Wednesday, October 12, 2005
Human Rights in the Balance: What's at Stake in Hamdan
From Article 2 paragraph 3 of the Geneva Convention:
"Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."
If a treaty establishes a basic human right, then such a right would not be conditioned on whether another country "accepts and applies" the treaty. It would apply unconditionally, no matter what they other side does.
The alternate view is that the Geneva Convention is a deal among countries. We will treat your captured soldiers fairly if you treat ours fairly. Such a bargain would be enforced entirely within the Executive powers of Commander in Chief and Foreign Policy.
The problem here is that soldiers don't exactly have the same "human rights" that civilians have. For example, when the officer tells you to capture the top of a hill, and there is a good chance you will get killed in the process, you don't get to argue about being deprived of life or liberty without due process of law.
A decision that the Geneva Convention is not judically enforcable simply means that the responsibility for interpreting it and enforcing it rests with the military and not with the courts. After problems with the Chinese in Korea and the North Vietnamese, the JAG lawyers are just as concerned not to establish bad precedents for future conflicts as anyone else. After all, you can be damn sure that no ACLU lawyer is likely to end up in an enemy POW camp. It will be US soldiers that have to be protected.
That said, the "human right" being protected here is not the usual POW problem. After the Germans murdered millions of Russian POWs, and the Russians murdered millions of Germain POWs, and the Japanese killed all the Americans on the Bataan Death March, and in the middle of all this discussion of torture, the "human right" here is the ability of an accused to view classified material that may be introduced into a trial. While the other side in this conflict is kidnapping civilians, "trying" them, and cutting their heads off on TV, I don't see where exactly "the latter accepts and applies the provisions thereof".
Excellent post David, but there is no need for the McCain amendment to impose penalties: they arlready exist in 18 USC 2441 (War crimes), which makes it a federal felony to commit any grave breach of the Geneva Conventions, any violation of Geneva Common Article 3, or any violation of the Hague (1907) Anex of Regulations arts. 23, 25, 27, or 28.
Notable among the Hague provisions are art. 25:
"The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited."
Which arguably includes prisons containing defenseless prisoners; and especially art. 23[h] which states:
"In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."
18 USC 2441 applies to any prohibited act by or against a US national or service member anywhere in the world, and it carries the death penalty if the offense results in the death of the victim.
As for the Hamdan decision itself, my own comments on that are available in a statement which I submitted to the Senate Judiciary Committee: Hamdan Commentary.
A few things.
(1) It seems eminently reasonable that treaties -- including this one -- is not solely in the hands of the executive power.
(2) As to foreign policy, the courts have something to do with it. Consider the role of the courts in protecting Chinese aliens in this country in the late 19th Century. Again, I do not see why the courts cannot in some fashion be involved here.
(3) The military is interested in good behavior because the opposite results in negative results in any number of situations. Again, this does not generally mean the courts do not have some authority to limit their control. To paraphrase, the civil is above the military power in this country (compare -- the Declaration of Independence)
(4) This blog has noted that military procedure still raises the question of CIA interrogation.
(5) This is not just a question of classified info etc. ... though this might include discussions on how certain evidence was determined by torture, breaking of legs with bats, etc.
(6) Of the POWs of past wars, I assume none were or became defense attorneys. Likewise, is no defense attorneys or members of the ACLU in active duty overseas now or will none be in the future?
Interesting GC article. If the SCT denies cert. in Hamdan, a definite possibility, things may heat up in the CADC. Stay tuned.
I think it is important to note that the minimum human rights are in Common Article 3 not in Article 2 of the GPW. It should also be noted, as I am sure has been said here, that the Legal Adviser at state made a devastating critique of the Yoo ideas at the time decisions on Geneva applicability were made. As to this being a new war, please note what Grotius wrote in 1625
"“Private Men may certainly make War again[s]t private Men, as a Travel[l]er against a Robber, and Sovereign Princes again[s]t Sovereign Princes, as David again[s]t the King of the Ammonites; and [s]o may private men against Princes, but not their own, as Abraham did again[s]t the King of Babylon, and his A[ss]ociates.
So may Sovereign Princes against private men, whether their own Subjects, as David against I[s]bbo[s]eth and his Party, or Strangers, as the Romans against Pirates.”
Nothing new under the sun. The focus is on security and keeping our honor clean. I think that Sandra Day O'Connor gets it and that is why this is going around like this. The interesting thing is whether by the time the case did get heard, she would be off the court and Harriet Miers in and the effect that would have on the court's decisions.
Since every nation on earth has subscribed to the Geneva Convention, one must assume that this question has been raised before. Last week the Israeli High Court ruled that the practice of using human shields was illegal because it violated the Geneva Convention. Other than Israel, are their any cases of judical enforcement of the Geneva Convention by any country in a case brought against their own military?
The Minds Limit Today
In Jean Amery's, The Minds Limit, his capture and descent into torture by German Nazi’s, starts by pointing out that his torturers showed no “banality of evil” in their faces. First there is the "laugh" and then the "first blow." The prisoner then realizes that they are "helpless." Lost is the “trust in the world.” Certainly there is no “mutual aid in nature.” No. It is time for the “business room.” But before describing his own torture the author makes “good on a promise I gave.” Not that they where not specialists in torture, but more so his conviction that “torture was the essence of Nationalist Socialism – more accurately stated, why it was precisely in torture that the Third Reich materialized in all the density of its being.”
I ask you dear citizens should we also "codify" that the detainees at Camp Xray can also be children as recently reported in the news? Not only does that sound slightly like the rule of antiman but I do believe antichild included. And if that is so then the rule practiced as such has “expressly established it as a princple.” So just what else in "essence" does go on at Camp Xray – "tricks"? Plead mercy, pray tell? And now comes Abu Grieb and CIA renditions. Were these people even registered under the Patriot Act. Refuse Himmlers offer for a Certificate of Maturity in History I would suggest. Nay, to forsake the Constitution and be depraved of our humanity would be more painful in the end Mr Rumsfeld. Slavery to torture is all you will get. Go tell that to the Marines Mr. Rumsfeld after you have tendered your resignation.
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This is an excellent post and i agree with much of the analysis.
only, it seems you concede too much plausibility to the Administration's position.
First the very notion of a 'War on Terror' is an ideological slogan. the extent of its reach is unclear and for that reason its staus as a war is disputable. i.e. the Bush co. will attempt to use it as a catchall for any action they take thereby guarranteeing an international [transnational] character. but one could conceive of the wars in Afganistan and Iraq as internal civil wars, that happen to involve foreign [U.S.] intervention: thus, the war b/t the Northern Alliance and the Taliban; or the war between the 'insurgents' and the Iraqi puupet gov't. just as for example, the South Vietnamese govt vs. The VietCong can be seen as a civil war with foreign intervention by the US and North Vietnamese. and if the intervention is sufficient to yield an 'international' conflict, why should it matter whether some players are non-state? in other words, either the position is that the Geneva conventions did not apply in anticolonial wars like the Vietnam War, or they should apply in the so-called War on Terror. the premise that the War on Terror is unique depends on quite ahistorical reasoning. many nonstate actors have fought wars within and across boundaries in the 20th century and its precisely such conflicts that the Geneva conventions are most important for.
ECS hits the nail on the head. Of course the Geneva conventions apply to the same state vs. belligerent groups scenarios we've seen across history, otherwise, everyone you want to torture is just given a new appellation: "terrorist", "enemy combatant", "al Quaeda" "al Quaeda in Iraq", "Viet Kong", etc. One must always remember to first question the underlying premise that underlies every decision made by a dictatorial tyrant such as King George. As ECS points out, "War on Terror" is a unilateral nonsensical slogan, especially when you realize that "Terror" can never walk into congress and sign papers of surrender. The same is true of "enemy combatants" - it's much like "free markets" - which let mortgage bankers "freely" engage in hucksterism and outright scandal - then come running to to the government to be "regulated markets" when they want to be bailed out with public money and want immunity from prosecution for crimes. The seizure of property, imprisonment without charges being levied against the accused, the requirement that a defendant can demand the witness appear and testify against him (no conviction on hearsay), the refusal of a right to counsel, the quartering of troops in homes - the very crimes we are committing across the globe in the name of this "War on Terror", are the very crimes our founding fathers fought against. When we wrote our constitution, the writ of habeus corpus and the Bill of Rights were not reserved only for US citizens nor only for times of domestic tranquility - they are most needed when the danger is highest, they are meaningless if we abandon them when times of unrest appear. Much like the "free speech zones" for protesters in political convention cities: I didn't know I was only allowed to exercise my right of controversial free speech when I'm penned in behind orange plastic riot fences and surrounded by riot police and attack dogs. Of course, if I say what the King wants, then I can speak anywhere...Post a Comment
What's next? Free religion zones for non-christians to be segregated? Free 4th amendment zones for people who are not wealth thy and born of royal blood to be cordoned off and searched?