NationStates Jolt Archive

I saw an article in the local paper saying that the US Supreme Court was not going to hear whether the detainees at Guantanamo Bay should be granted Habeas Corpus.

Personally, I nearly had a coronary. What do you think?

EDIT: Linky (http://www.reuters.com/article/topNews/idUSWBT00675620070403)

Naw, those freedom hating terrorists hate freedom too much.

And everyone knows that everyone who goes to Guantanamo bay IS a freedom hating terrorists and I do believe that Bush, Rumsfeld, or Rove said something about, "Freedom hating terrorists don't have the right of Habeas Corpus."

If they didn't say that, then the ever so wonderful Patriot Act probably protects hardworking, loyal, freedom loving US American citizens from the evils of those terrible, terrible men who are so justly locked up in Cuba, far away from the mainland United States of America.

Siap, why do you love the terrorists so much?

Either they're civilians being charged with a crime, and are thus subject to all civilian rights, including habeas corpus, or they are prisoners of war, and should be held until the war is over, under the protection of the geneva conventions, and then charged with war crimes (if applicable.)

Indeed, of course they should be granted Habeas Corpus rights. It goes back to the 1200s, written then as:

No free man may be taken or imprisoned, or ousted of his lands, or outlawed, or banished, or hurt in any way; nor will we [the king] go against him, nor send our officers against him, save by lawful judgment of his peers or by the law of the land.


Is there any American who can, given that context, justify to themselves that there is ever a legitimate situation in which the Writ can be suspended? We would be lowering ourselves to a time that the dark ages considered dark...

When King Charles unjustly jailed a group of knights (landless nobles, they were essentially lower class) for debt, and without trial, Parliament rebelled, as did the people.

They then created the Habeas Corpus Act:

[/quote]1. That no freeman ought to be committed or detained in prison, or otherwise restrained by command of the King or Privy Council, or any other, unless some cause of the commitment, detainer, or restraint be expressed, for which by law he ought to be committed, detained, or restrained.

2. That the writ of Habeas Corpus cannot be denied, but ought to be granted to every man that is committed or detained in prison or otherwise restrained by the command of the King, the Privy Council, or any other.[/quote]

To which the king contested, saying that he felt he could just respect the Magna Carta, this wasn't necessary and constricted his authority too much-- in return, the leader of this movement replied:

Did ever Parliament rely on messages?... The King’s answer is very gracious; but what is the law of the realm? That is the question.... Let us put up a Petition of Right; not that I distrust the King, but that I cannot take his trust but in a Parliamentary way.


In other words. Belief that Writ of habeas Corpus should be allowed to be suspended by the President, is tantamount to saying that you (whoever takes that position) is of the view that the President does, should, rightfully has more power than the King of England.

The King. Of England. Dating back to the 1200s, and focefully imposed in the 1600s

So yeah, of course they should have habeas corpus. If the justice system is legitimate in course, then those who are guilty will be found guilty, and those innocent, found innocent.

There's no reason that civilization should take two steps backwards, out of fear of being hit by any disaster... Even a terrorist attack.. there's no reason we need to sacrifice our most -basic- values, to soothe the terror stricken.

Your link is to this thread lol. I dunno atm. I'll read up, and get back to it.

Your link is to this thread lol. I dunno atm. I'll read up, and get back to it.

Link fixed

Doesn't everyone have the right to a fair and speedy trial, no matter what they have been accused of?

Doesn't everyone have the right to a fair and speedy trial, no matter what they have been accused of?

Thats why I nearly shredded the newspaper when I read it. I would like to see what possible justifications people have.

Thats why I nearly shredded the newspaper when I read it. I would like to see what possible justifications people have.
They are suspected of being terrorists/terrorist supporters so we should be able to commit human right abuses and keep them locked up forever. Flawless logic. :headbang:

If we can't convict them, then we shouldn't hold them. It really is that simple, no matter how people like EO will try to spin it.

They are suspected of being terrorists/terrorist supporters so we should be able to commit human right abuses and keep them locked up forever. Flawless logic. :headbang:

Apparently 2 people think so, according to the poll.

Apparently 2 people think so, according to the poll.
Apparently two people don't think things through and do not take human lives seriously.

yes they should. They are being denied so many rights is sickening. By most reports something like 60-75% of the people held there are innocent or were low level guys. Not hardened terrorists. They being held without trial, yet the Bush admin says they can't be released because they are terrorists. Really? Then if you know they are terrorists, then try them in court and use all the evidence you have against them. Oh thats right, you don't have any.

Can a bunch of monstrous masters actually grant Habeas Corpus? I thought all such vile individuals could do, was to repress it.

under the protection of the geneva conventions

I don't think that the US have ever signed the Geneva convention about POWs. Correct me if I'm wrong.

Apparently two people don't think things through and do not take human lives seriously.

Or two people out of 31 hit the wrong button. Not unbelievable around here.

I don't think that the US have ever signed the Geneva convention about POWs. Correct me if I'm wrong.

Unless there's more than one Geneva convention we're on a list of signatorys at this site: http://www.ppu.org.uk/learn/texts/doc_geneva_con_sp.html

Unless there's more than one Geneva convention we're on a list of signatorys at this site: http://www.ppu.org.uk/learn/texts/doc_geneva_con_sp.html

Technically there are four of them.

The First Geneva Convention "For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field".

The Second Geneva Convention "For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea".

The Third Geneva Convention "Relative to the Treatment of Prisoners of War".

The Fourth Geneva Convention "Relative to the Protection of Civilian Persons in Time of War".

The Third convention concerning who constitutes a POW, defines them as:

4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces
4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
that of being commanded by a person responsible for his subordinates;
that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
that of carrying arms openly;
that of conducting their operations in accordance with the laws and customs of war.
4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.
4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
4.1.6 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.
4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy.
Article 5 specifies that prisoners of war (as defined in article 4) are protected from the time of their capture until their final repatriation. It also specifies that when there is any doubt as to whether a combatant belongs to the categories in article 4, they should be treated as such until their status has been determined by a competent tribunal.

Obviously we did sign it. Otherwise why would president Bush have been going on about how the phrase "outrages upon human dignity" was vague?

they should, insofar as it applies to prisoners taken during war that fail to meet their geneva convention requirements.

Either they're civilians being charged with a crime, and are thus subject to all civilian rights, including habeas corpus, or they are prisoners of war, and should be held until the war is over, under the protection of the geneva conventions, and then charged with war crimes (if applicable.)

^ What he said. ^

given the amount of illegal detention they've suffered, not to mention the torture and abuse, what any just system is pretty well required to do is to set them free, well, yesterday. and probably pay them millions in compensation. which is a shame, as i'm sure at least a few of them actually do deserve to be locked up. but give me a bunch of freed terrorists over state-sponsored disappearances and unaccountable torture and murder camps any day.

perhaps the war criminals in charge should have thought of such things before engaging in tyranny and crimes against humanity...

given the amount of illegal detention they've suffered, not to mention the torture and abuse, what any just system is pretty well required to do is to set them free, well, yesterday. and probably pay them millions in compensation. which is a shame, as i'm sure at least a few of them actually do deserve to be locked up. but give me a bunch of freed terrorists over state-sponsored disappearances and unaccountable torture and murder camps any day.

perhaps the war criminals in charge should have thought of such things before engaging in tyranny and crimes against humanity...

*thunderous applause*

QFMFT. Very well put. :)

About the US and the convention on POWs, I stand corrected.


The Third convention concerning who constitutes a POW, defines them as:

4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces

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

4.1.6 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.
Article 5 specifies that prisoners of war (as defined in article 4) are protected from the time of their capture until their final repatriation. It also specifies that when there is any doubt as to whether a combatant belongs to the categories in article 4, they should be treated as such until their status has been determined by a competent tribunal.


I'd say that some sections here do define the inmates of Guantanamo as POWs.

4.1.1. and 4.1.3. Iirc, Bush declared that the hijackers of 9/11 were militias of the Afghani Taliban.
4.1.6 I think this one applies, too.
5. This is the most binding article. They haven't been tried yet, HENCE they are POWs until a tribunal proves that they're not.

Now, it appears that the Bush cabinet is violating international treatises. Are there provisions in US laws to prosecute such violations? I know for sure that in italian law there are, but I don't know about US.

It's a very bad sign that we even need to ask if people should be granted habeas corpus.

Either they're civilians being charged with a crime, and are thus subject to all civilian rights, including habeas corpus, or they are prisoners of war, and should be held until the war is over, under the protection of the geneva conventions, and then charged with war crimes (if applicable.)

The second leaves one potentially large loophole, namely that if the war is claimed to be "the war on terror" then they could keep it running and the inmates imprisoned for more or less as long as they like.

It's a very bad sign that we even need to ask if people should be granted habeas corpus.

Yes, indeed.
Looks like now that there isn't a "good democracies of the West vs evil dictatorships of the East" controversy, democracy is regarded as a useless tool.
Mala tempora currunt.

According to our AG, we don't even have the right of Habeas Corpus.

given the amount of illegal detention they've suffered, not to mention the torture and abuse, what any just system is pretty well required to do is to set them free, well, yesterday. and probably pay them millions in compensation. which is a shame, as i'm sure at least a few of them actually do deserve to be locked up. but give me a bunch of freed terrorists over state-sponsored disappearances and unaccountable torture and murder camps any day.

perhaps the war criminals in charge should have thought of such things before engaging in tyranny and crimes against humanity...

Quoted for Great Truth.

Yes. [/thread]

I just read an article about how a man was whisked out of the UK by the CIA shortly after refusing to become an informant for MI5. The closest thing that MI5 had on linking him to terrorism was petty shoplifting. It also appears he was abducted before he could finalise a claim for British nationality. Oh, how I love the British state.

http://www.guardian.co.uk/guantanamo/story/0,,2049597,00.html

If they should? Yes, about four years ago.

considering as how it is the underlying principal of government by law rather then hierarchal whimsy, it is totaly insane to deny habeas corpus to ANYONE, ever, period.

prisoners of war, well when there is a real and justified war, there are understandable situations where it might be desirable to remove enimy forces from a battle field for the remaining duration of a conflict, and since they have committed no other crime then to be solders of their respective forces, unless we were to consider all military organization and action criminal, there is of course nothing concrete with which to charge them.

this would be all well and good if they were to be merely held, and in humane conditions.

i think the problem with guantanimo and other places like it, i mean aside from the blatant and flagrant disregard of geniva convention limitations, is that far too many being held, have clearly proven to have had no real connection with forces of hostile intent, the pretention on which large numbers of persons have simple been rounded up and encarcerated with no real justification.

if this so called war on so called terror were anything other then a witch hunt, indeed motivated not by protecting anyone from anything but as an excuse for the forces of one culture and particularly economic intrests which pay no fealty to any human values, to cease the resources of those who generaly have less then their own, other then that specificly being ceased, one could well simpathise with the need for detaining prisoners of any such real war.

but the whole up front and admited justifcation for moving capturees and abductees to locations which can pretentiously be held in some sort of legal limbo, was to evade the very laws of the very nation engauged in this activity itself.

so even if a case can be made for the indeffinate detention of prisoners of real wars, at least for the duration of those real wars, the holding of anyone under any other circumstances, without the right to at least being charged with something is simply not ever justified. and certainly not ever justified is the treatment with which they are abused, on the pretence of intillegence gathering, which is clearly known to effectively do nothing of the sort.

if these detentions were at all on any grounds moraly justified, they would not have to be, as they are, in locations that facilitate their being in this kind of legal limbo. clearly and unambiguously this is a war crime to hold anyone under these conditions and on this pretense.

it is a crime against america's constitution. it is a crime against international law. and it is a crime against all of humanity and perhapse even the very web of life, to hold these persons without having actual charges to bring against them.

=^^=
.../\...

I saw an article in the local paper saying that the US Supreme Court was not going to hear whether the detainees at Guantanamo Bay should be granted Habeas Corpus.

Personally, I nearly had a coronary. What do you think?

EDIT: Linky (http://www.reuters.com/article/topNews/idUSWBT00675620070403)

Let's see. The Detainee Act was written and passed by Congress. Signed by Bush. With initial input on what would resolve the sticky area of detainee status by the Supreme Court.

Are you surprised the Supreme Court won't hear it?

yes. there is absolutely no legitamate reason to take it away from them.

It's a very bad sign that we even need to ask if people should be granted habeas corpus.

It's even worse that many people answer "no."

I just read an article about how a man was whisked out of the UK by the CIA shortly after refusing to become an informant for MI5. The closest thing that MI5 had on linking him to terrorism was petty shoplifting. It also appears he was abducted before he could finalise a claim for British nationality. Oh, how I love the British state.

http://www.guardian.co.uk/guantanamo/story/0,,2049597,00.html

Indeed. And that hacker is likely to be handed over as well.

hacker (http://news.bbc.co.uk/1/hi/uk/6523549.stm)

But of course it's only a one way system, what with us being allies and all.

Technically there are four of them.

The First Geneva Convention "For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field".

The Second Geneva Convention "For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea".

The Third Geneva Convention "Relative to the Treatment of Prisoners of War".

The Fourth Geneva Convention "Relative to the Protection of Civilian Persons in Time of War".

The Third convention concerning who constitutes a POW, defines them as:

Well, that's what happens when all one hears are references to "THE" Geneva Convention. I need my media to make more accurate statements damn it!

given the amount of illegal detention they've suffered, not to mention the torture and abuse, what any just system is pretty well required to do is to set them free, well, yesterday. and probably pay them millions in compensation. which is a shame, as i'm sure at least a few of them actually do deserve to be locked up. but give me a bunch of freed terrorists over state-sponsored disappearances and unaccountable torture and murder camps any day

I'm pretty sure you mean HAPPY Camps! :D

I don't think that the US have ever signed the Geneva convention about POWs. Correct me if I'm wrong.

Irrelevant, anyway. The US doesn't consider insurgents POW's, thus they wouldn't be granted the rights thereof. Beautiful system. Twist around technicalities, gotta love.

I need my media to make more accurate statements damn it!
Yeah, I agree, but I don't expect to see that happen in my lifetime :(

You are very correct Redwulf25. According to the latest Geneva Convention
http://www.unhchr.ch/html/menu3/b/91.htm, they are POW's. I believe Article 4 specifies that if you are acting as an insurgent or militia, you are a POW. Under the US, POW's are not allowed the Habeas Corpus. Under the convention, we are required to detain them in a humane manner until the end of hostilities; in which case they are to be repatriated to their county.

Vic

About the US and the convention on POWs, I stand corrected.



I'd say that some sections here do define the inmates of Guantanamo as POWs.

4.1.1. and 4.1.3. Iirc, Bush declared that the hijackers of 9/11 were militias of the Afghani Taliban.
4.1.6 I think this one applies, too.
5. This is the most binding article. They haven't been tried yet, HENCE they are POWs until a tribunal proves that they're not.

Now, it appears that the Bush cabinet is violating international treatises. Are there provisions in US laws to prosecute such violations? I know for sure that in italian law there are, but I don't know about US.

i don't believe so, whilst captured taleban certainly are, captured al qeada certainly aren't. also article 5 doesn't state a trial. it states a competent tribunal, a combatant status review tribunal perhaps? regardless of wether or not they fit a constitutional model, they are competent to determine combatant status.

Omg yes.

It's depressing that people try to justify injustice :(

Omg yes.

It's depressing that people try to justify injustice :(

But when we had all those Nazi POW's in the US, they did not qualify for any Habeas Corpus. That is reserved for citizens of the country, and not for enemy combatants that are classified as POW's.

Maybe you can enlighten me as to how that is being unjust.

Vic

But when we had all those Nazi POW's in the US, they did not qualify for any Habeas Corpus. That is reserved for citizens of the country, and not for enemy combatants that are classified as POW's.

Maybe you can enlighten me as to how that is being unjust.

Classifying someone as an enemy combatant without due process is injustice. Nazi POWs lived in very nice prisons btw, not fucking Guantanamo. Imprisoning someone without trial is injustice in it's highest form.

I wasn't aware anyone who isn't a citizen is undeserving of rights. I suppose the Geneva Conventions meant nothing then.

Classifying someone as an enemy combatant without due process is injustice. Nazi POWs lived in very nice prisons btw, not fucking Guantanamo. Imprisoning someone without trial is injustice in it's highest form.

I wasn't aware anyone who isn't a citizen is undeserving of rights. I suppose the Geneva Conventions meant nothing then.

due process for an enemy combatant is not a trial by a jury with lawyers and defence though, its a competent tribunal, and ony if the issue is in doubt, because due process is if you find him on a battlfield and he has a gun and an enemy uniform, he's an enemy combatant.

anyone who isn't a citizen is usually disallowed civil rights (though i understand the US constitution stipulates otherwise in most cases) any human rights they are still allowed, including GC, however, one: POW'S don't get trials and two: the bush government insists with some logic that captured members of al-qeada don't qualify as POW's.

either way the right of habeas corpus can still be applied in orignial meaning of informing the subject of why his liberty has been suspended.

due process for an enemy combatant is not a trial by a jury with lawyers and defence though, its a competent tribunal, and ony if the issue is in doubt, because due process is if you find him on a battlfield and he has a gun and an enemy uniform, he's an enemy combatant

And if that's how all of the people in the concentration ca- . . . I mean United States detention facility . . . were FOUND I would agree.

And if that's how all of the people in the concentration ca- . . . I mean United States detention facility . . . were FOUND I would agree.

Indeed. From the link in the OP:

The other appeal involved six Algerians captured in Bosnia and held at Guantanamo since January 2002.

fair point i'm not trying to defend the bush administration from charges of immorality, simply saying that its not in violation of the GC so that its clear to both its admirers and detactors alike that it neither creates an impossible standard for detainment and thus should be ingnored or that it is a saviour and scour from any and all unpleasant treatment.

Guantanamo DETAINEES "should" not only be released back to their countries of their individual choice, but paid reperations for their unlawful detention!

most if not all, the victums of broad and unselective whitch hunts, and or detained to PREVENT the world from learning whatever truths they might have to tell.

particularly those eye witness to the direct and controling links between rumsfield and other top bush administration and former top bush adminstraion figures, and the so called al Qaida.

=^^=
.../\...

there are only 385 people left in gitmo, are your sure that in all the world. the US can't find 400 people who are involved in attacks on US troops or US civilians, who don't wear uniforms and don't follow the laws of war?

there are only 385 people left in gitmo, are your sure that in all the world. the US can't find 400 people who are involved in attacks on US troops or US civilians, who don't wear uniforms and don't follow the laws of war?

Well the thing is you see, is that we would like them to actually sort of prove what they say is true. To stop er, innocent people getting persecuted. That sort of thing.

Well the thing is you see, is that we would like them to actually sort of prove what they say is true. To stop er, innocent people getting persecuted. That sort of thing.

to a civil standard of proof (CSI:Kabul?), despite the fact that the US civil justice system cannot provide a jury of their peers, despite the fact that a civil trial has never been the practice for detainees during time of war, despite the fact that the battlefield conditions do not allow for a civil standard of proof nor does the activity they are charged with, bearing arms against US troops require one.

the proof that is required legally, is the verdict of a military tribunal.

"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." GC3 article 5

of course your doubting a belligerent act rather than the catagory. however the GC makes great efforts to keep the civil system of justice out of POW management

to a civil standard of proof (CSI:Kabul?), despite the fact that the US civil justice system cannot provide a jury of their peers, despite the fact that a civil trial has never been the practice for detainees during time of war, despite the fact that the battlefield conditions do not allow for a civil standard of proof nor does the activity they are charged with, bearing arms against US troops require one.

the proof that is required legally, is the verdict of a military tribunal.

"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." GC3 article 5

of course your doubting a belligerent act rather than the catagory. however the GC makes great efforts to keep the civil system of justice out of POW management


Any sort of trial at all would be a start, given a fair number of prisoners (250 or so apparently) that aren't scheduled to have any sort of trial at all.

I saw an article in the local paper saying that the US Supreme Court was not going to hear whether the detainees at Guantanamo Bay should be granted Habeas Corpus.

Personally, I nearly had a coronary. What do you think?

EDIT: Linky (http://www.reuters.com/article/topNews/idUSWBT00675620070403)

This is what happens when the only qualification a guy needs to be Chief Justice of the Supreme Court is the ability to pretend not to be crazy for an hour or two.

to a civil standard of proof (CSI:Kabul?), despite the fact that the US civil justice system cannot provide a jury of their peers, despite the fact that a civil trial has never been the practice for detainees during time of war, despite the fact that the battlefield conditions do not allow for a civil standard of proof nor does the activity they are charged with, bearing arms against US troops require one.

the proof that is required legally, is the verdict of a military tribunal.

"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." GC3 article 5

of course your doubting a belligerent act rather than the catagory. however the GC makes great efforts to keep the civil system of justice out of POW management

The point is that the Geneva Conventions really only makes room for two categories: Combatants and non-combatants.

The tribunal is to determine their status; If they are combatants they should be treated as POWs and be released at the end of war. If they are anything else they should be treated as civilians and be given proper trials. And habeas corpus.

Am I the only person a tad nervous about the process of who is determined a combatant and a non-combatant?

Am I the only person a tad nervous about the process of who is determined a combatant and a non-combatant?

No, there are many of us. We should start a club. I demand a serving of cake and chocolate :)

The point is that the Geneva Conventions really only makes room for two categories: Combatants and non-combatants.

The tribunal is to determine their status; If they are combatants they should be treated as POWs and be released at the end of war. If they are anything else they should be treated as civilians and be given proper trials. And habeas corpus.

clearly not


"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." GC3 article 5

it makes provision for a catagory of belligerents who fail to qualify as POW's. problem is when the GC was written it was OK to shoot them on the spot.

No, there are many of us. We should start a club. I demand a serving of cake and chocolate :)

I want my cake, but not eat it. I think they're pretty.

Anywho I wouldn't be surprised if MPs kicked in my door and arrested me as a combatant.

Judge: "Did you write: "I wish he choked on that pretzle."?"

Me: "Yes, but -*gets dragged away* I didn't plant the pretzle! I didn't plant the preeeetzzlee!"

The UK in Exile;12513254']clearly not


"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." GC3 article 5

it makes provision for a catagory of belligerents who fail to qualify as POW's. problem is when the GC was written it was OK to shoot them on the spot.

They would still have to be treated as POWs until they were determined to be combatants who were not protected under the Geneva convention. Then they would be combatants who do not have the right to prisoner of war status - but that's only if they were determined to be spies or mercenaries.

In short, there is no such thing as "unlawful combatant" under the Geneva conventions.

i don't believe so, whilst captured taleban certainly are, captured al qeada certainly aren't. also article 5 doesn't state a trial. it states a competent tribunal, a combatant status review tribunal perhaps? regardless of wether or not they fit a constitutional model, they are competent to determine combatant status.

Ok about tribunals (yet I still think that the idea of a tribunal is about having an alleged crime, a person suspected thereof, a prosecutor and a defence debating the issue).

About the taleban/al-quaeda: how can you determine if a person is an Al-Quaida member instead of a "simple" taliban? I don't think that Al-Quaida usually issues an "Al-Quaida membership card", and gives its members who have killed at least one infidel the "Al-Quaida Gold card".
And, since in all "western democracies" there is the "innocent until proven guilty" principle, until a tribunal decides, they are POWs, not terrorists.

due process for an enemy combatant is not a trial by a jury with lawyers and defence though, its a competent tribunal, and ony if the issue is in doubt, because due process is if you find him on a battlfield and he has a gun and an enemy uniform, he's an enemy combatant.

anyone who isn't a citizen is usually disallowed civil rights (though i understand the US constitution stipulates otherwise in most cases) any human rights they are still allowed, including GC, however, one: POW'S don't get trials and two: the bush government insists with some logic that captured members of al-qeada don't qualify as POW's.

either way the right of habeas corpus can still be applied in orignial meaning of informing the subject of why his liberty has been suspended.

1.Given that taliban and Al-Quaida member don't use uniforms... see Geneva convention, aforementioned, 4.1.3 I think.

2.International treatises usually allow same rights for foreigners. Also we might debate whether the US laws have jurisdiction over Afghan territory, and the international juridical issues linked to that.

3.I thought that the "Habeas corpus" in its original meaning (literally, "have body") implied that the authorities have to present the judiciary power some solid evidence of the alleged crime to arrest a person.

if he doesn't have uniform but he does have a gun, then he's an illegal combatant.

ok its a simplification, because there are reasons for having a gun that are innocent.

point 3. thats one way of stating it, however given that witch burnings were still going on, i think "solid evidence" is misleading, its certainly not required in the original act.

if he doesn't have uniform but he does have a gun, then he's an illegal combatant.

ok its a simplification, because there are reasons for having a gun that are innocent.

Could be a member of some kind of citizens militia.

They would still have to be treated as POWs until they were determined to be combatants who were not protected under the Geneva convention. Then they would be combatants who do not have the right to prisoner of war status - but that's only if they were determined to be spies or mercenaries.

In short, there is no such thing as "unlawful combatant" under the Geneva conventions.

no theres no articles adressing their treatment, there are however clear catagories of individuals detained by the detaining power, belligerents(POW), civilians, belligerents(non POW). the reason they lose there POW rights is performing UNLAWFUL actions in COMBAT.
one might be tempted to label them UNLAWFUL COMBATANTS.

Could be a member of some kind of citizens militia.

legitimate and deserving of POW rights as long as

(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

but he'd still be in gitmo, he'd just get more humane treatment.

one might be tempted to label them ILLEGAL COMBATANTS.

Surely only an idiot would do that

you have a better name for some who performs unlawful actions in a combat situation?

no theres no articles adressing their treatment, there are however clear catagories of individuals detained by the detaining power, belligerents(POW), civilians, belligerents(non POW). the reason they lose there POW rights is performing UNLAWFUL actions in COMBAT.
one might be tempted to label them UNLAWFUL COMBATANTS.
One should not give into the temptation of making up a designation that does not exists in international law.

When one falls outside of the protection granted by the Geneva Convention one falls back to international customary law. If they aren't combatants they are non-combatants. The legal limbo that is "illegal combatant" is a travesty.
you have a better name for some who performs unlawful actions in a combat situation?
Yes. Heard of War Crimes before?

you have a better name for some who performs unlawful actions in a combat situation?

What kind of unlawful actions are we talking about. Generally war criminal.

One should not give into the temptation of making up a designation that does not exists in international law.

When one falls outside of the protection granted by the Geneva Convention one falls back to international customary law. If they aren't combatants they are non-combatants. The legal limbo that is "illegal combatant" is a travesty.

Yes. Heard of War Crimes before?

The Conventions define illegal combatants, you know.

Illegal combatants also don't get any Geneva protections. If you're a mercenary, you could be shot on the spot without trial or habeas corpus (well, plenty of dead corpus maybe).

What kind of unlawful actions are we talking about. Generally war criminal.

a) not being commanded by a person responsible for his subordinates;
(b) not having a fixed distinctive sign recognizable at a distance;
(c) not carrying arms openly;
(d) not conducting their operations in accordance with the laws and customs of war.

a) not being commanded by a person responsible for his subordinates;
(b) not having a fixed distinctive sign recognizable at a distance;
(c) not carrying arms openly;
(d) not conducting their operations in accordance with the laws and customs of war.

These strike me as rather woolly and open to an enormous amount of interpretation.

These strike me as rather woolly and open to an enormous amount of interpretation.

I guess you don't like the text of the Geneva Conventions?

take it up with the GC. its a direct quote.

I guess you don't like the text of the Geneva Conventions?

It could certainly do with updating.

It could certainly do with updating.

Well, there was an attempt in the 1970s to update it for people who are native insurgents.

Mind you, the Conventions literally protect uniformed soldiers and non-uniformed insurgents (provided the insurgents are native to the country where captured).

Any other non-uniformed personnel can be construed as mercenaries, and shot without trial.

A lot of what people view as the "Geneva Conventions" is comprised of their own wishful thinking.

if he doesn't have uniform but he does have a gun, then he's an illegal combatant.

ok its a simplification, because there are reasons for having a gun that are innocent.

point 3. thats one way of stating it, however given that witch burnings were still going on, i think "solid evidence" is misleading, its certainly not required in the original act.

This is all wonderful, but most were seized from their beds or lifted from the streets. Why are you bringing this up?


Illegal combatants also don't get any Geneva protections. If you're a mercenary, you could be shot on the spot without trial or habeas corpus (well, plenty of dead corpus maybe)..

I don't see what "mercenaries" have to do with this either. The only ones that fit that description that I can think of are the various groups operating under the American aegis. Mayor Giulannis former side-kick Kerik was running round with a load of south Africans who fitted that description during his short stint in Iraq, was he not? Not to mention the blackwater people...

Well, there was an attempt in the 1970s to update it for people who are native insurgents.

Mind you, the Conventions literally protect uniformed soldiers and non-uniformed insurgents (provided the insurgents are native to the country where captured).

Any other non-uniformed personnel can be construed as mercenaries, and shot without trial.

A lot of what people view as the "Geneva Conventions" is comprised of their own wishful thinking.

Agreed. My view is that allowing mercenaries to be shot without trial is something that needs reviewing.

This is all wonderful, but most were seized from their beds or lifted from the streets. Why are you bringing this up?

I don't see what "mercenaries" have to do with this either. The only ones that fit that description that I can think of are the various groups operating under the American aegis. Mayor Giulannis former side-kick Kerik was running round with a load of south Africans who fitted that description during his short stint in Iraq, was he not? Not to mention the blackwater people...

Mercenaries are only one type of illegal combatant, and I brought them up because someone is insisting that there's no such thing as an illegal combatant.

There certainly is, and yes, those others might qualify as mercenaries UNLESS they are in a uniform and are subject to US command by US armed forces.

People who come from other countries to fight as insurgents in Iraq or Afghanistan (i.e., foreign fighters) certainly qualify as mercenaries or illegal combatants if caught under arms (they don't even have to be fighting - just standing there with an AK).

This is all wonderful, but most were seized from their beds or lifted from the streets. Why are you bringing this up?



I don't see what "mercenaries" have to do with this either. The only ones that fit that description that I can think of are the various groups operating under the American aegis. Mayor Giulannis former side-kick Kerik was running round with a load of south Africans who fitted that description during his short stint in Iraq, was he not? Not to mention the blackwater people...

well Al qeada are foreign fighters payed and equipped with private funds and run by an NGO, so technically the can be classed as mercenaries.

what percentage of the 385 where seized in their beds or on the streets?

Agreed. My view is that allowing mercenaries to be shot without trial is something that needs reviewing.

Well, yes. A lot of this needs to be changed, in light of the current fad for decentralized warfare.

I think that it should be possible for a state to declare war on a non-state entity i.e, the US declare war on Al-Qaeda.

I then think that we should treat captured Al-Qaeda people according to rules regarding regular POWs.

That would mean a military hearing to prove that they were indeed members of al-Qaeda, or assisting them. Once that was proven (like proving you were an enemy soldier - these things are fairly simple and straightforward), you would be held for the duration of the conflict according to the rules on POWs.

Red Cross packages, three hots and a cot, no torture, and eternal boredom.

The Conventions define illegal combatants, you know.
Actually, it doesn't. The term "illegal combatant" cannot be found in the Geneva convention...


Illegal combatants also don't get any Geneva protections. If you're a mercenary, you could be shot on the spot without trial or habeas corpus (well, plenty of dead corpus maybe).

They must still be determined to be mercenaries by a competent tribunal, and then "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial" - the fourth Geneva Convention art 5.

So no, you can't "Just shoot" suspected mercenaries either.

Actually, it doesn't. The term "illegal combatant" cannot be found in the Geneva convention...

They must still be determined to be mercenaries by a competent tribunal, and then "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial" - the fourth Geneva Convention art 5.

So no, you can't "Just shoot" suspected mercenaries either.

A military field court martial can be dreadfully short - and legal.

Actually, it doesn't. The term "illegal combatant" cannot be found in the Geneva convention...



It certainly defines them by the holes they fall through.

Actually, it doesn't. The term "illegal combatant" cannot be found in the Geneva convention...



They must still be determined to be mercenaries by a competent tribunal, and then "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial" - the fourth Geneva Convention art 5.

So no, you can't "Just shoot" suspected mercenaries either.

it does, we quoted where it does, demonstrated how it does. if you refuse to accept it, theres nothing more to be done.

"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."

if your definition of combatant (also not in GC3) is someone who is deserving of POW rights, then since GC3 admits it is possible for a belligerent to exist who does not deserve POW rights, GC3 establishes that a sub division of combatants into those who follow the convention and those who do not exists.

well Al qeada are foreign fighters payed and equipped with private funds and run by an NGO, so technically the can be classed as mercenaries.

what percentage of the 385 where seized in their beds or on the streets?

From
A Profile of 517 Detainees through Analysis of Department of Defense Data By
Mark Denbeaux
Professor, Seton Hall University School of Law and
Counsel to two Guantanamo detainees
Joshua Denbeaux, Esq.
Denbeaux & Denbeaux
David Gratz, John Gregorek, Matthew Darby, Shana Edwards,
Shane Hartman, Daniel Mann and Helen Skinner
Students, Seton Hall University School of Law

1. Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.
2. Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban.
3. The Government has detained numerous persons based on mere affiliations with a large number of groups that in fact, are not on the Department of Homeland Security terrorist watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably. Eight percent are detained because they are deemed “fighters for;” 30% considered “members of;” a large majority – 60% -- are detained merely because they are “associated with” a group or groups the Government asserts are terrorist organizations. For 2% of the prisoners their nexus to any terrorist roup is unidentified.
4. Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States
custody.


http://law.shu.edu/aaafinal.pdf

intresting, point conceded, clearly a lot of the people in gitmo should be somewhere else, however at least 55% are supposed to be there.

The UK in Exile;12513669']it does, we quoted where it does, demonstrated how it does. if you refuse to accept it, theres nothing more to be done.

"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."

if your definition of combatant (also not in GC3) is someone who is deserving of POW rights, then since GC3 admits it is possible for a belligerent to exist who does not deserve POW rights, GC3 establishes that a sub division of combatants into those who follow the convention and those who do not exists.

Wrong. That part of the Geneva convention does not define anything like an "illegal combatant". It simply states that if it is in question of whether he falls into any of the categories in article 4, he is assumed to have the rights granted to him under the convention until is can be determined whether he definitively does not fall under article 4. After that he is not defined as a POW. It doesn't say what rights he is or is not entitled to, or what his classification is if he is not a POW. It does not say anything about him becoming an "illegal combatant". Although you could also say it does not specify them as "non combatants" either. It seems quite open ended to me, unless anyone can point out anything to the contrary.

The UK in Exile;12513727']intresting, point conceded, clearly a lot of the people in gitmo should be somewhere else, however at least 55% are supposed to be there.

100-55 = 45%. As we don't know whats been defined as a "hostile act" or what constitutes grounds for suspicion, lets go with the number that are taken as being al Qaeda - 8%.

Wrong. That part of the Geneva convention does not define anything like an "illegal combatant". It simply states that if it is in question of whether he falls into any of the categories in article 4, he is assumed to have the rights granted to him under the convention until is can be determined whether he definitively does not fall under article 4. After that he is not defined as a POW. It doesn't say what rights he is or is not entitled to, or what his classification is if he is not a POW. It does not say anything about him becoming an "illegal combatant". Although you could also say it does not specify them as "non combatants" either. It seems quite open ended to me, unless anyone can point out anything to the contrary.

it specifies them as combatants, ones who being in violations of the laws of war do not get pow rights.

100-55 = 45%. As we don't know whats been defined as a "hostile act" or what constitutes grounds for suspicion, lets go with the number that are taken as being al Qaeda - 8%.

no but lets not quibble over the figure lets leave it what you originally said, many people where not detained under apropriate circumstances to be denied POW rights.

oh, and achillean and I are one and the same, for some reason jolt keeps switching which profile i log in as on auto login.

A military field court martial can be dreadfully short - and legal.

...and includes Habeas Corpus, no?

The UK in Exile;12513669']it does, we quoted where it does, demonstrated how it does. if you refuse to accept it, theres nothing more to be done.

"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."

if your definition of combatant (also not in GC3) is someone who is deserving of POW rights, then since GC3 admits it is possible for a belligerent to exist who does not deserve POW rights, GC3 establishes that a sub division of combatants into those who follow the convention and those who do not exists.
I don't really understand you.

However, see UN Protectorates posts above.

Also, let me restate what I've been saying:

Once a combatant is found by a competent tribunal to not be a lawful combatant, he or she no longer has the rights and privileges accorded to POWs. However, he retains all the rights any other civilian would have under municipal and international law in the same situation. This is in accordance with international law as expressed earlier, see the Celebici Judgment concerning former Yoguslavia and the 1958 ICRC commentary on the Fourth Geneva Convetion. The commentary state, and the court agrees with this, that every person in enemy hands must either be a prisoner of war and, as such, covered by the Third Convention, or a civilian covered by the Fourth Convention, and that "There is no intermediate status; nobody in enemy hands can be outside the law". I.e., the Geneva conventions only deal with combatants and non-combatants, as the term "illegal combatants" don't exist within the framework of all the conventions, and it was not a definition used during the creation of the conventions.