simply because it is written in Holy Scriptures. Do not
believe in anything merely on the authority of Teachers, elders or wise men.
Believe only after careful observation and analysis, when you find that it
agrees with reason and is conducive to the good and benefit of one and all.
Then accept it and live up to it."
The Buddha on Belief, from the Kalama Sutta
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
A merely fallen enemy may rise again, but the reconciled
one is truly vanquished. -Johann Christoph Schiller,
German Writer (1759-1805)
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
It is preoccupation with possessions, more than anything else, that
prevents us from living freely and nobly. -Bertrand Russell
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
"Everyone has the right...to seek, receive and impart
information and ideas through any media and regardless
of frontiers."
Universal Declaration of Human Rights
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
"Always do sober what you said you'd do drunk. That will
teach you to keep your mouth shut."
--- Ernest Hemingway
<A HREF="http://www.ctrl.org/";>www.ctrl.org</A>
DECLARATION & DISCLAIMER
==========
CTRL is a discussion & informational exchange list. Proselytizing propagandic
screeds are unwelcomed. Substance�not soap-boxing�please! These are
sordid matters and 'conspiracy theory'�with its many half-truths, mis-
directions and outright frauds�is used politically by different groups with
major and minor effects spread throughout the spectrum of time and thought.
That being said, CTRLgives no endorsement to the validity of posts, and
always suggests to readers; be wary of what you read. CTRL gives no
credence to Holocaust denial and nazi's need not apply.
Let us please be civil and as always, Caveat Lector.
========================================================================
Archives Available at:
http://peach.ease.lsoft.com/archives/ctrl.html
<A HREF="http://peach.ease.lsoft.com/archives/ctrl.html";>Archives of
[EMAIL PROTECTED]</A>
http:[EMAIL PROTECTED]/
<A HREF="http:[EMAIL PROTECTED]/";>ctrl</A>
========================================================================
To subscribe to Conspiracy Theory Research List[CTRL] send email:
SUBSCRIBE CTRL [to:] [EMAIL PROTECTED]
To UNsubscribe to Conspiracy Theory Research List[CTRL] send email:
SIGNOFF CTRL [to:] [EMAIL PROTECTED]
Om
