Saturday, June 11, 2005

Redefining Liberty and Justice - Part I

Part I of II

There seems to be a false sense among most of the US public and its main stream media that the Bush administration and its military forces have a clear and working definition of what constitutes "terrorism". By moving suspects in the "War on Terror" into detainee status, there have been many legal and moral pitfalls . The very principles upon which the Bush Doctrine is based come into serious question:
In pursuit of our goals, our first imperative is to clarify what we stand for: the United States must defend liberty and justice because these principles are right and true for all people everywhere. No nation owns these aspirations, and no nation is exempt from them. Fathers and mothers in all societies want their children to be educated and to live free from poverty and violence. No people on earth yearn to be oppressed, aspire to servitude, or eagerly await the midnight knock of the secret police.
The concept of indefinite detainment is nothing novel. The British used this strategy against both the early American colonists and Northern Ireland. The Soviet Union detained both Polish and later anti-government dissidents in prison and labor camps (gulags). The concept is not new to the US either, having detained about 120,000 Japanese Americans in War Relocation Camps after Pearl Harbor.

What is surprising is the degree to which the current administration has waffled in its labeling of its detainees. According to the Third Geneva Convention, an "enemy combatant" is defined as the following:
Members of the armed forces of a Party to the conflict

or members of militias not under the command of the armed forces
that of being commanded by a person responsible for his subordinates;
that of having a fixed distinctive sign recognizable at a distance;
that of carrying arms openly;
that of conducting their operations in accordance with the laws and customs of war.

or are members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

or 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.
A captured or surrendering lawful enemy combatant is then defined as a Prisoner Of War (POW) and is safeguarded by provisions in the Third Geneva Convention during their imprisonment. If there is any doubt of an enemy combatant's wartime activities, then that prisoner must be held as a POW until a "competent tribunal" comes to a decision. If that POW is determined to be an unlawful enemy combatant (such as spies, mercenaries, members of militias not under the command of the armed forces who do not fit into the categories specified above, and those who have breached other laws or customs of war), then he/she are held under Fourth Geneva Convention provisions until a "fair and regular trial" commences. In all cases, that prisoner must be either prosecuted or released upon the resolution of the conflict.

flags of the worldBy using the phrase "War on Terror" , the Bush Administration seemed to have adopted the international definition of "enemy combatant", and thus embraced the provisions of the Geneva Conventions. This, however, was not the case. Arguing that terrorists do not belong to a specific nation state, the Administration denied application of the Geneva Conventions to their current detainees. This is summarized in the infamous Gonzales memo which states on no uncertain terms that "the Geneva Convention III on the Treatment of Prisoners of War does not apply to the conflict with Al Queda."

The argument was they were illegal enemy combatants, but somehow still denied the protection of the Fourth Geneva Convention. But this was only the beginning of the contortions the Administration was willing to undergo in redefining human rights.

2 Comments:

At 8:45 AM GMT-5, Blogger Granddaddy Long Legs said...

Excellent post. Well written and well conceived. However, we'll have to agree to disagree about the designation of terrorists as POWs who deserve full protections under the Geneva Convention.

Click here to proceed to Part II of my post, titled Amnesty's Insanity, to learn exactly why al Qaeda combatants should not be defined as POWs.

Also, don't forget that the basic principles of the Geneva Convention were to document for once and for all the commonly accpeted rules of war..."Among other issues, the laws of war address declaration of war, acceptance of surrender and the treatment of prisoners of war; the avoidance of atrocities; the prohibition on deliberately attacking civilians; and the prohibition of certain inhumane weapons.

It is a violation of the laws of war to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other easily identifiable badge and the carrying of weapons openly.

Impersonating soldiers of the other side by wearing the enemy's uniform and fighting in that uniform, is forbidden, as is the taking of hostages."

These laws were set up so that soldiers could target opposing soldiers in an effort to shield civilians as much as possible from inadvertant harm.

When terrorists (you could include some guerillas and spies under this too-broad umbrella term) specifically blend in among the opposition's civilian population, and proceed to target and attack innocent civilians, they have disqualified themselves from POW status and protections.

This is the same reason that our country routinely fails to recognize our own captured spies, and why the CIA honors their sacrifices with unnamed, undated stars on a wall.

Of course, you're right that this is a gray area that needs further definition, but the Administration also needs some flexibility in providing for the common defense. That said, you still make some very good points.

 

At 7:36 PM GMT-5, Blogger the prisoner said...

It is a violation of the laws of war to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other easily identifiable badge and the carrying of weapons openly.

Agreed. But I would want a transparent determination of this on a case-by-case basis to allay my concerns. It is not enough to claim that some terrorists mask as civilians and attack civilian targets, especially since some in Gitmo and other detainment camps are guilty of nothing more than being in the wrong place at the wrong time.

I am glad you agree about the grey area. This needs to be cleared up or I fear the extralegal actions the US engages in will simply fuel discontent.

 

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