Are the folk in Gitmo guilty or innocent?

[Spiffor]

Originally posted by lord of the mark
1.the part of 3rd geneva you quoted has no supporting detail. Its immediately followed by a more precise definition of whos a POW. Which is then followed by extensive detail about the treatment of POWs. Cause thats what 3rd Geneva is about. The part you quoted is simply to keep someone from saying that we can do anything to anyone, as long as theyre not POWs. It does NOT create specific protections for unlawful combatants.

Absolutely. It creates basic protections for every person not currently actively engaged in the hostilities.

2. I did NOT say that the purpose of distinguishing between lawful and unlawful protection was only protection of "our boys" Its also to protect civilians, who are also the victims of unlawful combatants, and are indirectly the victims of unlawful combatants failure to wear uniforms, since it makes it difficult for an army to distinguish who its enemies in war are, and thus tends to undermine the protection of civilians in wartime.

I'm still reading that you consider it's ok to torture the scum. Even once they're harmless.

[lord of the mark]

Originally posted by Spiffor

To you, there's only one reason why torture, mutilation, humiliation etc should be avoided. It's because we don't want the other side to do it on our boys.

As long as it'll have no effect on our boys, it is all ok to torture, mutilate, humiliate etc. the enemy

The US does not commit torture or mutilation, under the anti-torture agreement, and US law. The debate is about whether certain interrogation techniques, that can be interpretated as degrading, are lawful or not. Twisting my words to make it appear Im saying something morally different from im saying does not increase my respect for you.

Personally I think we should stop interrogating these prisoners in these ways, cause its selfdefeating. Ethically I think its perfectly justified to degrade someone who has supported AQs war on Jews, Christians, and moderate muslims, a war conducted against civilians and without limits, in order to gather info to prevent an attack. If you want to argue about the law, argue law. Not everything thats ethical is legal. And not everything that the admin has done is necessarily ethical, even by my assertion. Perhaps I was mistaken to introduce an ethical consideration into a legal discussion - I thought an absolutely formalist discussion of the quoted article of the 3rd Geneva Convention missed the spirit of the 3rd Geneva convention - I didnt realize that this would be twisted and used as an attack on my own ethical views wrt to these issues. Perhaps I should have.

[Spiffor]

Originally posted by MichaeltheGreat
Prisoners taken in the field are by definition taking an active part in hostilities.

Yes. At the time of their capture. Not later.

I quoted this point (which is a very short paragraph in the convention) precisely because it deals about fighting against a non-etatic armed force, such as in civil wars for example (civil wars being an example, and not the exhaustive list of situations where this text applies).

[lord of the mark]

Originally posted by Spiffor

Absolutely. It creates basic protections for every person not currently actively engaged in the hostilities.

2. I did NOT say that the purpose of distinguishing between lawful and unlawful protection was only protection of "our boys" Its also to protect civilians, who are also the victims of unlawful combatants, and are indirectly the victims of unlawful combatants failure to wear uniforms, since it makes it difficult for an army to distinguish who its enemies in war are, and thus tends to undermine the protection of civilians in wartime.

I'm still reading that you consider it's ok to torture the scum. Even once they're harmless.

Its illegal under the antitorture convention, of 1987, I think. Which wouldnt have been necessary if 3rd Geneva meant what you think it means.

[Spiffor]

Originally posted by lord of the mark
does not increase my respect for you.
[...]
Ethically I think its perfectly justified to degrade someone who has supported AQs war

The feeling is mutual.

I know people who support AQ. Who think Osama is a good guy. They're deluded, but they aren't evil. And despite their ideas, they don't deserve the humiliations and degradations that the people have gitimo endured, without any trial.

[lord of the mark]

Originally posted by Vesayen


There is no such thing as an unlawful combatant, it is a made up term for "We'll hold civilians against the rules of basic civilization" or "We'll hold soldiers against the geneva convention".

the term was used in 1942 by SCOTUS in ex parte Quinn.

Now theres debate about whether ex parte Quinn still applies, or if it justifies the exact conditions at Gitmo (my understanding of the recent SCOTUS decision is that it does NOT) But the term certainly wasnt invented by the Bush admin.

[Spiffor]

Perhaps I was mistaken to introduce an ethical consideration into a legal discussion - I thought an absolutely formalist discussion of the quoted article of the 3rd Geneva Convention missed the spirit of the 3rd Geneva convention

To me, the ethical consideration in the Geneva Convention can be traced to the word "civilized".

The Geneva convention is about acting in a civilized fashion, even in war. No degradation, humiliation, torture, arbitrary etc. is something civilized people should strive for, regardless of anything else.
Precisely because we civilized people are different from barbarians.

[lord of the mark]

Originally posted by Spiffor

The feeling is mutual.

I know people who support AQ. Who think Osama is a good guy. They're deluded, but they aren't evil. And despite their ideas, they don't deserve the humiliations and degradations that the people have gitimo endured, without any trial.

I am referring to be people who have commited certain acts, not just thoughts. They are evil, if evil means anything. If degradations are needed to gather info to save lives, they are ethical. Ideally of course they would not be needed, just as it would not be necessary to engage in LAWFUL armed combat that tears apart peoples guts, burns off their faces, etc. And which is frequently done to conscripts, far less culpable than the folks at Gitmo.

[lord of the mark]

Originally posted by Spiffor

Perhaps I was mistaken to introduce an ethical consideration into a legal discussion - I thought an absolutely formalist discussion of the quoted article of the 3rd Geneva Convention missed the spirit of the 3rd Geneva convention

To me, the ethical consideration in the Geneva Convention can be traced to the word "civilized".

The Geneva convention is about acting in a civilized fashion, even in war. No degradation, humiliation, torture, arbitrary etc. is something civilized people should strive for, regardless of anything else.
Precisely because we civilized people are different from barbarians.

Then why does most of 3rd Geneva apply only to a narrowly defined group of POWs? Why does 4th Geneva only apply to occupations, but not extend rights to people living under their own sovereign govts?

The Geneva conventions are NOT general assertions of humanity, but are designed to address certain specific issues that come up in war, and are done so for a variety of reasons.

[Spiffor]

Originally posted by lord of the mark
And which is frequently done to conscripts, far less culpable than the folks at Gitmo.

While the gitmo guys aren't conscripts, I have the strong feeling that most of them are voluntary cannon-fodder of foreign origin. But without trial, of course, it's hard to have any actual knowledge of what they did.

Being cannon-fodder, even volunatily and from a foreign country, doesn't automatically turns you into a terrorist who blows up marketplaces.

Edit: clarity.

[Spiffor]

Originally posted by lord of the mark
Then why does most of 3rd Geneva apply only to a narrowly defined group of POWs? Why does 4th Geneva only apply to occupations, but not extend rights to people living under their own sovereign govts?

The Geneva conventions are NOT general assertions of humanity, but are designed to address certain specific issues that come up in war, and are done so for a variety of reasons.

Indeed. The 3rd convention has almost entirely in mind the treatment of prisoners of war, in a war that opposes two countries fighting conventionally.

However, the Convention has added the caveat of a war against a non-etatic armed force. It is the passage I quoted, and I quoted it precisely because I know many people here consider the Taliban as "unlawful combatants".

This caveat exists precisely to regulate the behaviour of armed forces (both etatic and otherwise) during wars when at least one actor isn't signatory of the convention, simply because States are the only ones who can sign.
This caveat belies the idea that there's a legal grey zone when it comes to enemy combatants who are under a non-etatic authority. It ensures that even them (along with everybody who is not active in the hostilities) can enjoy minimal protections once they're made harmless.

[mactbone]

LotM:
This is a little off the track, but I'm wondering if you have any examples of a case where degredations or other legally dubious means have gathered intel that my have potentially saved lives. From everything I've heard, extreme forms of interrogation don't yield results. In addition, I've never heard of an instance where a few minutes was the difference between life and death. I don't understand why these methods would be considered from a purely practical standpoint. If regular interrogation methods work just as well or better, then why use the legally dubious sorts?

[MichaeltheGreat]

Originally posted by Vesayen


There is no such thing as an unlawful combatant, it is a made up term for "We'll hold civilians against the rules of basic civilization" or "We'll hold soldiers against the geneva convention".

Yep, it's a made up term. Just like any other phrase in any language. In this case, it was "made up" to explicitly recognize the differences in status that were already accorded to combatants who operated in disregard of the laws and customs of war. The 1907 Hague convention didn't use the term, but used the same effective definition of lawful fighters as does the 1949 Geneva convention:

"The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

To be commanded by a person responsible for his subordinates;

To have a fixed distinctive emblem recognizable at a distance;

To carry arms openly; and

To conduct their operations in accordance with the laws and customs of war."

The Hague convention refers to individuals above as "belligerents," while the Geneva Convention refers to them as a category of prisoners of war. The big difference is that the Hague Convention refers to "laws, rights and duties of war" to state clearly that belligerents, to be afforded the rights under the convention, must adhere to the laws and duties of war, as well as conduct themselves as combatants in an organized, open, identifiable and lawful manner. Anyone who does not, is not subject to the convention.

The concept of unlawful combatants has been recognized at least since the 18th century, in the distinction between the status of privateers and pirates in the laws of naval warfare. There were no recognized conventions in the treatment of prisoners of war on land at the time, but it was commonly recognized at least within British forces that there was a difference in status between operating in uniform and not in uniform, and that combatants not in uniform, saboteurs, spies, etc. had no rights as prisoners.

The Geneva Convention, recognizing conduct of Nazi organizations such as Einheits Stielau and the Einsatzgruppen, as well as the generalized participation of groups not under control of the regular German miliarty commands, expanded and clarified the definitions of combatants and added a provision for determining whether individuals would be classed as prisoners of war under the Geneva Convention, and thus subject to its protection.

It is well established that individuals who do not meet the standards of prisoners of war do not qualify for the protections of the Geneva Convention, just as they did not qualify for the protections of the Hague Convention back during WW2. (i.e. the military tribunals and executions of Billing, Schmidt and Pernass as Einheits Stielau prisoners taken in American uniform)

So yeah, unlawful combatant is a "made up term," just like "made up term" is a made up term, just like "dumbass" is a made up term.

[MichaeltheGreat]

Originally posted by Spiffor

Yes. At the time of their capture. Not later.

Their status (whether treated as combatant prisoners, subject to Article 4 and others, or as non-combatants, subject to Article 3), is determined at their time of capture. It is not arbitrarily changed by the fact they've been in captivity for a while.

If the were not openly bearing arms, wearing a uniform or otherwise distinctly marked in a way visible at a distance, and acting as part of an organized group subject to command, they're not subject to the protections of the GC, even if they individually could not be proven to have violated laws and customs of war. However, a competent tribunal is required to make that determination on a case by case basis, and a blanket declaration by Rumsfeld is clearly insufficient.

[MichaeltheGreat]

Originally posted by mactbone
LotM:
This is a little off the track, but I'm wondering if you have any examples of a case where degredations or other legally dubious means have gathered intel that my have potentially saved lives. From everything I've heard, extreme forms of interrogation don't yield results. In addition, I've never heard of an instance where a few minutes was the difference between life and death. I don't understand why these methods would be considered from a purely practical standpoint. If regular interrogation methods work just as well or better, then why use the legally dubious sorts?

Presumably Khalid Sheikh Mohammed and Ramsi bin al Shibh have been subjected to not-very-pleasant treatment, but we have no way of knowing what information has been specifically extracted from them.

The issue with Gitmo and GC protections isn't justification of torture (however defined), which I don't think is justifiable. The issue is that if the GC applies to a prisoner, any interrogation is prohibited beyond name, rank, identifying number and date of birth.