question about The Geneva Convention

[Eric J in MN]

Is this accurate?
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Under the Geneva Convention, a prisoner is a combatant, a civilian, or a criminal.

Combatants and civilians cannot be harmed.

If a prisoner is suspected of being a criminal, there can be a trial after which he will be punished if convicted.

The Bush Administration decided it could label any prisoner it suspected of belonging to Al Quaeda a criminal/"illegal combatant" and harm those prisoners, without a trial.

[Spazito]

1. Here is the pertinent information you are looking for, I think...

Geneva Convention relative to the Protection of Civilian Persons in Time of War


Article 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

http://www.unhchr.ch/html/menu3/b/92.htm

[Eric J in MN]

2. If they suspect someone of belonging to Al Quaede, then they

If they suspect someone of belonging to Al Quaede, then they suspect him of taking an "active" part in hostilities, so that doesn't exactly apply.

My question is what is supposed to done with someone suspected of waging war but not in uniform.

[htuttle]

4. This is addressed fairly directly in Article 5

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

So at the worst, they should be treated as POWs until they are given a trial to prove or disprove the charges at the earliest opportunity. There simply isn't ANY case where someone has NO protections under the Geneva Conventions, uniform or no uniform.

[htuttle]

5. More...here's Human Rights Watch's take on this

http://www.hrw.org/press/2002/01/us012802-ltr.htm

U.S. Officials Misstate Geneva Convention Requirements

January 28, 2002

The Honorable Condoleezza Rice
National Security Advisor
The White House
Washington, DC

Dear Ms. Rice,

We write concerning the legal status of the Guantanamo detainees. Our views reflect Human Rights Watch's experience of over twenty years in applying the Geneva Conventions of 1949 to armed conflicts around the world. We write to address several arguments advanced for not applying Article 5 of the Third Geneva Convention of 1949, which, as you know, requires the establishment of a "competent tribunal" to determine individually whether each detainee is entitled to prisoner-of-war status should any doubt arise regarding their status. Below we set forth each of the arguments offered for ignoring Article 5 as well as Human Rights Watch's response.
(snip)

Argument: The Geneva Conventions do not apply to a war against terrorism.

HRW Response: The U.S. government could have pursued terrorist suspects by traditional law enforcement means, in which case the Geneva Conventions indeed would not apply. But since the U.S. government engaged in armed conflict in Afghanistan - by bombing and undertaking other military operations - the Geneva Conventions clearly do apply to that conflict. By their terms, the Geneva Conventions apply to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties." Both the United States and Afghanistan are High Contracting Parties of the Geneva Conventions.

(much more at link)

[Eric J in MN]

7. thanks, I think "such persons shall nevertheless be treated with humanity"

Thanks, I think "such persons shall nevertheless be treated with humanity" is the most important clause.

Beating prisoners and humiliating them isn't consistent with that clause.

[doc03]

3. I remember back in the first Gulf war when the Iraqis displayed

the pilot Zahn on TV, Bush Sr. went nuts saying it was against the Geneva Convention to publicly display a POW and Saddam would be held responsible for war crimes. Now we do far worse and it is a "fraternity prank."

[bigbillhaywood]

6. Also spies-- they don't have the same rights as other POWs. For example,

a spy may be executed in custody. As far as I can tell, this "illegal combatant" stuff is a new classification created by the Bush admin. to deny Al Qaeda and Taliban Geneva Convention POW rights. You could probably make an argument that non-uniformed terrorists like Al Qaeda could be classified as spies, but those who engage in conventional guerilla warfare like the Taliban should probably be treated as enemy combatant POWs with the same protections under Geneva or Hague that any American infantryman would be entitled to.

[Gothmog]

8. It is a little more complicated.

First there are several Geneva Conventions. The most relevant is the Third set which deals with POWS. There are other Geneva Conventions that apply to civilians in occupied territories that may be relevant to the Iraq prisoner scandal.

Article 5 of the Geneva Convention dealing with POWS and Article 45 of the Protocols (the legislative history for the GC) provides that any person captured on the battlefield is entitled to POW status unless and until a competent tribunal determines that such person is not eligible for POW treatment. There is a legal presumption that a battlefield detainee is entitled to POW status unless and until a competent tribunal rules to the contrary. There are standards for being a POW such as being part of a military force or wearing an uniform that the Al Qaeda detainees may or may not qualify under. The Taliban detainees clearly meet the requirements for POW status under the GC (unless you buy some bizarre interpretations from some RW wing nuts).

Rummy and Bush decided early on that they did not want the courts involved in determining how to deal with the detainees and so the Bushies decided to chunk the competent tribunal requirement of Article 5 of the GC and instead just decreer that the detainees are "enemy combatant" which is a term not used in international law or the GC. The theory was that Cuba was a black hole where the US courts did not have jurisdiction and therefore the detainees could be interrogated as Rummy and Bush saw fit.

Denying the detainees POW status was the excuse or justification that allowed the interrogators to torture and to use the methods seen in Iraq to extract information. General Miller was in charge of Gitmo and went to Iraq to help Gitmoized the Iraqi prison system.

I hope that this explanation helps.

[Spazito]

9. Here is a great article that relates to the question of War Crimes...

and the bush admin.

Memos Reveal War Crimes Warnings
Could Bush administration officials be prosecuted for 'war crimes' as a result of new measures used in the war on terror? The White House's top lawyer thought so

May 17 - The White House's top lawyer warned more than two years ago that U.S. officials could be prosecuted for "war crimes" as a result of new and unorthodox measures used by the Bush administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue.

The concern about possible future prosecution for war crimes—and that it might even apply to Bush adminstration officials themselves— is contained in a crucial portion of an internal January 25, 2002, memo by White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges President George Bush declare the war in Afghanistan, including the detention of Taliban and Al Qaeda fighters, exempt from the provisions of the Geneva Convention.

In the memo, the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes—defined in part as "grave breaches" of the Geneva Conventions. Noting that the law applies to "U.S. officials" and that punishments for violators "include the death penalty," Gonzales told Bush that "it was difficult to predict with confidence" how Justice Department prosecutors might apply the law in the future. This was especially the case given that some of the language in the Geneva Conventions—such as that outlawing "outrages upon personal dignity" and "inhuman treatment" of prisoners—was "undefined."

more

http://msnbc.msn.com/id/4999734/