Re: News Release


"Rod Engelsman" <rod.engelsman@xxxxxxxxx> wrote in message
news:dGC0g.57$Mp7.157849@xxxxxxxxxxxxxxxxx
Cliff wrote:
"Rod Engelsman" <rod.engelsman@xxxxxxxxx> wrote in message
news:smz0g.42$Nz.142448@xxxxxxxxxxxxxxxxx
Cliff wrote:

They were attacking the military targets of an invading force.
They were motivated to protecting their homeland.
Yeah... like osama bin laden was protecting his homeland Saudi Arabia.
Like the Chechens or the Pakistanis too I assume...
Osama bin Laden wasn't a member of the Taliban.

The taliban protected osama bin laden while he was in afghanistan you can
say that he wasn't a "member" your only playing with words.


And anyone other than Afghanis captured on the field of battle would
have a questionable status. But Afghani citizens attempting to repel our
invasion would have to be considered soldiers under the GC and accorded
the rights of POWs.

No they would not have. The GC is pretty darn clear on who is and isn't
an illegal combatant.
Article 4

A. Prisoners of war, in the sense of the present Convention, are persons
belonging to one of the following categories, who have fallen into the
power of the enemy:
1. Members of the armed forces of a Party to the conflict as well as
members of militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps,
including those of organized resistance movements, belonging to a Party
to the conflict and operating in or outside their own territory, even if
this territory is occupied, provided that such militias or volunteer
corps, including such organized resistance movements, fulfil the
following conditions:
(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.

What flag or "fixed distinctive sign recognizable at a distance" did
these fighters use?

Two answers:

First, given that we *did* have uniforms and they didn't, then any
native-looking greaseball firing a weapon at us would be fairly
recognizable.

Is native looking grease ball a term that the GC recognizes?

Second, you didn't read down far enough:

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.

They had plenty of time, plenty of warning to form themselves into "regular
army units". And what was spontaneous about the Afghan campaign?


Further, ANY fighters captured on the field of battle are to be accorded
> POW status until such time as a competent tribunal determines their
status. There were no such tribunals until the Supreme Court forced the
issue.


Article 5
The present Convention shall apply to the persons referred to in Article
4 from the time they fall into the power of the enemy and until their
final release and repatriation.
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.

The key element in article 5 is: "Should any doubt arise". I and many
other say "there is no doubt".....

Not a lot of doubt in my mind either, but there are mechanisms for this
sort of thing that the administration ignored.

I ma not sure that they were ignored, as the determination was already made
that there was no doubt about their staus what would be the hurry?

AFAICT, they just didn't want them to be able to "lawyer up", which I can
understand, but under our constitution may simply be unavoidable. It would
have made things less convenient, take longer, and cost more. But that's
no excuse; that's life in a constitutional republic.
And BTW SCOTUS has not made ANY decisions concerning the status of these
people. The case was just heard and a decision will not be until probably
the end of summer......maybe wishful thinking on your part?



They made at least one decision... That the detainees *do* have the right
to access our court system. A point that the BA fought tooth and nail.

They were using primarily conventional weapons of war (guns and
bombs).

And just what does this have to do with the Geneva conventions?

It would strengthen the case for considering them soldiers rather than
criminals. It's one factor among many.

One factor that is again not covered under the GC.

There is no definition of "illegal combatants" in the GC, which is the
controlling authority in international law concerning war.

It does not matter what you call them, they are not entitled to the
protections of the GC so let's just change that name shall we? Lets call
them "people who do not warrant the protection of the Geneva
Convention"...does that make you feel better?


No one falls outside the protection of the GC. You are either a POW, a
Protected Person, or a War Criminal. In no case are you beyond the reach
of law.

I disagree, the GC is plainly a set of rules that you follow if you wish to
be treated under the conditions of the GC. Do not follow the rules of war
and the GC does not apply. Otherwise you would see a clause that is
explicit.

For the above reasons, I conclude that the captured Taliban are
entitled to the protections of the Geneva Convention.
Your conclusions are ludicrous and have no legal basis whatsoever.
Possibly a case of wishful thinking on your part because you do not
agree and you wish to condemm those who you do not agree with.
My conclusions are far from ludicrous.

It is certainly ludicrous. Maybe it wouldn't be if you could not read.

They are shared by a great many people and organizations including
Amnesty International, the International Red Cross, and Human Rights
Watch. No less authority than the Supreme Court of the US has weighed in
on the matter and found the Bush administration to be breaking the law
in holding the Gitmo detainees indefinitely without status hearings as
prescribed by the GC.

Remember the little bit of text that says "Should any doubt arise". Still
means the same thing in this context....

The fact that there is disagreement is de facto proof of "doubt arising".

And that is really a moot point to begin with as the prisoners are being
treated as they are prisoners of war. The only difference is what standard
they fall under not that they cannot be held.

"Should any doubt arise as to whether persons, having committed a
belligerent act..." is a prisoner of war "...such persons shall enjoy the
protection of the present Convention until such time as their status has
been determined by a competent tribunal."


.

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