This got me thinking:



If Al Qaeda is not clearly sponsored by a state, and we hold ourselves to the GC but the enemy does not, how can we try them by the same rules in a court of law? I'm assuming shades-are-raised has an answer... The reason I ask because if we engage under the rules of the GC, and they don't, they are clearly in violation of the GC as we see it. However, because they are not state sponsored, and do not recognize the GC, and because that is a treaty ratified only by certain and specific nations, then they technically are not required by law to adhere to that, correct?

It's early and I'm confused.

Good question. Off the top of my head, I feel like any group that resides in a state that has signed and ratified the GC should be held accountable to it as well. But my knowledge is very limited about this heh, so I'm interested in a response too.

But we have to define "reside". Illegal residences should not withstand this test, I assume... I dunno. I've researched it and come up with nothing. (Haven't gone to Lexus Nexis yet...)

Well yeah. There's going to be subjectivity involved in this however you slice it.

I thought the GC referred to the sponsored actions of the state, not individual actions of residents.

I'm with you CW.

Well in the case of terrorists, sponsorship would mean terrorist actions (Like the PLO) would fall under GC rules. I assume. Al Qaeda, an international congolmerate, as I interpret it, is not subject to GC rules. But the US is. My argument, I think, is that this weakens our ability in fighting them. The standards are set; everytime a terrorist blows up a bus in the West Bank he's pretty much absolved because he's a terrorist. Everytime an AC130 blasts a wedding party to pieces, the crew and the chain of command now consists of war criminals.

No need to worry about being a war criminal and being sent to the Hague. Your country didn't sign on for that one. So you can do what you like (as you always do) and not have to pay for your war crimes. Remember Bush ripping into Kerry for that in debate #1. Bush was all happy he could kill people and get away with it. Al-Q is not the only people who kill innocent people who don't adhere to the rules of the world.

"You can't escape from the common rule
if you hate something, don't you do it too"

anyway your question is invalid because never adhere to them anyway...we've been condemned by the UN and World Court for war crimes, odd how the liberal media never really talks about that....kinda like the press ran Pol Pot to death but ignored the US sponsored genocide in East Timor AT THE SAME TIME.

sorry, you like things in one sentence....

we never followed the rules anyway

I'm not dignifying that last post with a response. Its just completely inaccurate. US condemned by ICJ of war crimes? Gimme a break.

As to Sunny's question:

This is an area of significant debate, the applicability of the Geneva Conventions and Additional Protocols to the "war on terror".

I'll have to sit dow with the treaties and work it out properly to give you an accurate answer. And I need to do that anyway within the next week since I have a test on it, so thanks for the question on both fronts.

The gist of it is that the laws of war generally (international humanitarian law), of which the GCs and APs are a part, only ever kick in if there's an armed attack. If there are no hostilities, they are inapplicable.

There are 4 Conventions altogether, (I - treatment of wounded and sick on land; II - treatment of wounded and sick at sea; III POWs; IV - Civilians)

Clearly II is irrelevant for our purposes here.

They were drafted after WWII and entered into force in 1949. Obviously back then, the notion of hostilities only made sense in a state vs state context.

So generally, the conventions only ever applied as between states. What ended up happening was that wars of national liberation (internal) became more frequent than state v state wars, so the GCs were rendered useless.

That's why the Additional Protocols were drafted. Note that the US did NOT ratify AP I, but there's much talk about the customary status of many of its provisions. (if an article is customary, it doesn't matter if you've signed it or not, you are bound). The ICRC recently published a definitive guide on this, but it's hell expensive right now and very few people have access to it (dumb, I know - it's freaking law - should be available to everyone)

As for whether the US must abide by the GCs while Al Qaeda doesn't. I can't give you a satisfactory answer right away. What I can say is that reflecting on my comment that started this thread: I think I made a mistake. Actually, non-state belligerent parties CAN agree to be bound by the GCs and APs. Usually in international law, that is not the case. Only states can do that, but I think the GCs are an exception.

So technically, Osama bin Laded could come out and say: "we bind ourselves to the rules of the GCs".

But this is completely moot, 'cos its never going to happen. So let's just stick with the situation where the US is fighting against non-state forces in foreign territory.

There's an answer, but I need to do some work first. I'll be back.

I have a question: Were the prisoners at Abu Graib Iraqi citizens or were they all foreign terrorists?

If some were citizens then we violated the GC.

Watching Frontline tonight on "Rumsfeld's War", I have to side with the Army and the JAG Corps when they said that by skirting the GC, we created a situation such as what happened at Abu Graib and Gitmo.

I also side with Powell and the former Chief of Staff Hoar in that more "boots were needed on the ground" to properly secure Iraq post-regime change. Granted the regime fell with the smaller force, but we did not have enough to sucessfully supress the insurgency.

I personally think the blame rests with the civilian leadership in the Pentagon, and in particular, Wolfowitz and Rumsfeld. Had the Powell Doctrine been followed and had Powell himself been more convincing, things may have went better than they have. Powell's Doctrine was followed in the first Gulf War (overwhelming force, heavy arms, exit strategies-all in place to try and limit casualties) would have worked if applied to the present war. In other words, go in full strength and get the job done properly. The problem with that, was gaining full support for the war to begin with, and General Shinseki, Powell, and the rest of the army was not completely sold on the idea and especially not on Rumsfelds and Gen. MacGregor's small invasion force plan. In the end, Powell fell in line behind his president and the war went on....not exactly as Rumsfeld had planned but close.

Currently, we are trying to get the Iraqis to defend themselves...partially because the US military is stretched quite thin and needs an exit.

The GC has been tossed aside, the JAG Corp has been neutered, the US Military is still fighting to keep the interim Iraqi government afloat, and many questions and concerns over the future of Iraq and the US military still have yet to be answered.

My take: We should have stuck with the GC for all combatants so as to avoid the chaos and indecision that has come as a result (i.e. those guarding do not have rules to follow....rules of interrogation have been tossed).

Here is a wonderful synopsis of the Military and Rumsfeld:

http://www.pbs.org/wgbh/pages/frontline ... nagon.html

wow wow wow... wait a second...

it's not that easy... this is law we're talking about

You have to look at specific articles of the Conventions, look at whether or not those articles are applicable to the parties involved (to this end, ratification, reservations and the customary status of provisions will be relevant), and then see if the law applies to the facts (to which careful analysis of the provisions is once again necessary.

Unless you are an international lawyer specialising in IHL, I'd be a little cautious accepting your claims off the bat.

But I'll say this to your quote above:

The GCs may well have been violated even if they were "foreign terrorists". And failing that, it certainly violates the Torture Convention. No one is supposed to be attacked naked by dogs, or supposed to simulate sexual acts or stand on a box with a hood wired up to an electrical current (or made to believe so).

That's just unacceptable regardless of the status of the detainees purely from customary principles of humanity (a vague term to be sure, but clearly applicable here).

But as to whether the GCs and APs have any specific applicability in the war on on terror, it's going to take a little more thought and actual grafting. I will get to this sooner or later. I promise.

Just came back to add:

the more serious question about Abu Ghraib is the fact that the prison was run by private contractors (probably still is).

This poses problems of State Responsibility, because usually a state can only be held accountable for acts of its people in official capacities not of individuals unless somehow those acts can be attributed to the state.

I don't see too much difficulty in doing that, but it is a mjor point of discussion.

I really wanted this thread to stray from controversy (abu ghraib). Thanks shades, take your time, maybe PM me when you're done?

I just remember sitting my emergency response and terrorism preparedness class and my professor stating, "There are no clear definitions for terrorism," before she showed us nearly 8 different agency based definitions, and that's just domestic shit.

You're right, it's all the law.

Well if you are going to use the private contractors into the equation. You could use that arguement for the people who get paid by B.Ladin to blow themselves up. They are hired goons. These people are not stupid. And any law the states can bend is now being done by everybody else because they see no leader of the US ever go up for trial.

Yep. Add to that 12 or 13 international treaties on terrorism with no consensus (and most often, no attempt) to define terrorism.

Funny isn't it. We have a "war" against it, but we can't define it.

(usually the problem is that countries who have been liberated by movements like the ANC, and eventually, yes, the PLO would fall under the umbrella of "terrorists". Mucho problemo there...)

I'll drop you a PM no worries.

How's a bout i give you a link instead??

http://www.icj-cij.org/icjwww/icases/in ... 860627.pdf

paragraph 118.
"The Court will therefore concentrate its attention on the other manual, that on "Psychological Operations". That this latter manual was prepared by the CIA....A sections on "Implicit and Explicit Terror".....Reference is made to the possibility that "it should be necessary....to fire on a citizen who was trying to leave the town", to be justified by the risk of his informing the enemy. Furthermore, a section on "Selective Use of Violence for Propagandistic Effects" begins with the words "It is possible to neutralize carefully selected and planned targets, such as court judges, mesta judges, police and State Security Officials, CDS chiefs, etc..."
In a later section on "Control of mass concentrations and meetings", the following guidance is given:
"If possible, professional criminals will be hired to carry out specific selective 'jobs'.....taking the demonstrators to a confrontation with the authorities, in order to bring about uprisings or shootings, which will cause the death of one or more persons...a situation that should be made use of immediately against the regime in order to create greater conflicts."

para 215.
The Court has noted above (para 77) that the United States did not issue any warning or notification of the presence of the mines which had been laid in or near the ports of Nicaragua. Yet even in time of war, the Convention relative to the laying of automatic submarine contact mines of 18 October 1907 (The Hague Convention No. VIII) provides that "every possible precaution must be taken for the security of peaceful shipping" and belligerents are bound "To notify the danger zones as soon as military exigencies permit, by a notice addressed to ship owners, which must also be communicated to the Governments through the diplomatic channel" (Art 3).

It has already been made clear above that in peacetime for one State to lay mines in the internal or territorial waters of another is an unlawful act; but in addition, if a State lays mines in any waters whatever in which the vessels of another State have rights of access of passage and fails to give any warning or notification whatsoever, in disregard of the security of peaceful shipping it commits a breach of the principles of humanitarian law"

para 238.
Accordingly, the Court concludes that the plea of...self-defence...advanced by the United States to justify its conduct toward Nicaragua, cannot be upheld; and accordingly that the United States has violated the principle prohibiting recourse to the threat or use of force by the acts listed in para 227 above, and by its assistance to the contras to the extent that this assistance "involves a threat or use of force"

para 251.
The effects of the principle of respect for territorial sovereignty inevitably overlap with those of the principles of the prohibition of the use of force and non-internintervention; The the assistance to the contras, as well as the direct attacks on Nicaraguan ports, oil installations, etc... referred to in para 81-86 above, [b[not only amount to an unlawful use of force but also constitute infringements of the territorial sovereignty of Nicaragua...[/b] Similarly, the mining operations in the Nicaraguan ports not only constitute breaches of the principle of non-use of force, but also affect Nicaragua's sovereignty over certain maritime expanses. THe Thert has in fact found that these operations were carried on in Nicaragua's territorial or internal waters or both (para 80) and accoaccordinglyy constitute a violation of Nicaragua's sovereignty. The priprinciple respect for territorial sovereignty is also directly infringed by the unauthorized overflight of a State's territory by aircraft belonging to or under the control of the government of ananothertStatenbsp; THTheourt has found above that such overflights were in fact made (para 91)

para 252.
These violations cannot be justified either by collective self-defence, nor by any right of the United States to take cocountermeasuresnvolving the use of force.....Accordingly, such actions constitute violations of Nicaragua's sovereignty under customary international law.

para 253.
At this point it will be convenient to refer to another aspect of legal implications of the mining of Nicaragua's ports. As the Court has indicated in para 214, where the vessels of one State enjoy a right of access to ports of another State, if that right of access is hindered bby thelaying of mines, this constitutes an infringement of the freedom of communications and maritime commerce. This is clearly the case here. It is clear that interference with a right of access to the ports of Nicaragua is likely to have an adverse effect on NNicaragua'seeconomyand its trading relations with any State whose vessels eenjoythe right of access to its ports. Accordingly, the Court gfinds in the context of the ppresentpproceedingsbetween NNicaraguaand the United States, that the laying of mines in or near NNicaraguanports constituted an iinfringementto NNicaragua'sddetriment of the freedom of communications and of maritime commerce.

para256.
The Court has however found (para 121) that at the relevant time those rresponsiblefor the issue of the manual were aware of, at the least, allegations that the behaviour of the contras in the field was not consistent with humanitarian law; it was in fact even claimed by the CIA that the purpose of the manual was to "moderate" such behaviour. The publication and dissemination of a manual in fact containing the advice quoted above must therefore be regarded as an eencouragement which was likely to be effective, to commit acts contrary to general pprinciplesof international humanitarian law reflected in treaties.

para 268.
In any event, while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect. WWithregard to the steps actually taken, the protection of human rights, a strictly humanitarian oobjective cannot be ccompatiblewith the mining of ports, the destruction of oil installations, or again with the training, arming, and equipping of the contras. TThecourt concludes that the argument dderivedfrom the preservation of human rights in Nicaragua
cannot afford a legal justification for the conduct of the United States

para 280.
The Court has thus found that the United States is in breach of a duty not to ddeprivethe 1956 FCN Treaty of its object and purpose and has committed acts which are in contradiction with the terms of the Treaty.

para 284.
The Court considers appropriate the request of Nicaragua for the nature and amount of the reparation fuer to it to be determined in a subsequent phase of the proceedings.
para 286 By its Order of 10 May 1984, the Court indicated "The United States of America should immediately cease and refrain from any action restricting, blocking or endangering access to or from Nicaraguan ports, and, in particular, the laying of mines."

para 288.
The right to sovereignty and to political independence possessed by the Republic of Nicaragua, like any other State of the region or of the world, should be fully respected and should not in any way be jeopardized by any military and paramilitary aactivitieswhich are prohibited by the principles of international law, in particular the principle that States should refrain in their international relations from the threat or use of force against the tTerritorialintegrity or the political independence of any State, and the principle concerning the duty not to iintervenein matters within the domestic jurisdiction of a State Principles embodied in the United Nations CCharterand the Charter of the Organization of AAmericanStates.

para 290.
In the present JJudgment the Court has found that the Respondent (United States), has by its activities in relation to the Applicant (Nicaragua) violated a number of principles of customary international law

para 292.
....(2) By 12 votes to 3 REJECTS the justification of collective self-defence maintained by the United States of America in connection with the military and paramilitary activities in and against Nicaragua the subject of this case.

(3) By 12 votes to 3 DECIDES that the United States of America, by training, arming, eequipping financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua has acted against the Republic of Nicaragua in breach of its oobligationunder ccustomaryinternational law not to intervene in the affairs of another State.

(4) By 12 votes to 3 DECIDES that the United States of America, by certain attacks on Nicaraguan territory in 1983-1984, namely attacks on Puerto Sandino on 12 Sept and 14 Oct 1983; an attack on Corinto on 10 Oct 1983; an attack on Potosi Naval Base on 4/5 Jan 1984; an attack on San Juan del Sur on 7 Mar 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 Mar 1984; and an attack on San Juan del Norte on 9 Apr 1984; and further by those acts of intervention referred to in subparagraph (3) herof which involve the use of force, has acted aagainst theRepublic of Nicaragua in breach of its obligation under customary international law not to use force against another State

(5) by 12 votes to 3 DECIDES that the United States of America, by directing or authorizing overflights of Nicaraguan territory, and by the acts imputable to the United States referred to in ssub para(4) hhereof has acted against the Republic of Nicaragua in breach of its obligation under customary iinternationallaw not to violate the vsovereigntyof aanotherState.

(6) by 12 votes to 3 DECIDES that by laying mines in the internal or territorial waters of the Republic of Nicaragua during the first months of 1984 the United States of America has acted against the Republic of Nicaragua in breach of its obligations under customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce.

(8) By 14 votes to 1 DECIDES that the United States of America by failing to make known the existence and location of the mines laid by it, referred to in sub para (6) hereof, has acted in breach of its obligation under customary international law

(9) by 14 votes to 1 FINDS that the United States of America by producing in 1983 a manual entitled Operaciones sicologicas en guerra de guerrillas and disseminating it to contra forces has encouraged the commission by them of acts contrary to general principles of humanitarian law
then lists specific treaties that were violated and orders the US to make reparations...

and gee, here's how the feel about iraq...

http://www.icj.org/news_multi.php3?id_mot=342

"The ICJ condemns the illegal invasion of Iraq in the clear absence of Security Council authority -this constitutes a great leap backward in the international rule of law."

"The ICJ today expressed its deep dismay that a small number of states are poised to launch an outright illegal invasion of Iraq, which amounts to a war of aggression. The United States, the United Kingdom and Spain have signaled their intent to use force in Iraq in spite of the absence of a Security Council Resolution. There is no other plausible legal basis for this attack. In the absence of such Security Council authorization, no country may use force against another country, except in self-defence against an armed attack."
"There is no justification in International Law for the United States of America's proposed attack on Iraq. There is no right for any country to carry out "pre-emptive" strikes.",

another nice article
http://www.icj.org/news.php3?id_article=2637&lang=en
"The ICJ is greatly alarmed at unprecedented moves by the United States to hold the new International Criminal Court (ICC) hostage to threats to veto the extension of the United Nations peacekeeping mission in Bosnia (UNMBIH). US fears that its peacekeepers will face politically motivated prosecutions are unfounded as the ICC can only exercise its jurisdiction once remedies in national courts are exhausted."

That includes Reagan vetoeing a UN resolution on terrorism, btw

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Ex-Guantanamo Detainees from Britain Sue Rumsfeld
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Oct 27, 2:04 PM (ET)


WASHINGTON (Reuters) - Four British ex-inmates of the U.S. detention center at Guantanamo Bay sued Defense Secretary Donald Rumsfeld and others on Wednesday saying they were tortured in violation of U.S. and international law.

The four former detainees are seeking $10 million in damages but primarily want Rumsfeld and other defendants to be held accountable for their actions, said Eric Lewis, the lead lawyer in the case.

"This is a case about preserving an American ideal -- the rule of law," Lewis said at a news conference. "It is un-American to torture people. It is un-American to hold people indefinitely without access to counsel, courts or family. It is un-American to flout international treaty obligations."

The plaintiffs are Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed, all of Tipton, England and Jamal al-Harith of Manchester. Al-Harith was picked up in Pakistan and the other three in Afghanistan after the 2001 U.S. Afghanistan invasion.

The federal court suit alleges they faced repeated beatings, death threats, interrogation at gunpoint, forced nakedness and menacing with unmuzzled dogs, among other mistreatment, during more than two years at Guantanamo Bay.

The Pentagon had no immediate comment on the suit.

The Bush administration has had several legal setbacks in its policy of detaining suspects, including at the Guantanamo Bay Naval Base on Cuba, without charges and without legal representation.

The latest suit charges the Defense Department chain of command authorized this treatment, in violation of the U.S. Constitution, the Geneva Conventions and other laws.

All four were released without in March 2004 and returned to England.

Besides Rumsfeld, the suit also names Gen. Richard Myers, chairman of the U.S. Joint Chiefs of Staff; Maj. Gen. Geoffrey Miller, former commander at Guantanamo Bay Naval Base; Gen. James Hill, commander at U.S. Southern Command, as well as other named officials and up to 100 "John Does" who allegedly were "involved in the illegal torture of plaintiffs" at Guantanamo.

Right, so the ICJ found against the US in Nicaragua. The US were said to have violated the principles of non-use of force and non-intervention. Both in customary international law because the US had a reservation to the Statute of the ICJ which made it impossible to bring an action against them on breach of obligations arising from multilateral treaties (like, the Charter). Therefore the dancing around. The of course famously withdrawing their consent to the ICJ's jurisdiction altogether a few days before the judgment was handed down. I know my Nicaragua thank you very much.

But you said they found the US guilty of "war crimes".

That is nonsense. War crimes is an offence of an individual. The ICJ only deals with states. War crimes is what people like Goering were convicted of at Nuremberg. War crimes is part of what the Rome Statute gives the ICC jurisdiction over.

Nicaragua, had nothing to do with war crimes.

If we're going to use international law to condemn the US, at least let us do it accurately.