1
   

Osama and the Geneva Convention

 
 
Reply Wed 3 Aug, 2005 08:26 am
From the Australian newspaper, "The Age" at The Age


Forget peacetime niceties - this is a war
By Ted Lapkin
August 3, 2005


David Hicks has sown the jihadist wind, and he will now reap the whirlwind before a US military commission. Hicks aspired to be a professional Islamist holy warrior. In letters to his family, the former Aussie jackaroo boasted of fighting with Lashkar-e-Taiba, the al-Qaeda-affiliated organisation that has conducted a bloody terrorist campaign against India. And he wound up in Guantanamo after being captured as a rank-and-file Taliban fighter during combat operations in an active theatre of war.

And make no mistake about it: this is a war. The bellicose aims of the September 11 terrorists, combined with the scope of destruction they inflicted, made it morally appropriate for America to regard those attacks as full-fledged acts of armed hostilities.

Washington moved swiftly to invest that ethical determination with the legitimacy of law. By mid-September 2001, Congress had passed an "authorisation for the use of military force" against terrorist "nations, organisations or persons". And President George Bush soon followed suit, declaring that the attacks "created a state of armed conflict that requires the use of the United States armed forces".

Because this is a war, the normal rules of civilian courtroom procedure are irrelevant. By its very nature, armed conflict violates the most fundamental principles of civil society. And while there is a legal code that governs warfare, it is infinitely more permissive than the ordinances that are operational in civilian life. On the battlefield, homicide is not only permitted, it is rewarded. Soldiers receive medals for acts that would land them in prison if they were done in civilian life: killing people.

In combat, there is no legal requirement to read the enemy his rights before shooting him from ambush. Thus, it is folly to apply peacetime legal standards to a wartime environment where they are self-evidently alien.

Moreover, the text of the Geneva Convention itself denies the privileges of legal combatant-hood to Hicks and his fellow Guantanamo detainees. The laws of war provide that captured soldiers should be treated in a civilised manner. But this is entirely conditional. If a non-party to the Geneva Convention systematically violates the regulations of armed conflict, then all bets are off, and off come the gloves. The Marquess of Queensberry rules of war-making are no longer required.

Osama bin Laden never signed, much less ratified the Geneva Convention. And al-Qaeda is a movement that views the deliberate slaughter of innocent women and children as a legitimate tactic of war.

From flying hijacked airliners into office buildings to bombing commuter trains in Madrid and London, bin Laden's foot soldiers systematically spurn the most fundamental precepts of international law. Thus according to article 2, paragraph 3 of the Geneva Convention, the United States is under no legal obligation to apply the terms of that treaty to al-Qaeda.

And the same holds true of the Taliban. During the bitter civil war that raged in Afghanistan throughout the 1990s, the Taliban's claim to legitimate government status was never internationally recognised. Thus in 1999, a typical UN Security Council Resolution (1267) condemned "the Afghan faction known as the Taliban" for its war crimes and alliance with al-Qaeda.

As an irregular militia, the Taliban was not eligible for the automatic coverage that the Geneva Convention provides to armed forces of nation states. And on the grounds of its behaviour in the field, the Taliban failed the same tests of international law - as did its al-Qaeda partner.

During World War II, a group of Nazi saboteurs captured wearing civilian clothes challenged the lawfulness of the American military commission process in a case called "ex parte Quirin". In its Quirin decision, the US Supreme Court noted the essential difference between lawful and unlawful combatants. Illegitimate combatants, noted the court, "are subject to trial and punishment by military tribunals for acts that render their belligerency unlawful".

Just last month, the US Court of Appeals reaffirmed the validity of the Quirin precedent in a case filed by Osama bin Laden's personal bodyguard. Like the Nazi spies 60 years before him, Salim Ahmed Hamdan tried and failed to challenge the lawfulness of the US military tribunal system.

By themselves violating every tenet of international law, al-Qaeda terrorists have forfeited any entitlement to protection under the Geneva Convention. US forces would be within their legal rights to treat captured terrorists as they dealt with Nazi saboteurs during World War II: with trial by military commission and execution.

David Hicks is indeed fortunate to be facing American military justice in 2005, rather than 1945.
  • Topic Stats
  • Top Replies
  • Link to this Topic
Type: Discussion • Score: 1 • Views: 1,738 • Replies: 14
No top replies

 
Brandon9000
 
  1  
Reply Wed 3 Aug, 2005 09:54 am
Don't want to acknowledge this, do you?
0 Replies
 
dlowan
 
  1  
Reply Wed 3 Aug, 2005 03:57 pm
As we say, what is wrong with using your own normal military tribunals?

This is an op ed piece - full of sound and fury. This columnist saying Hicks is guilty does not make him so, necessarily - any more than me saying Bush lied to get into Iraq necessarily makes it so.

Why are you so afraid of due process?
0 Replies
 
old europe
 
  1  
Reply Wed 3 Aug, 2005 04:23 pm
Re: Osama and the Geneva Convention
Quote:
And make no mistake about it: this is a war.


Okay, got a question here: if this is war (as was so often pronounced and as we all know it really is) - why was no war declared?

I'm a bit puzzled by this. The United States declared, a long time ago, war on Japan and on Germany. That was WWII. Since then, the USA have never again declared war against any other nation.

Why is this the case?
0 Replies
 
Brandon9000
 
  1  
Reply Wed 3 Aug, 2005 04:28 pm
Re: Osama and the Geneva Convention
old europe wrote:
Quote:
And make no mistake about it: this is a war.


Okay, got a question here: if this is war (as was so often pronounced and as we all know it really is) - why was no war declared?

I'm a bit puzzled by this. The United States declared, a long time ago, war on Japan and on Germany. That was WWII. Since then, the USA have never again declared war against any other nation.

Why is this the case?

So, you're basically saying that Vietnam and Korea were not wars, right? What's the difference in terms of some argument you might make?
0 Replies
 
Brandon9000
 
  1  
Reply Wed 3 Aug, 2005 04:30 pm
dlowan wrote:
As we say, what is wrong with using your own normal military tribunals?

This is an op ed piece - full of sound and fury. This columnist saying Hicks is guilty does not make him so, necessarily - any more than me saying Bush lied to get into Iraq necessarily makes it so.

Why are you so afraid of due process?

Listen carefully.......ready?........For the same reason soldiers captured in WW2 were simply imprisoned rather than treated as suspects in civil crimes. I am perfectly aware that answering this stupid question clearly will not free me from the unfortunate necessity of answering it again and again.
0 Replies
 
old europe
 
  1  
Reply Wed 3 Aug, 2005 04:42 pm
Re: Osama and the Geneva Convention
Brandon9000 wrote:
So, you're basically saying that Vietnam and Korea were not wars, right? What's the difference in terms of some argument you might make?


Nope. I'm saying that at least Vietnam, Korea, Iraq I, Afghanistan, Iraq II were/are wars. I think most people would agree on that.

This is really apart from any argument whether one of those conflicts might have been 'justified' or how any of the parties have been involved.

But I really wonder: Why wasn't war declared upon any of these countries?
0 Replies
 
Brandon9000
 
  1  
Reply Wed 3 Aug, 2005 04:46 pm
Re: Osama and the Geneva Convention
old europe wrote:
Brandon9000 wrote:
So, you're basically saying that Vietnam and Korea were not wars, right? What's the difference in terms of some argument you might make?


Nope. I'm saying that at least Vietnam, Korea, Iraq I, Afghanistan, Iraq II were/are wars. I think most people would agree on that.

This is really apart from any argument whether one of those conflicts might have been 'justified' or how any of the parties have been involved.

But I really wonder: Why wasn't war declared upon any of these countries?

I will tell you my guess regarding Iraq, and I don't claim that it's any more than a guess. I think that Bush perceived, probably correctly, that the Democrats would have prevented such a vote from passing, or at least made it a drawn out and miserable experience, and, so, settled for a lesser authorization bill that he thought he could get passed. It's a sad day when the "loyal opposition" would rather exploit a situation for political advantage, than support steps to protect the country and allies.
0 Replies
 
dlowan
 
  1  
Reply Wed 3 Aug, 2005 04:47 pm
Brandon9000 wrote:
dlowan wrote:
As we say, what is wrong with using your own normal military tribunals?

This is an op ed piece - full of sound and fury. This columnist saying Hicks is guilty does not make him so, necessarily - any more than me saying Bush lied to get into Iraq necessarily makes it so.

Why are you so afraid of due process?

Listen carefully.......ready?........For the same reason soldiers captured in WW2 were simply imprisoned rather than treated as suspects in civil crimes. I am perfectly aware that answering this stupid question clearly will not free me from the unfortunate necessity of answering it again and again.


You say they are NOT soldiers - you say they are terrorists. Yet, you wish to deny them any reasonable process to try this. Now, suddenly, you appear to say they are POWs.

You appear to support their torture and imprisonment indefinitely - removed from the laws protecting imprisoned soldiers.

You are all over the place.
0 Replies
 
Brandon9000
 
  1  
Reply Wed 3 Aug, 2005 04:53 pm
dlowan wrote:
Brandon9000 wrote:
dlowan wrote:
As we say, what is wrong with using your own normal military tribunals?

This is an op ed piece - full of sound and fury. This columnist saying Hicks is guilty does not make him so, necessarily - any more than me saying Bush lied to get into Iraq necessarily makes it so.

Why are you so afraid of due process?

Listen carefully.......ready?........For the same reason soldiers captured in WW2 were simply imprisoned rather than treated as suspects in civil crimes. I am perfectly aware that answering this stupid question clearly will not free me from the unfortunate necessity of answering it again and again.


You say they are NOT soldiers

Where did I say this?


dlowan wrote:
- you say they are terrorists.

Where did I say this?

dlowan wrote:
Yet, you wish to deny them any reasonable process to try this. Now, suddenly, you appear to say they are POWs.

You appear to support their torture and imprisonment indefinitely -

Where did I say this?

dlowan wrote:
removed from the laws protecting imprisoned soldiers.

You are all over the place.

No, your imagination is all over the place. I say that they are POWs who may or may not fit the definitions of the Geneva Convention, but most of whom probably don't, and that they should be treated the same as POWs in past wars, subject to the difference that many may not be covered by the GC.
0 Replies
 
dlowan
 
  1  
Reply Wed 3 Aug, 2005 05:11 pm
Oh - fair enough - I may be conflating your position with others - some of you are turning into a kind of 'orrid blob to me.

I will have a look at your positions - and comment later - work calls.

Is there somewhere you can point me to where you state your position fully and clearly?
0 Replies
 
Brandon9000
 
  1  
Reply Wed 3 Aug, 2005 05:24 pm
dlowan wrote:
Oh - fair enough - I may be conflating your position with others - some of you are turning into a kind of 'orrid blob to me.

I will have a look at your positions - and comment later - work calls.

Is there somewhere you can point me to where you state your position fully and clearly?

There are a lot of places around here, probably, but if you are curious, it might be easier, for me at least, if you just post some questions here.
0 Replies
 
goodfielder
 
  1  
Reply Wed 3 Aug, 2005 07:23 pm
That's not even an op-ed piece, it's a muddled rant, a huge, unfocused spray full of unwarranted assumptions and non sequiturs. It's like trying to fight someone who has their eyes closed and is swinging, kicking and spitting so much that I don't know where to start biffing them. I need some OC spray Very Happy

Now having dismissed the rant, a rant of my own.

David Hicks is being fitted up by a crooked administration and bit by bit the truth is dribbling out to the so-far apathetic Australian public that an Australian citizen is being abused by US authorities and our compliant, subservient, supine government is not only doing nothing about it, it's actively conspiring with the Bush Administration to ensure that he is convicted by a kangaroo court. This piece, written by yet another right wing propagandist, is another example of the Bush Administration and our own government trying to muddy the waters as the truth about the treatment of Hicks is coming out.

When the Australian people wake up to what has happened to Hicks, how he has been treated by our allies, how our own government has colluded to have him mistreated and denied any justice, they are going to be pretty angry.
0 Replies
 
goodfielder
 
  1  
Reply Wed 3 Aug, 2005 07:27 pm
Re the Lapkin rant: Some letters in today's Age

Remember justice
Mr Howard seems to imply that any kind of shonky system of justice is better than letting David Hicks get away with actions that Australia does not recognise as a criminal offence. We need to be careful that we don't allow our abhorrence of terrorism to overwhelm the importance of justice for an individual by allowing this travesty to continue without strident protest.

One thing we can be certain about is that, after holding David Hicks for three-and-a-half years without a trial, the Americans will not allow themselves to be embarrassed by a not guilty verdict.
Geoff Driscoll, Bellerive, Tas

Justice vital
Ted Lapkin (Opinion, 3/8) does not take into account two vital factors. First, justice should not only be done but be seen to be done. There are serious questions raised about the proceedings by which David Hicks will be judged. It is doubtful that justice will be seen to be done.

Second, the effects of such tinkering with legalities by the United States on both the US and those who support its actions. The mindset that allows Guantanamo Bay, the tortures carried out there, the injustices of the system (including the military commissions), sets the table for whatever comes next. Is this the civilisation, the democracy, that people are losing their lives for?
Brigid Walsh, Upper Ferntree Gully

Nazis got fair trials
Ted Lapkin (3/8) argues that by aligning himself with al-Qaeda and the Taliban, David Hicks has forfeited any claim to a trial before an independent court. I have in front of me a photo of a group of ageing men sitting in a dock surrounded by American military police. They are Nazi war criminals and some of their names are among the most reviled in modern history - Hermann Goering, the commander of the Luftwaffe, Joachim von Ribbentrop, the Nazis' foreign minister, and Alfred Rosenberg, the party's chief racial theorist. The picture was taken in 1946 in Nuremberg.

The procedures at Nuremberg have been criticised, but they did try to ensure an independent judiciary and procedural fairness for the defendants. In this sense, the trials were a reaffirmation of that central principle of the Western moral tradition that no one should be excluded from the realm of justice - not Goering, not Rosenberg, not Slobodan Milosevic, not Saddam Hussein - and, no, not even David Hicks. It is our commitment to that principle that makes our tradition worth defending.
Peter Coghlan, senior lecturer, school of philosophy, Australian Catholic University, Fitzroy
0 Replies
 
joefromchicago
 
  1  
Reply Thu 4 Aug, 2005 08:50 am
Re: Osama and the Geneva Convention
A few comments on the original article:

Ted Lapkin wrote:
Washington moved swiftly to invest that ethical determination with the legitimacy of law. By mid-September 2001, Congress had passed an "authorisation for the use of military force" against terrorist "nations, organisations or persons". And President George Bush soon followed suit, declaring that the attacks "created a state of armed conflict that requires the use of the United States armed forces".

I'm not sure what legal effect any "authorization for the use of military force" passed by Congress may have, except perhaps as a purely domestic matter. As a matter of international law, however, I doubt that it has any effect whatsoever.

Ted Lapkin wrote:
In combat, there is no legal requirement to read the enemy his rights before shooting him from ambush. Thus, it is folly to apply peacetime legal standards to a wartime environment where they are self-evidently alien.

Lapkin confuses the rules of war with regard to hostilities and the rules of war with regard to the treatment of prisoners. Those are two entirely different things.

Ted Lapkin wrote:
Moreover, the text of the Geneva Convention itself denies the privileges of legal combatant-hood to Hicks and his fellow Guantanamo detainees.

Not exactly. The Geneva Convention (III) certainly does not accord legal combatant status to persons who are not members of a nation's armed forces or members of a recognizable militia group (Art.icle 4), but then that determination has, in many cases, never been made for any of the Guantanamo detainees. Saying, then, that the detainees are not entitled to lawful combatant status because they're unlawful combatants is begging the question.

Ted Lapkin wrote:
The laws of war provide that captured soldiers should be treated in a civilised manner. But this is entirely conditional. If a non-party to the Geneva Convention systematically violates the regulations of armed conflict, then all bets are off, and off come the gloves. The Marquess of Queensberry rules of war-making are no longer required.

Regardless what the enemy does, a nation is still required to follow its own laws.

Ted Lapkin wrote:
By themselves violating every tenet of international law, al-Qaeda terrorists have forfeited any entitlement to protection under the Geneva Convention. US forces would be within their legal rights to treat captured terrorists as they dealt with Nazi saboteurs during World War II: with trial by military commission and execution.

I agree that unlawful combatants are subject to military trials. The problem, however, is that most detainees have never had any kind of trial at all -- not even any kind of determination as to whether or not they are actually unlawful combatants. It may be legitimate to try these detainees in military courts, but it is not legitimate to detain them indefinitely without any kind of legal process whatsoever.
0 Replies
 
 

Related Topics

Obama '08? - Discussion by sozobe
Let's get rid of the Electoral College - Discussion by Robert Gentel
McCain's VP: - Discussion by Cycloptichorn
Food Stamp Turkeys - Discussion by H2O MAN
The 2008 Democrat Convention - Discussion by Lash
McCain is blowing his election chances. - Discussion by McGentrix
Snowdon is a dummy - Discussion by cicerone imposter
GAFFNEY: Whose side is Obama on? - Discussion by gungasnake
 
  1. Forums
  2. » Osama and the Geneva Convention
Copyright © 2021 MadLab, LLC :: Terms of Service :: Privacy Policy :: Page generated in 0.03 seconds on 09/16/2021 at 09:27:13