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WikiLeaks' Assange fights extradition to Sweden

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posted on Feb, 8 2011 @ 08:51 AM
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reply to post by Xcathdra
 


What exactly is the standing law in Sweden which you believe Assange's team are trying to bypass with British law? Are people routinely arrested in Sweden before being interviewed in this sort of circumstance?




posted on Feb, 8 2011 @ 09:33 AM
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reply to post by TrueBrit
 


I am referring to the legal strategy being used by Assanges team. In the link I posted a few back, it showed part of the argument they used in British Court. It references British Law as a basis to refuse extradition to Sweden. The judge has already shot down part of the argument in terms that Sweden has appropriate methods in place to protect against wrongful prosecution.

The argument being made by Assanges team is an effort to use the laws of Britain in an effort to undermine the laws of Sweden (See part 6 and 7 below). Its an intresting legal strategy, but I dont think its going to work in the end.

Should be intresting.

EDIT to add:
Source


(1) Ms. Ny was not eligible to issue the EAW.

(2) Ms. Ny is not “a judicial authority”. (3) These proceedings are an abuse of process because the warrant is being sought for a

collateral purpose, namely so as forcibly to bring Mr. Assange to Sweden for questioning, without any fixed intention at the time of its issue to charge or arrest or prosecute him.

(4) The EAW is not a Part 1 warrant for the purposes of section 2(3)(b) of the Act, because it is not issued “with a view to his arrest … for the purpose of being prosecuted for the offence” and/or because it fails to provide sufficient particulars under s2(4)(c) of the Act because the offences are not described with sufficient particularity.

(5) The application for the EAW is disproportionate given the prosecutor’s refusal to resort to mutual legal assistance or to question Mr. Assange by telephone, videolink, Skype, on affidavit or during his proffered attendance at the Swedish Embassy or New Scotland Yard.

(6) Offences 1-3 do not constitute extradition offences because the conduct alleged would not amount to an offence under English law.

(7) Offence 4 is not an extradition offence because the conduct does not fall within the European Framework offence of rape.

(8) The extradition of Mr. Assange to Sweden would involve the real risk of a flagrant denial of his human rights, especially because the trial would be held in secret. Sending him abroad to face a trial where justice would not be seen to be done would blatantly offend the UK’s due process and open justice traditions, and breach Article 47 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) (Charter) and Article 6 of the European Convention on Human Rights.




edit on 8-2-2011 by Xcathdra because: (no reason given)

edit on 8-2-2011 by Xcathdra because: (no reason given)

edit on 8-2-2011 by Xcathdra because: (no reason given)



posted on Feb, 8 2011 @ 09:54 AM
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He should not be executed. he is NOT an American citizen and therefore has committed no treason. the US should take measures to stop the leaks, but even with Assange dead wiki leaks will still exist. he is just the face, not the organization its self



posted on Feb, 8 2011 @ 10:24 AM
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Originally posted by Xcathdra
As far as Augusto Pinochet goes there is some info you are missing. Pinochet was not arrested by the Chilean Government, and they did not strp him of immunity.

There must be some communication problem here. This is from the link you cited—

But in the Operation Colombo case involving the killing of 119 dissidents, the [Chilean] Supreme Court decided on 14 September to strip Pinochet of his immunity. (...)
On 9 September, Pinochet was stripped of his immunity by the Supreme Court. Judge Alejandro Madrid was thus able to indict him for the kidnappings and tortures at Villa Grimaldi.


The British Government arrested him under the legal framework of Universal Jurisdiction. He was neverr charged in England and was returned to Chile in 2000 for health reasons.
If the British government arrested him it, automatically, means they decided to strip him of his immunity, or that the diplomatic immunity couldn’t protect him from prosecution for the crimes he was accused of. Again from the link you cited—

There was a hard-fought 16-month legal battle in the House of Lords, the highest court of the United Kingdom. Pinochet claimed immunity from prosecution as a former head of state under the State Immunity Act 1978. This was rejected, as the Lords decreed that some international crimes, such as torture, could not be protected by former head-of-state immunity.



Bringing up Pinochet though you did hit one nail on the head - The Chilean Government had to strip him of his immunity from prosecution.
And I’m yet to understand, from your post and references to the Pinochet prosecution, why the same couldn’t happen to Bush.


Switzerland cannot strip Former President Bush of Immunity as a head of State no more than Pakistan can strip the US Diplomat accused of shooting 2 people of his diplomatic immunity, and just as the US could not strip the former Georgian Diplomat of Diploomatic immunity when he got drunk and drove, killing an American citizen in the process.
Those situations aren’t really comparable, because those situations wouldn’t fall under the doctrine of universal jurisdiction, which, from your post, you accepted it can be used by a foreign state to arrest and prosecute a former head of state (i.e. Pinochet). But what Bush is accused of, and what people in Switzerland are accusing him of, would most likely would.



posted on Feb, 8 2011 @ 11:32 AM
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reply to post by aptness
 


No communication problem at all. Britains arrest of Pinochet was done under the doctrine of Universal Jurisdiction. Not all countries accept that legal framework. Britain actually violated Pinochets soveirgnety as a head of State in an effort to charge him with crimes. They never got around to it because of his health, and he was sent back to Chile.

Pinochet not only had immunity as President, but immunity afterwards when he was named Senator for life. As I said they had legal arguments back and forth, chargin and dismissing those charges in the Chilean courts. The Chilean legislature passed a law granting immunity to ex presidents because Pinochet gave up his status as a Senator for life.

The courts once again went after him, and again it was a back and forth process. Since pinochet never made it to any trial, there is no established case law.

In the end the Chilean Government was making their arguments that he should not have immunity for his crimes.

The actions of Britain technically violated the immunity granted to heads of States, under the argument of Universal Jurisdiction. Essentially Britains position was they were ignoring any immunity he supposedly had in order to prosecute him.

2 legal theories in conflict, both of which violate their respective laws and standings.



posted on Feb, 8 2011 @ 11:54 AM
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Originally posted by Laurauk
Originally posted by backinblack


Latest update:

Wikileaks' Assange inquiry by Sweden 'improper'


Swedish prosecutors did not follow "proper procedure" while investigating rape claims against Julian Assange, a UK extradition hearing was told.

Sven-Erik Alhem, a witness, said it was "quite peculiar" that authorities did not get the Wikileaks founder's version of events before seeking his arrest.

Lawyers acting for the prosecutors said repeated attempts were made to persuade him to submit himself to an interview.

Mr Assange, 39, denies claims of sexual assault against two women.


As far as making himself available to be interviewed


He has argued he was willing to give his side of the story after rape allegations were made against him and Sweden's decision to arrest and extradite him was disproportionate.

But Clare Montgomery QC, representing Swedish prosecutors, said that in September last year Mr Assange - who had been in the country - was invited several times to give his response, but his lawyers were unable to contact him.

Authorities made an unsuccessful search for him and then learned that the Wikileaks founder had left for the UK. The attempts to interview him continued into October - Mr Assange offered to speak via videolink or phone, but this was turned down because of the seriousness of the allegations.

Swedish prosecutors decided he had become what they called an obvious flight risk and it was not unreasonable to detain him.


As far as the rape comments go:


The second witness, Mr Assange's Swedish lawyer, Bjorn Hurtig, said the alleged crime was downgraded from "rape of the normal degree" to rape of a lesser degree following discussions with Sweden's Court of Appeal.


More info is in the article. The hearing will reconvene on February 11th for a half day.



posted on Feb, 8 2011 @ 01:03 PM
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Originally posted by Xcathdra
Since pinochet never made it to any trial, there is no established case law.
There was no conviction because the guy died, but when it comes to the issue of immunity it’s quite clear that the courts — both Britain’s House of Lords and Chile’s Supreme Court — ruled that his immunity couldn’t protect him from some the crimes he was accused of, otherwise they couldn’t arrest much less charge him.

What is your opinion though? I’m trying to understand. You feel Pinochet enjoyed absolute immunity for all his crimes? No Court could try him?



posted on Feb, 8 2011 @ 04:51 PM
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reply to post by aptness
 


The British courts never stripped him of immunity, they just opted to ignore it. Chile didnt strip him of immunity either, instead going the same route as Britain.

Personally speaking I think elected officials (head of state) should have immunity since they will never ever make all of the people happy all of the time. As far as crimes go, I really do think its a case by case basis and dependant upon the totality of circumstances. Allowing a President to be subject to the criminal justice system while in office would result in nothing but depositions and testifying since anytime he did something someone did not agree with, they would take legal action.

Bush did what he thought was best in terms of protecting the US and its people from terrorism. People in this country, as well as other countries, dont agree with his decisions, and thats fine. However they do not have all of the information the PResident gets, so when action is taken people view it as "draconian" or "illegal". Without all the info I can see how people can come to that conclusion.

The universal jurisdiction argument to me is hypocritical. We can use Switzerland as an example, since it was part of the earlier conversation. Universal jurisdiction is the premise that if a crime is committed by one country that has an effect on another country, that country can take legal action.

That argument ignores the flip side of the coin. The argument can be made that Bush acted under universal jurisdicition when we were attacked on Sept 11th by extremists. To take it one step further, why arent these countries who go off on the US not directing equal intentions towards say China, or Saudi Arabia etc?

To me their is a difference between rounding people up in the middle of the night because they are part of the opposite political party (pinochet) and taking actions to protect the country and its citizens from people intent on doing harm.

In the end it should be up to the people to hold their leader accountable. I am gonna leave it at this for right now as I have some other stuff going on thats distracting me. I will add more / clarify some of my comments later on tonight.



posted on Feb, 8 2011 @ 06:18 PM
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Originally posted by Xcathdra
The British courts never stripped him of immunity, they just opted to ignore it. Chile didnt strip him of immunity either, instead going the same route as Britain.
You clearly have some objection to the use of the term, even though it is the term used by the link you cited, but it seems to me this is just a matter of semantics now.

You insist on saying Britain and Chile “ignored Pinochet’s immunity,” so I ask, the difference between “stripping Pinochet’s immunity” in order to prosecute him, and “ignoring Pinochet’s immunity” in order to prosecute him is what, exactly?



Personally speaking I think elected officials (head of state) should have immunity since they will never ever make all of the people happy all of the time. As far as crimes go, I really do think its a case by case basis and dependant upon the totality of circumstances. Allowing a President to be subject to the criminal justice system while in office would result in nothing but depositions and testifying since anytime he did something someone did not agree with, they would take legal action.
You will get no objections from me on this, but no one suggested that (1) heads of state don’t deserve some sort of immunity, that (2) Presidents should be subjected to the criminal justice system while in office and (3) particularly when it’s because the “[President] did something someone did not agree with.”



Bush did what he thought was best in terms of protecting the US and its people from terrorism. People in this country, as well as other countries, dont agree with his decisions, and thats fine. However they do not have all of the information the PResident gets, so when action is taken people view it as "draconian" or "illegal". Without all the info I can see how people can come to that conclusion.
You are mixing two distinct things it seems to me.

Presidents, or other heads of state, may implement whatever policies they wish, and they are subject to criticism from the citizenry, but whatever they decide to do it must be within the applicable legal frameworks, otherwise we are not a nation of laws.

What the President knows, or knew at the time, is pertinent only in respect to a judgment of his actions on a personal level, but it’s completely irrelevant for the purposes of determining the legality of his actions, and that’s what we are talking here.



That argument ignores the flip side of the coin. The argument can be made that Bush acted under universal jurisdicition when we were attacked on Sept 11th by extremists.
Putting aside the fact that universal jurisdiction is a legal principle not applicable to military action, the so called evidence the Bush administration presented to the international community – which can be thought of as the jury for our analogy – was almost universally rejected.

So if the justifications and arguments for the military actions the United States has engaged in was subjected to the same burdens of proof and other legal principles as one is in a court of law, they would have never happened in the first place.



To take it one step further, why arent these countries who go off on the US not directing equal intentions towards say China, or Saudi Arabia etc?
I admit I haven’t been up to date with the news, but did China or Saudi Arabia invade any countries lately?

Did they kidnap people in foreign countries and transfered them to the custody of countries who are known for torturing people, or put them in secret prisons where they were held for years without being charged and subjected to – putting it mildly – questionable detention and interrogation techniques?



To me their is a difference between rounding people up in the middle of the night because they are part of the opposite political party (pinochet) and taking actions to protect the country and its citizens from people intent on doing harm.
After people have been apprehended, subjecting them to sleep deprivation, sensory deprivation, stress positions, and waterboarding, helps to protect American citizens how?



posted on Feb, 9 2011 @ 01:26 AM
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EDIT to ADD: - Before responding check your PM's first - Thanks



Originally posted by aptness
You insist on saying Britain and Chile “ignored Pinochet’s immunity,” so I ask, the difference between “stripping Pinochet’s immunity” in order to prosecute him, and “ignoring Pinochet’s immunity” in order to prosecute him is what, exactly?


The difference between a lawful proseution and an unlawful prosecution. Pinochet has immunity from prosecution based on chilean law, and his actions took place within the political boundaries of Chilea, not Spain or the UK. As such, they are not subject to Universal Jurisdicition.


For Bush's situation It would be in legal terms fruit of the poisonous tree as well as ex post facto violations. Since our country as well as laws / doctrine of sovereign immunity came about before the creation of Universal Jurisdiction, it violates our constitution.



Originally posted by aptness
You will get no objections from me on this, but no one suggested that (1) heads of state don’t deserve some sort of immunity, that (2) Presidents should be subjected to the criminal justice system while in office and (3) particularly when it’s because the “[President] did something someone did not agree with.”


1 - The suggestion is present with the example of using Pinochet.
2 - BackinBlack suggested in when he invoked the comparison between Bush and Assange
3 - Many people have to hold Bush accountible for war crimes, while ignoring the actions of Assange. The reason being they agree with Assanges actions, and dont agree with Bush's actions. Which is one of the main reasons Assange has taken the actions he has. He does not agree with the policies or actions of the United States.


Originally posted by aptness
You are mixing two distinct things it seems to me.

Presidents, or other heads of state, may implement whatever policies they wish, and they are subject to criticism from the citizenry, but whatever they decide to do it must be within the applicable legal frameworks, otherwise we are not a nation of laws.


Are you sure? Based on this argument you just underminded your own argument about being a nation of laws and operating within a legal framework. A legal framework exists, and is an applicable law that Pinochet had immunity from prosecution because he was a head of State. That law was ignored by Britain, who decided to use their own law in conjunction with an international legal framework that is not accepted by all nations (universal jurisdiction). Chile has legal standing to change their own laws since its their country and their leader.

Britain on the other hand, who was not a wronged party to Pinochets actions, acted. Actually they acted at the request of Spain, who also was not a wronged party to Pinochets actions. Chile has laws in place, which were "trumped" by 2 countries in Europe using a different set of laws that violate the Soveregnty of Chile.

Do I think Pinochet is guilty as hell for his actions? I do and so did Pinochet himself in the end, however it should be incumbent of the people to hold their leader accountible, and not others who were never involved in the first place. Failing to recognize that basic concept opens the door to prosecute a person based on a moral / ethical viewpoint of someone else that does not take into account the lead up to the actions.

Do you think Briatain would turn over Her Majesty Queen Elizabeth II to France so she can be prosecuted under Universal Jurisdiction for the events that transpired in Africa after she became Queen? Britain has a history in Africa and not all of it is good. Or do you think they would make the argument that the Queen has Sovereign immunity and as such cannot be touched. Do you think the people of the United Kingdom would allow an international law to violate hundreds of years of domestic law that protects the Sovereign?

The same principles apply, so where is the line drawn? The concept of Universal jurisdiction is a good idea, but only when its placed into context. Absent that placement, the law tramples on the will of the people of the country that is the target.


Originally posted by aptness
What the President knows, or knew at the time, is pertinent only in respect to a judgment of his actions on a personal level, but it’s completely irrelevant for the purposes of determining the legality of his actions, and that’s what we are talking here.


Actually its paramount to determine legality of actions. Without the full picture, we dont have all of the facts and because of that, the legality of an action cannot be judged correctly. It would be like arresting a person who shot and killed an intruder and charging him with murder. The prosecution would be based on a law violation and would ignore all the facts and circumstances surrounding the incident, including the exigent circumstance of self defense, which would be paramount to his defense.

We have to look at all the information, whether we agree with it or not, and place it into context. If we dont do that, then we are violating our basic laws and legal framework.



Originally posted by aptness
Putting aside the fact that universal jurisdiction is a legal principle not applicable to military action, the so called evidence the Bush administration presented to the international community – which can be thought of as the jury for our analogy – was almost universally rejected.


President Bush is also Commander in Chief of the armed forces of the United States, and actions taken that are called into question are carried out by military personnel, so Universal jurisidiction would not apply to Bush. Secondly as far as our action in Afghanistan goes, its covered under UN Charter, self defense. A nation is not required to notify the UN before taking military action in self defense. The only requirement is to notify the Security Council at some point to make them aware.

As far as the International Community not agreeing with the evidence presented, it goes to my second argument. The International community has their own agendas, all countries do. Basing decisions for the United States on what the International Community wants is a violation of sovergnty as well as domestic laws and actually an argument can be made for a violation of international laws and UN charter.

As far as Iraq goes we can go down that road if we want, but I dont think we need to since its going to take the thread farther off topic (My argument is UN resolutions allowed our action, as well as info wikileaks put out about WMDs being present in Iraq).


Originally posted by aptness
So if the justifications and arguments for the military actions the United States has engaged in was subjected to the same burdens of proof and other legal principles as one is in a court of law, they would have never happened in the first place.


Since our judicial system has nothing to do with the Presidents ability to be Commander in Chief and Congress's ability to run the day to day operations of the country, including the authorization of use of force or declaration of war, the courts would have no jurisdiction since its specifically spelled out in the Constitution.

Going along with your hypothetical though if all evidence and information was presented, I think a court would allow the actions taken thus far. As far as the torture and enemy combatant argument, the US Supreme Court has already ruled on those and we are within US law.

If we go one step further and invoke universal jurisdiction, then we just invalidated the laws of the United States, invalidated the Constitution and violated the Sovereignty of the US by a country who has not been wronged by the actions of the United States. We did not invade or take action against Switzerland, so their attempt to charge Bush is based on what? Their moral and ethical beliefs? Politics?


Originally posted by aptness
I admit I haven’t been up to date with the news, but did China or Saudi Arabia invade any countries lately?


No and neither did the United States, We defended ourselves against actions taken againt our country. However, the point being is the use of Universal Jurisdiction that people want to apply to the US for torture and human rights violations. Those 2 countries fall within the same category, but are being ignored. Respectfully even your response to that question is a perfect reason why Universal Jurisdiction in its current form is so dangerous. It allows an uninvolved party to not only involve themselves, it allows for selective prosecution based on personal motiviations that dont take into account the entire picture, allows for political retribution and undermines the legal framework and intended use of Universal Jurisdiction.

Can you honestly tell me that some of the people calling for prosecution of Bush are not doing it for personal / political reasons? Even ths slightest hesitation in answering that is the answer.


Originally posted by aptness
Did they kidnap people in foreign countries and transfered them to the custody of countries who are known for torturing people, or put them in secret prisons where they were held for years without being charged and subjected to – putting it mildly – questionable detention and interrogation techniques?


Well, yes both of those countries have done this, as all countries on this planet have done. So again, we are singleing out specific countries based on the "mood" of other countries. Even the people we have detained in Gitmo get legal representation, and in full accordance with UN and Geneva conventions.

They are not considered POWS under UN laws, but are considered enemy combatants. My question is people are upset they are held but not charged. Where was this outrage during WWI / WWII / Korea / Vietnam / Panama / Kuwait / Iraq / Afghanistan (soviets)?

The reason I ask this question is because prisoners during those listed were held until the war / hostilities ended. We are still engaged in hostilities in Afghanistan. At what point and under what law does it require people who are captured during war to be :charged" with a crime? This part always makes me bonkers when I see people complaining about not prosecuting captured enemy combatants.

Prosecute them for what? They were captured.


Originally posted by aptness
After people have been apprehended, subjecting them to sleep deprivation, sensory deprivation, stress positions, and waterboarding, helps to protect American citizens how?


We have obtained information from people using those methods, and they have saved lives. Would you prefer we use the same methods as China or Saudi Arabia, which is to execute them without judge or jury? To me this is along the same argument as peope make when talking about how evil the US was for dropping 2 nuclear bombs on Japan.

My response to that is we were attacked first, and defended ourself. If you dont care for our tactics, then dont attack us in the first place.

Besides, water bording is more palatable that rambeling off a few verses of the Quran and then cutting a person head off while videotaping it so it can be used for propoganda purposes, which by the way is also a violation of international law and UN conventions.

Again, I dont see people screaming bloody murder over that.

People want to take the easy road, which in this case is going after the United States and her actions. Why? Because going after Saudi Arabia or China or N. Korea is "to hard" because those countries just dont care what the international community thinks. People can hop a flight to the US, make some signs and go protest in front of Congress or the Whitehouse. Try that in front of the Peoples Hall or the KKMC and see what happens.

To sum up this wall of text, we do agree that Leaders must be held accountible, and all steps should be taken to ensure the rule of law is followed and a higher moral and ethical standard set. We disagree with how that should be done though.

Its intresting countries in the world complain about the US interfering where we dont belong, from politics to internal matters of other countries, while at the same time these countries want to do the exact same thing they rail against by using universal jurisdicition.

This is why Assange and Bush are different in terms of prosecution, to answer BackinBlacks question, and yours.

Can you show me how Sharia law does not violate human rights, UN and International laws? We can make the same argument that we are using universal jurisdicition to put an end to those violations because no one else will.
edit on 9-2-2011 by Xcathdra because: (no reason given)



posted on Feb, 9 2011 @ 07:55 PM
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Originally posted by Xcathdra
The concept of Universal jurisdiction is a good idea, but only when its placed into context. Absent that placement, the law tramples on the will of the people of the country that is the target.
You are absolutely correct in this statement, but most of your arguments do not reflect the care for the correct context. For instance:


Britain on the other hand, who was not a wronged party to Pinochets actions, acted. Actually they acted at the request of Spain, who also was not a wronged party to Pinochets actions. Chile has laws in place, which were "trumped" by 2 countries in Europe using a different set of laws that violate the Soveregnty of Chile.
The context that is missing is that the actions taken by Spain and Britain were pursuant to the United Nations Convention Against Torture (CAT). The United Kingdom, Spain and Chile are all signatories to the treaty.

The treaty establishes universal jurisdiction (Art. 5), and specifically mentions the prosecution of “public officials” (Art. 1, Art. 16). This means that said public officials do not enjoy immunity from prosecution for torture, which was the finding of Britain’s House of Lords regarding Pinochet.

Moreover, Spain’s request for extradition were connected to the fact that several Spanish citizens were tortured by Pinochet’s regime.

It’s in light of this context and these facts that it is simply not true that Britain, Spain or even Chile were not “wronged parties,” or were acting outside their legal frameworks.


Do I think Pinochet is guilty as hell for his actions? I do and so did Pinochet himself in the end, however it should be incumbent of the people to hold their leader accountible, and not others who were never involved in the first place.
The Convention also establishes that parties to the treaty have an obligation to prosecute offenders when the nation hosting offenders refuses to prosecute them. This is what Britain did, again, as per their legal obligations.



As far as the torture and enemy combatant argument, the US Supreme Court has already ruled on those and we are within US law.
This is a topic we have debated abundantly and I don’t find the relevant Supreme Court decisions to mean that those policies were “within US law.”

I know you rely on a DC Circuit Court of Appeals decision that said that Rumsfeld et al had qualified immunity for the treatment of prisoners, but — and as you’ve previously acknowledged — that ruling by the lower court was in part contradictory with what the Supreme Court had previously ruled regarding the prisoners in Guantanamo, especially in regards to the Boumediene case, if I remember correctly.

I will grant you that this particular DC Circuit Court’s ruling and the subsequent refusal to hear the appeal by the Supreme Court does raise doubts about how exactly the Court views the legality of the detention and interrogation methods, but I certainly don’t think you can say that the question is settled and everything was “within US law,” and we certainly can’t ignore the several Supreme Court cases that ruled the detainees had constitutional rights and that Common Article 3 of the Geneva Conventions applied to them (Rasul, Hamdan, Boumediene etc).



If we go one step further and invoke universal jurisdiction, then we just invalidated the laws of the United States, invalidated the Constitution and violated the Sovereignty of the US by a country who has not been wronged by the actions of the United States.
I don’t think this is a correct interpretation at all.

The United States, like Spain and Britain and Chile, is a signatory of the Convention Against Torture. As you’re well aware, as per Article VI of the United States Constitution, “all treaties made (...) under the authority of the United States, shall be the supreme law of the land,” and as such, a party to the Convention prosecuting a US citizen under universal jurisdiction, pursuant to the treaty obligation, would not violate the sovereignty of the United States, and would be, in fact, in accordance to the laws of the United States.



Actually its paramount to determine legality of actions. Without the full picture, we dont have all of the facts and because of that, the legality of an action cannot be judged correctly.
In respects to the accusations of torture, the hypothetical information the President allegedly knows or knew that the public doesn’t or didn’t is not a legitimate justification to implement the harsh detention and interrogation methods that it did.

The United States is party to at least 2 treaties that impose an absolute ban on torture. No amount of information, classified or not, can change that or be used as justification.


Secondly as far as our action in Afghanistan goes, its covered under UN Charter, self defense.
I will grant you that there is some nexus to the initial military intervention in Afghanistan and the self-defense right recognized in the UN Charter, but the accusations and complaints against Bush — like the one in Switzerland recently — are on grounds of torture, not the invasion of Afghanistan.

Even if there wasn’t an absolute ban, torture was not a necessary component for the self-defense of the United States.


As far as Iraq goes we can go down that road if we want, but I dont think we need to since its going to take the thread farther off topic (My argument is UN resolutions allowed our action, as well as info wikileaks put out about WMDs being present in Iraq).
Iraq is a completely different matter because Iraq didn’t attack the United States, nor did it support the alleged perpetrators of 9/11, so that invasion cannot be justified under the self-defense articles of the Charter.

Even if there were WMDs in Iraq, outside of a self-defense right, the Charter only contemplates military action with the approval of the Security Council. And the UN rejected the United States arguments for a UN resolution authorizing the invasion of Iraq.

But I’m glad to see you relying on information revealed by Wikileaks after all, even though you are constantly attacking the organization and Assange.



We did not invade or take action against Switzerland, so their attempt to charge Bush is based on what? Their moral and ethical beliefs? Politics?
If you don’t know you should have checked what the basis is. It’s on accusations of torture btw. I thought that was obvious, at least it was widely reported as such.

Bush is not “we.” Bush is not the United States.


Can you honestly tell me that some of the people calling for prosecution of Bush are not doing it for personal / political reasons? Even ths slightest hesitation in answering that is the answer.
There is no hesitation on my part — the answer is that some people are calling for the prosecution of Bush for political reasons only.

I don’t see how this fact means there are no legitimate reasons to prosecute Bush for. Clinton was prosecuted for what, perhaps most, would call political reasons, does that mean Clinton didn’t get a BJ in the Oval Office?


We have obtained information from people using those methods, and they have saved lives.
According to Bush, Cheney and Rumsfeld, yes. But I’m sure you’re aware there are many people, including former officials, who say it didn’t.

And even accepting that it saved lives, torture is still illegal.



Besides, water bording is more palatable that rambeling off a few verses of the Quran and then cutting a person head off while videotaping it so it can be used for propoganda purposes, which by the way is also a violation of international law and UN conventions.
I would say both are a violation of international law and conventions, yes.


Again, I dont see people screaming bloody murder over that.
Really? You don’t see people contesting and protesting against the barbaric methods of Islamic extremists and regimes?

This is a weak argument Xcathdra, and ignores even the reality of what goes on right here on ATS, where people frequently object and criticize the ill-treatment of women and other barbaric and retrograde mentalities, habits and actions of fundamentalists.



People want to take the easy road, which in this case is going after the United States and her actions.
Again, George W. Bush or Bush administration officials are not “the United States.” When you are able to make that distinction perhaps you will abandon the arguments that no American should be prosecuted for torture because there are torturers in other countries too.

The fact that the prosecution of torturers and people who order and sanction torture doesn’t happen more often is, unquestionably, a mistake. But not prosecuting people guilty of it because they share our nationality is only to add on another mistake.



edit on 9-2-2011 by aptness because: (no reason given)



posted on Feb, 10 2011 @ 12:01 AM
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Part Uno so there is not one massive wall of text.


Originally posted by aptness
The treaty establishes universal jurisdiction (Art. 5), and specifically mentions the prosecution of “public officials” (Art. 1, Art. 16). This means that said public officials do not enjoy immunity from prosecution for torture, which was the finding of Britain’s House of Lords regarding Pinochet.

Moreover, Spain’s request for extradition were connected to the fact that several Spanish citizens were tortured by Pinochet’s regime.

It’s in light of this context and these facts that it is simply not true that Britain, Spain or even Chile were not “wronged parties,” or were acting outside their legal frameworks.


Not quite..

CAT - Source - Wiki
CAT - United Nations


The Convention requires states to take effective measures to prevent torture within their borders, and forbids states to return people to their home country if there is reason to believe they will be tortured.

The text of the Convention was adopted by the United Nations General Assembly on 10 December 1984[1] and, following ratification by the 20th state party,[2] it came into force on 26 June 1987.[1] 26 June is now recognised as the International Day in Support of Torture Victims, in honour of the Convention. As of September 2010, the Convention had 147 parties.[1]


With that being said, Chile is a signatory to the treaty, however they did not become a part of that treaty until September 23 1987 and did not ratify it until Sept 30 1988, at which point they were bound by the treaty. Pinochet came to power in 1973 and left that office in 1988, prior to its ratification.

So again Britain and Spain excersized authority over a matter that was nowhere near their jurisdiction. You said Spanish nationals were killed during that time, so I will grant that Spain certainly has a right to look into and seek justice for its citizens.

Spain signed the treaty on 4 Feb 1985 but did not ratify it until 21 Oct 1987. Even though their ratification date is within the time frame, Chile was not a signatory (ratified to have full effect of law) until the following year, so again while Spain has grounds to investigate and seek redress, the use of universal jurisdiction here is invalid because the targted country was not a party to the treaty.



Originally posted by aptness
The Convention also establishes that parties to the treaty have an obligation to prosecute offenders when the nation hosting offenders refuses to prosecute them. This is what Britain did, again, as per their legal obligations.


Chile was not part of the treaty at the time the incidents occured, so Britain did not have any jurisdiction to enforce the treaty against Pinochet. Further more The United Kingdom adopted the framework of CAT on March 15th 1985, but did not ratify it until December 8th 1988. Again, making their actions outside of the treaty.

Ex Post Facto = bad joojoo

The intent is to stop it before it begins, not allow it to happen and file an amicus brief 15 years later.


Originally posted by aptness
This is a topic we have debated abundantly and I don’t find the relevant Supreme Court decisions to mean that those policies were “within US law.”


Actually its completely relevant given the definition of torture under the CAT agreement, which is below, as well as other UN agreements we are signatories to, including the Geneva Convention which actually spells out what constitutes an enemy combatant. The requirement of that designation is clear, and goes on to state that a person captured as an enemy combatant are subject to either the Domestic or Military laws of the country who captured them.

People conviently leave that out of their arguments. Since we are following the UN agreement, Supreme Court decisions on this matter is imperative.

In addition the application of that agreement during a time of war is also incumbent on the application of the Geneva Conventions. If a country does not sign, or ignores the Geneva convention, under international law they are not entitled to those protections themselves (contrary to Amnesty International and the Red Cross claims). This occured during WWI as well as WWII. In addition the Government of Afghanistan signed the Geneva Conventions in 1953. When the Taliban took over, only 3 countries recognized them as the legitimate government of Afghanistan.

UN Resolution 1267 supports that argument as well, referring to the Afganistan representitive as "faction" and not government.

During times of armed conflict a combatant must be in an identifiable uniform. If that person is captured in an enemy uniform, or civilian clothes, they are subject to military tribunals as well as summary execution as spies, which is allowed and an accepted form of international law steming from the Geneva Conventions and the Rules of armed conflict.


'''Article 1''' of the Convention defines torture as: [[Quotation |Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. |Convention Against Torture, Article 1.1]]

Actions which fall short of torture may still constitute cruel, inhuman or degrading treatment under Article 16.


If you read on you will see that the CAT requires signatories to exercise jurisidiction only within their own territories, not outside of it. Universal jurisdiction comes in when a person is non extraditable. Non extraditable in this case is when no extradition treaties exist between nations. In this case The United Kingdom and Chile have treaties that stretch back to before chile was an independant nation, and both sahre extradition treaties with each other. The Government of Chile was not given a chance to act first, since Spain never filed a request with Chile to have the Chilean Government prosecute Pinochet. instead Spain issued their own arrest warrant, and the UK served it, in violation of article 21.


Originally posted by aptness
I know you rely on a DC Circuit Court of Appeals decision that said that Rumsfeld et al had qualified immunity for the treatment of prisoners, but — and as you’ve previously acknowledged — that ruling by the lower court was in part contradictory with what the Supreme Court had previously ruled regarding the prisoners in Guantanamo, especially in regards to the Boumediene case, if I remember correctly.

I will grant you that this particular DC Circuit Court’s ruling and the subsequent refusal to hear the appeal by the Supreme Court does raise doubts about how exactly the Court views the legality of the detention and interrogation methods, but I certainly don’t think you can say that the question is settled and everything was “within US law,” and we certainly can’t ignore the several Supreme Court cases that ruled the detainees had constitutional rights and that Common Article 3 of the Geneva Conventions applied to them (Rasul, Hamdan, Boumediene etc).


Actually I am making that argument, which is supported by UN agreements and accepted international law. As I cited above, the Geneva Convention specifically spells out what a POW is and what an enemy combatant is, and how those 2 groups are categorized in terms of treatment. The agreement specifically places enemy combatants under the laws of the capturing country, and from there UN agreements defer to that jurisidiction.


Originally posted by aptness
I don’t think this is a correct interpretation at all.

The United States, like Spain and Britain and Chile, is a signatory of the Convention Against Torture. As you’re well aware, as per Article VI of the United States Constitution, “all treaties made (...) under the authority of the United States, shall be the supreme law of the land,” and as such, a party to the Convention prosecuting a US citizen under universal jurisdiction, pursuant to the treaty obligation, would not violate the sovereignty of the United States, and would be, in fact, in accordance to the laws of the United States.


Correct, but thats not all of it -


Reid v. Covert (1957) ruled that no branch of the United States Government can have powers conferred upon it by treaty that have not been conferred by the United States Constitution


Care to point out in the Constitution where it states another country can invoke jurisdiction over US Nationals, let alone strip US citizens of their constitutionally guaranteed rights of innocent until proven guilty, right to trial by jury, presumed innocence, right to face our accusers, call witnesses and have evidence turned over upon discovery request. In addition to that, the actions being called into question occured within the United States borders, giveing our courts primary jurisdiction, which again is in the Constitution

Also the Constitution is the Supreme Law of the land. No treaty signed can remove the Constitutional gurantees to US Citizens based solely on another countries laws. Going back to Pinochet the UK uses whats called Parliamentary sovereignty. A law passed by Parliment cannot be challenged in a judicial setting, which again raises the issues of how one countries laws can literally screw over a persons ability to defend himself by challeneging the law itself.

Further more articles V through IX spell out how universal jurisdiction works, up to and including a country being able to refuse the request based on domestic law. Universal jurisdiction rests within the extrradition treaties between countries. It does not allow for one country to use their domestic laws to ursurp domestic laws of another country.
edit on 10-2-2011 by Xcathdra because: (no reason given)



posted on Feb, 10 2011 @ 12:01 AM
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Part Deux


Originally posted by aptness
In respects to the accusations of torture, the hypothetical information the President allegedly knows or knew that the public doesn’t or didn’t is not a legitimate justification to implement the harsh detention and interrogation methods that it did.

The United States is party to at least 2 treaties that impose an absolute ban on torture. No amount of information, classified or not, can change that or be used as justification.


Correct, and we have to go back to the CAT
Originally posted by aptness" target="_blank" class="postlink" rel="nofollow">article I
for the definition of torture. That has to be weighed against the agreements on Human Rights. It is also weighed against the Geneva Convention as well as the Rules of warfare. I understand what your saying in terms of no exceptions being allowed to justify torture. However violation of it is problematic.

Violating the CAT is prosecutable in only 1 of 2 ways. The country where the violation occured has primary jurisdiction. If that jurisdiction does not act, or outright refuses to act, the prosecution is forwarded to the International Criminal Court (per Rome Statute of 2002). The United States was a signatory to that concept, but it was never ratified, and as of 2002 the US removed its name from the treaty.

Since we are not part of the ICC, enforcement of the CAT is null. You and I are going to disagree over this part and thats fine. There were a series of memos between White House Council and the AG's office that covered this debate indepth.


Originally posted by aptness
I will grant you that there is some nexus to the initial military intervention in Afghanistan and the self-defense right recognized in the UN Charter, but the accusations and complaints against Bush — like the one in Switzerland recently — are on grounds of torture, not the invasion of Afghanistan.

Even if there wasn’t an absolute ban, torture was not a necessary component for the self-defense of the United States.


Going back to the CAT though, it spells out how prosecution can be brought. A country cannot just say you are violating this treaty and assert jurisdiction. Article 21 of CAT spells out the process.



Originally posted by aptness
Iraq is a completely different matter because Iraq didn’t attack the United States, nor did it support the alleged perpetrators of 9/11, so that invasion cannot be justified under the self-defense articles of the Charter.

Even if there were WMDs in Iraq, outside of a self-defense right, the Charter only contemplates military action with the approval of the Security Council. And the UN rejected the United States arguments for a UN resolution authorizing the invasion of Iraq.

But I’m glad to see you relying on information revealed by Wikileaks after all, even though you are constantly attacking the organization and Assange.


I still dont agree with Assange or his actions, but since everyone else is going to make arguments based off of the info he illegally obtained and released, I might as well use it to support my argument. UN Resolution 1441 aside, there are other issues that come under Article 7 of the UN Charter, and its applications to Resolutions that deal with breach of peace etc.



Originally posted by aptness
If you don’t know you should have checked what the basis is. It’s on accusations of torture btw. I thought that was obvious, at least it was widely reported as such.

Bush is not “we.” Bush is not the United States.


I will refer you to Article 21 of the CAT in addition to how jurisdiction is asserted to dismiss Switzerlands complaint.

Also, Bush in this instance is The United States. He is the peoples representative to the World. The orders he gave were not done as Mr. George Bush, they were issued as Mr. President.


Because the United States is a presidential system, the president fulfills the roles of head of state and head of government. As a head of state, the President of the United States represents the nation at home and abroad.



Originally posted by aptness
There is no hesitation on my part — the answer is that some people are calling for the prosecution of Bush for political reasons only.

I don’t see how this fact means there are no legitimate reasons to prosecute Bush for. Clinton was prosecuted for what, perhaps most, would call political reasons, does that mean Clinton didn’t get a BJ in the Oval Office?


Clinton getting a BJ in the oval is not under the perview of the UN or Great Britain or Spain. Also, Clinton was not impeached because of the BJ, he was impeached because he commited perjury as well as obstruction of justice, and the Government of the United States, representing the people, placed him on trial in conjunction with our laws, and the process worked, whether we agree with its outcome or not..

You didnt answer the question, because the answer would be no, the people and Government of England would not turn her over, even though actions taken by the crown in the past are as bad or worse than what Bush did.

The reason I brought this up is to back up my claim that the way this agreement is worded opens the door to such a wide extent, it tramples on the sovereignty of a nation and goes so far as to invalidate the authority of the people to run their own affairs when it comes to their governments actions. It allows for a political prosecution based solely on the moral and ethical beleifs of a country, or even a judge as in the case dealing with Spain, Britain and Pinochet.

If you were the President, and your country is fighting 2 wars, are you going to entrtain objections by countries who are not involved in the conflict that attempt to restrict the manner in which you execute your oath of office, which it to protect and defend the Constitution from all enemies, foreign and domestic. Or are you going to ignore your oath to uphold international law resulting in more American lives being lost.

All because a country who has a history of being neutral has moral / ethical objections?

Again why is Switzerland also not going after the Taliban or Al Queida leadership the same as they go after Bush?


Originally posted by aptness
According to Bush, Cheney and Rumsfeld, yes. But I’m sure you’re aware there are many people, including former officials, who say it didn’t.


I see both sides of it, and people will have differing views on this based on the information they had access to.


Originally posted by aptness
And even accepting that it saved lives, torture is still illegal.


So is cutting a non combatants head off, intentioanlly using civilians as human shields, executing people based on religion, as well as video taping captured people and purposely playin it on TV. All of which are violations of CAT, the Geneva Conventions and a few others.

Where is Switzerlands push to bring the leadership of al queida and the Taliban to justice under this agreement?



Originally posted by aptness
I would say both are a violation of international law and conventions, yes.


Then why the sole push to hold Bush accountible, and not Al Queida or the Taliban?


Originally posted by aptness
Really? You don’t see people contesting and protesting against the barbaric methods of Islamic extremists and regimes?


Not the extent that they want Bush charged. Do a google search / Yahoo / Bing and see how many stories crop up from countries / UN reps / NGO's who are calling for Bush to be prosecuted compared to calls to prosecute Taliban or Al Queida leadership for their actions. Hell I dont even see any arguments about how extremists Islam or Sharia law violate almost all UN articles and agreements.


Originally posted by aptness
This is a weak argument Xcathdra, and ignores even the reality of what goes on right here on ATS, where people frequently object and criticize the ill-treatment of women and other barbaric and retrograde mentalities, habits and actions of fundamentalists.


Its not a weak argument in the slightest. As I have said before many times, there is nothing wrong with holding people accountible for actions. However, when it becomes a one sided witch hunt I take exception because it falls exactly into the same category as what Bush is accused of doing. Its political because people hate Bush and want to find any reason they can to go after him, while in the very same breath completely ignore all other issues by other countries in the same regard.



Originally posted by aptness
Again, George W. Bush or Bush administration officials are not “the United States.” When you are able to make that distinction perhaps you will abandon the arguments that no American should be prosecuted for torture because there are torturers in other countries too.


And again you are incorrect. Bush is the Representative of the United States. When he gives orders to the military, makes a treaty etc it is not with Bush, it is with the President of the United States. When you can learn to understand how that works, you will see why I make the arguments I do about political retribution disguised as people caring about human rights.


Originally posted by aptness
The fact that the prosecution of torturers and people who order and sanction torture doesn’t happen more often is, unquestionably, a mistake. But not prosecuting people guilty of it because they share our nationality is only to add on another mistake.


I agree it should be prosecuted more, but only after the CAT is reworded to make its application fair and not partisan or dependant upon the relations between 2 countries going south. It needs to take into account conflicts where one enemy is not a signatory to any UN agreements, it should take into account when one of the parties is not even part of the United Nations.

The UN Charter and its resolutions and agreements are intended to stop conflict before it starts. If that fails and war does occur, those very same articles become a suicide pack when only 1 country abides by the rules.

With this huge wall of text being said. We are in agreement about the humane treatment of people during times of conflict, and during times of peace.
edit on 10-2-2011 by Xcathdra because: (no reason given)



posted on Feb, 10 2011 @ 12:35 AM
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reply to post by aptness
 


As a side not thank you for the debate. We both know we are not going to agree on the answers, but as I stated earlier I always learn something new debating with you.

Thank you for that.

As a side note, and all arguments aside, we have the same viewpoint on torture and accountibility. My view though is the CAT / UN / etc are suppose to happen sooner, rather than later. They are intended to prevent the issues we are debating before they occur, not after.

What good are these International Laws / treaties if they are invoked / enforced 5-10-15-20 years after the fact?

To me this is evidence enough that the application of UN treaties are based not on morals or ethics, but politics. There have been many, many incidents that have occured prior to Bush that were ignored.

Total number of cases referred to the ICC based on violation of the CAT - 5.

All of those are African countries:

- Northern Uganda - Crimes against Humanity - Signatory
- Democratic Republic of the Congo - War Crimes - Signatory
- Central African Republic - CAT - rape/murder - NOT signatory
- Darfur, Sudan - War Crimes / Crimes against Humanity - NOT a member - never ratified
- Kenya - unknown reason - Signatory

Why no other countries?

Lets take a quick snapshot of UN Arms Embargos
* China - placed by the EU/US - Prevents China from purchains military hardware from other countries. Prohibits China from selling arms.
* China attempted to block a report about the Sudan because it contained information about Chinese weapons shipments.
* Result - Ignored by the UN

* Iraq - placed by the UN/EU
* Violated by Russia, Poland, France, Romania, Belarus and Ukraine
* result - Ignored by the UN

* Iran - placed by UN/EU
* Violated by Iran for exporting - Sudan
* Violated by acquiring helicopters and other military equipment from source in the EU, China, Russia.
* Result - Ignored by UN

* Sudan - Placed by UN/EU
* Violated by China, Belarus, India, Kenya, Iran and 25 other countries
* Result - Ignored by UN

Again, treaties in place with selective enforcement action on violators.

The arms embargo has nothing to do with our conversation per se - I bring it up to support my argument about how UN treaties / signatory nations are based on politics, and have nothing to do with why the agreements were made in the first place.

UN "laws" are applied based on politics, revenge, mood of the members etc.

Countries want to bring Bush to "justice" - I dont buy it because its not based on the intent of the agreements.

Its political.
edit on 10-2-2011 by Xcathdra because: (no reason given)



posted on Feb, 10 2011 @ 09:59 AM
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reply to post by Xcathdra
 


That is why Mr Blair has not been summonned yet to stand trial for war crimes over the Iraq war, he has imunity in the UK as an ex Prime Minister.

Until the Law is changed people like him, will be able to live scot free,without ever being brought to book over thier actions.


edit on 10-2-2011 by Laurauk because: (no reason given)



posted on Feb, 10 2011 @ 01:35 PM
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Originally posted by Xcathdra
Chile is a signatory to the treaty, however they did not become a part of that treaty until September 23 1987 and did not ratify it until Sept 30 1988, at which point they were bound by the treaty. Pinochet came to power in 1973 and left that office in 1988, prior to its ratification.
Pinochet was still in power well over 1988.

[Pinochet] was the Commander-in-Chief of the Chilean army from 1973 to 1998, president of the Government Junta of Chile from 1973 to 1974 and President of the Republic from 1974 until transferring power to a democratically elected president in 1990.


Further more The United Kingdom adopted the framework of CAT on March 15th 1985, but did not ratify it until December 8th 1988. Again, making their actions outside of the treaty.
Ex Post Facto = bad joojoo
There was no ex post facto problems with Britain’s actions (source).

The Law Lords ruled by six to one that General Pinochet was not immune from prosecution, but he could face charges only on crimes committed after 1988, when Britain signed the International Convention Against Torture.



The requirement of that designation is clear, and goes on to state that a person captured as an enemy combatant are subject to either the Domestic or Military laws of the country who captured them.
And torture is illegal under domestic law as well.


If a country does not sign, or ignores the Geneva convention, under international law they are not entitled to those protections themselves (contrary to Amnesty International and the Red Cross claims).
The authority on the Geneva Conventions is the Red Cross, more specifically the International Committee of the Red Cross (ICRC), so your reference to claims by the Red Cross seem odd.


Actually I am making that argument, which is supported by UN agreements and accepted international law. As I cited above, the Geneva Convention specifically spells out what a POW is and what an enemy combatant is, and how those 2 groups are categorized in terms of treatment.
When the status of a prisoner is undetermined, the Conventions mandate that the prisoner be treated like a POW. If a prisoner doesn’t qualify as a POW it is still prohibited to torture him. There are no loopholes. No one can be tortured. This is the opinion of the ICRC, the controlling body of the Conventions.

Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.



Care to point out in the Constitution where it states another country can invoke jurisdiction over US Nationals, let alone strip US citizens of their constitutionally guaranteed rights of innocent until proven guilty, right to trial by jury, presumed innocence, right to face our accusers, call witnesses and have evidence turned over upon discovery request.
That is an interpretation that is inherently flawed, because it would mean only US courts would have the jurisdiction to try American citizens, and this is simply untrue. Your interpretation would make US citizens immune from prosecution, whatever the crime, wherever it was committed, by any courts other than US courts.

Your other points about striping citizens of guaranteed rights, like the assumption of innocence, is quite frankly chauvinistic, because it assumes only the United States has a fair judicial system, or abides by those legal principles.

Most of what you cite as constitutionally guaranteed rights are present in all common law courts — the foundation of the US judicial system — as well as in courts of the all countries of the European Union. Regarding assumption of innocence for example, Art. 48 of the Charter of Fundamental Rights of the European Union states that “Everyone who has been charged shall be presumed innocent until proved guilty according to law.


In addition to that, the actions being called into question occured within the United States borders, giveing our courts primary jurisdiction, which again is in the Constitution
The actions being called into question occurred outside US borders. The invasions and military action occurred outside US borders, people were captured, detained and tortured, outside the US, pursuant to those military actions.


Regarding your overall objection to universal jurisdiction let me quote from the Nowak and McArthur Commentary on the Convention Against Torture, which is cited in the CCR Bush indictment draft—

As discussed in the Nowak and McArthur Commentary on CAT, [the universal jurisdiction] provision met with “fierce objection” from many States, with the strongest supporter of the draft provision for universal jurisdiction (presented by Sweden) being the United States: “the US Government expressed the opinion that torture is an offence of special international concern which means that it should have a broad jurisdictional basis in the same way as the international community had agreed upon in earlier conventions against hijacking, sabotage and the protection of diplomats.” The Commentary continues: “It was, above all, the delegation from the United States which had convincingly argued that universal jurisdiction was intended primarily to deal with situations where torture is a State policy and where the respective government, therefore, was not interested in extradition and prosecution of its own officials accused of torture.


Being a person interested in law as you are it saddens me to see you take the positions that you have, your unconditional commitment to American exceptionalism, where US citizens and Presidents can do no wrong, and are immune from every law other than the ones they personally agree with; that former Presidents, regardless of what they have done, continue to symbolize “the United States,” and a possible prosecution on one of them is an attack on every American.

I cannot adhere to any of these notions, all of them, in my view, completely contrary to what the founding fathers believed and wanted for our nation, as embodied in our Constitution.

It’s also tragically hypocritical on your part to rant about universal jurisdiction, claim people in Chile should have been the only ones to try Pinochet, and then unapologetically defend the invasion of Iraq.

The US had ‘jurisdiction’ to do this? Why shouldn’t it have been the people of that sovereign country to be the ones to resolve their internal problems, like you advocate in respect to Pinochet?

The United States’ actions against Iraq were contrary to international law, and they were not necessary for the self-defense of the United States. And the same goes for torture.

When it comes to US interventions and policies you seem to adopt a view of broad jurisdiction and power, where the United States can act unilaterally, by whatever means, and is immune from every international law.

You criticize and dismiss other countries’ actions as being strictly motivated by political reasons, but the reality is that you apparently defend the policies of the Bush administration because you politically agree with said policies, because legally they are indefensible, from a domestic or an international perspective.



posted on Feb, 10 2011 @ 03:23 PM
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Originally posted by aptness
Pinochet was still in power well over 1988.


No he was not - Referendum was held in 1988 and the outcome of that created the transitional government. The crimes Pinochet is accused of took place prior to being a signatory to the CAT treaty, and Spain and the UK signed and ratified after the fact as well.

Its not retroactive.


Originally posted by aptness

The Law Lords ruled by six to one that General Pinochet was not immune from prosecution, but he could face charges only on crimes committed after 1988, when Britain signed the International Convention Against Torture.


Which means Britain had no legal standing to charge him with anything because of when they signed AND ratified the treaty. The Law Lords were incorrect in their decision because they had no legal jurisdiction. What they did was made a ruling based on English Legal standards, which in this case is not allowed because they were acting on a Spanish warrant.

Farther down you take me to task for making the argument bout US law and US jurisdiction. Your argument was in favor of holding International Law over Domestic Law in thi type of case. How come your not making the same argument against Britain for ignoring International law for violation of CAT by relying on their Court system to make a determination against Pinochet?


Originally posted by aptness
And torture is illegal under domestic law as well.


I refer you to the White House Councels office and the AG's office and their memrandums, and will point out Supreme Court rulings that supported those actions.


Originally posted by aptness
The authority on the Geneva Conventions is the Red Cross, more specifically the International Committee of the Red Cross (ICRC), so your reference to claims by the Red Cross seem odd.


The REd Cross likes to invoke their version of International Law, and in doing so they feel they can force that on any country regardless of whats going on. Do some digging into their organization and relations with countries and you will find some intresting info. They perceive themselves as something bigger than they actually are.


Legal status

ICRC is the only institution explicitly named under International Humanitarian Law (IHL) as a controlling authority. The legal mandate of the ICRC stems from the four Geneva Conventions of 1949, as well as its own Statutes. The ICRC also undertakes tasks that are not specifically mandated by law, such as visiting political prisoners outside of conflict and providing relief in natural disasters.

The ICRC is a private association registered in Switzerland that has enjoyed various degrees of special privileges and legal immunities within the territory of Switzerland for many years[when?] and those are described[by whom?] as amounting to de facto sovereignty. On March 19, 1993, a legal foundation for this special treatment was created by a formal agreement between the Swiss government and the ICRC. This agreement protects the full sanctity of all ICRC property in Switzerland including its headquarters and archive, grants members and staff legal immunity, exempts the ICRC from all taxes and fees, guarantees the protected and duty-free transfer of goods, services, and money, provides the ICRC with secure communication privileges at the same level as foreign embassies, and simplifies Committee travel in and out of Switzerland. On the other hand Switzerland does not recognize ICRC issued passports.[16]

Contrary to popular belief, the ICRC is not a sovereign entity like the Sovereign Military Order of Malta and also it is not an international organization, neither of non-governmental nor of governmental type. The ICRC limits its membership to Swiss nationals only, and also unlike most NGOs[citation needed] it does not have a policy of open and unrestricted membership for individuals as its new members are selected by the Committee itself (a process called cooptation). However, since the early 1990s, the ICRC employs persons from all over the world to serve in its field mission and at Headquarters. In 2007, almost half of ICRC staff was non-Swiss. The ICRC has special privileges and legal immunities in many countries,[which?] based on national law in these countries, based on agreements between the ICRC and the respective governments, or, in some cases, based on international jurisprudence (such as the right of ICRC delegates not to bear witness in front of international tribunals).



Originally posted by aptness
When the status of a prisoner is undetermined, the Conventions mandate that the prisoner be treated like a POW. If a prisoner doesn’t qualify as a POW it is still prohibited to torture him. There are no loopholes. No one can be tortured. This is the opinion of the ICRC, the controlling body of the Conventions.


Well first off an opinion is not law, and secondly the ICRC has no authority - See above

Enemy Combatant

An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of International Humanitarian Law (IHL) and may be detained or prosecuted under the domestic law of the detaining state for such action.[1]


IHL / Geneva Convention

International humanitarian law (IHL), often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus that comprises "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law."[1] It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians.


This part is key in terms of your argument about torture-

The law is mandatory for nations bound by the appropriate treaties. There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories.



Originally posted by aptness
Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.


The rules of war specifically spell out who is considered a POW and who is considered an enemy combatant. See info above for more info.


Originally posted by aptness
That is an interpretation that is inherently flawed, because it would mean only US courts would have the jurisdiction to try American citizens, and this is simply untrue. Your interpretation would make US citizens immune from prosecution, whatever the crime, wherever it was committed, by any courts other than US courts.


Its not flawed and yes, only the US Courts have jurisdiction over US Citizens when actions taken originate form within the political boundaries of the United States. If a US citizen is in a foreign country and comits a crime, they are subject to the laws of the country they are in.


Originally posted by aptness
Your other points about striping citizens of guaranteed rights, like the assumption of innocence, is quite frankly chauvinistic, because it assumes only the United States has a fair judicial system, or abides by those legal principles.


Its not in the least bit. Your argument was a treaty that is signed and ratified, under our Constitution makes it law, and I agre with you on that. However, I also pointed out a court ruling that says a treaty cannot confer authority when the constitution does not confer it. In this case, a US citizen that is within the boundaires of the US are only subject to US laws an our judicial system.

Since the Constitution is the Supreme Law of our land, the rights contained in it that are guranteed to our citizens cannot be trumped by a foreign treaty. International Law does not trump domestic law - period.

I find your argument here intresting as well, because you argue left and right about the Constitution, laws, and how Bush violated them in regards to torture. You have argued in the past that the Government has violated constitutional rights of citizens. You have made the argument that we are a country where rule of law is fundamental.

If thats the case, then why are you ok with strippping US citizens of those very same rights in an effort to place them under foreign court jurisdiction? Your arguments for the US to be subservient to International Law and UN treaties effectively is the exact same argument you make against Bush and his actions.

Furthermore, I dont get to vote in the UN. I dont get to vote for or aginst any laws they come up with. I dont have any say in how the judges are picked for their courts. I have absoutely no redress of greivances in any way shape or form in the system you are championing.


Originally posted by aptness
Most of what you cite as constitutionally guaranteed rights are present in all common law courts — the foundation of the US judicial system — as well as in courts of the all countries of the European Union. Regarding assumption of innocence for example, Art. 48 of the Charter of Fundamental Rights of the European Union states that “Everyone who has been charged shall be presumed innocent until proved guilty according to law.


I am not a citizen of the EU or a European country, so therefore while I am in the US I am only subject to US Courts. If I break a law in another country, then the chips land where they may. We do not operate under a one world government, and your arguments sem to insinuate that is where your views are coming from.

Also, the choice of words for your argument is telling - "Most of what you cite as constitutionally uaranteed rights are present in all common law courts"

Most - not all. Thats problematic and unacceptable.


Originally posted by aptness
The actions being called into question occurred outside US borders. The invasions and military action occurred outside US borders, people were captured, detained and tortured, outside the US, pursuant to those military actions.


As did the actions of Al Queida when they pai us a visit. As did the actions of IRaq when they violated UN sanctions in order to continue their illegal weapons program.

Funny enough I dont see any complaints about those actions - Again just the US actions.

I refer you back to the Geneva Convention and the IHL which specifically state that during times of armed conflict, a caputered person who does not meet the requirements of the geneva convention (uniform, rank etc etc etc) will be subject to the military tribunal OR domestic laws of the country who captured them.


Combatants who do not qualify for POW statusIf the combatant is engaged in "armed conflict not of an international character" then under the Article 3 of the general provisions of the Geneva Conventions they should be "treated humanely", and if tried "sentences must ... be pronounced by a regularly constituted court"[14]

A combatant who does not qualify for POW status in an international conflict, under the provisions of the IV Geneva Convention, the combatant must be treated humanely, and if the detaining power wishes to try the combatant for breaches of the law, then the combatant should receive a "fair and regular trial prescribed by the present Convention", to decide on guilt and punishment.[15]

The last time that American and British unlawful combatants were executed after "a regularly constituted court" was the Luanda Trial as mercenaries.[16]



Originally posted by aptness
Regarding your overall objection to universal jurisdiction let me quote from the Nowak and McArthur Commentary on the Convention Against Torture, which is cited in the CCR Bush indictment draft—

As discussed in the Nowak and McArthur Commentary on CAT, [the universal jurisdiction] provision met with “fierce objection” from many States, with the strongest supporter of the draft provision for universal jurisdiction (presented by Sweden) being the United States: “the US Government expressed the opinion that torture is an offence of special international concern which means that it should have a broad jurisdictional basis in the same way as the international community had agreed upon in earlier conventions against hijacking, sabotage and the protection of diplomats.” The Commentary continues: “It was, above all, the delegation from the United States which had convincingly argued that universal jurisdiction was intended primarily to deal with situations where torture is a State policy and where the respective government, therefore, was not interested in extradition and prosecution of its own officials accused of torture.


and again I refer you to the legal dicussion between the White House Councils Office and the Attorney Genrals office that deals with what you just cited above, in addition to article 21 of the CAT - Procedures for the application of universal jurisdiction and what must be done.

Furthermore, where are the complaints and charges against Iraq, Iran, N. Korea S. Arabia, Sudan, China, France etc etc etc - Again the UN ignores it, except when the US is involved.


Originally posted by aptness
Being a person interested in law as you are it saddens me to see you take the positions that you have, your unconditional commitment to American exceptionalism, where US citizens and Presidents can do no wrong, and are immune from every law other than the ones they personally agree with; that former Presidents, regardless of what they have done, continue to symbolize “the United States,” and a possible prosecution on one of them is an attack on every American.


My arguments are based on our Constitution and how its applied. As I said before, we are not all united under a 1 world government, and last time I checked the US has not ceded any sovereignty to the UN. Any actions that origionate from within the United States falls under the jurisdiction of US Domestic Laws. I will not change my argument in this area until such time safeguards are built into international treaties that prohibit selective enforcement based on politics, moral / ethical beliefs of a non involved country etc.

Presidents in this country can be held liable for their actions. Its called impeachment, and it entails the House of Representatives, the peoples house, to conduct the trial and its overseen by the Chief Justice of Supreme Court as prescribed by law in the Constitution. Again, International law does not trump our domestic laws.

I find your argument here intresting though. You have made arguments in the past that the US interferes in other countries where we dont belong. Essentially the argument I am seeing from you, and I couldbe wrong, is one sided. The US must butt out of other countries, while at the same time the US should be subjected to the laws of other political entities that have no jurisdiction / mandate / legal standing within the US.


Originally posted by aptness
I cannot adhere to any of these notions, all of them, in my view, completely contrary to what the founding fathers believed and wanted for our nation, as embodied in our Constitution.


A perfectly valid opinion and viewpoint. The founding fathers though created a vision for the United States, not the UN or the EU. Our founding fathers established a system where the people are governed by their consent. The People give the Government its legal standing and authority.

Not the UN, Not International Law. This is evident in the fact that the US Constitution is the Supreme Law of our Land.

Having UN and International Law "trump" our Constitution is a violation of one of the core reasons of our issues with Britain.

No taxation without representation.

Care to show us where we fit in in the UN or International Law? The UN was toying with the idea of global taxation. Where as a citizen who will be taxed do I get to vote for people in the UN? Where as a citizen do I get to vote on a tax in the first place proposed by the UN? The UN was also talking aboutn a global ban on guns. Where as a citizen who has a constitutional right to bear arms do I get to vote for that measure, or even speak my mind on it?

Where is my ability for redress of grievances against UN or International LAw?


Originally posted by aptness
It’s also tragically hypocritical on your part to rant about universal jurisdiction, claim people in Chile should have been the only ones to try Pinochet, and then unapologetically defend the invasion of Iraq.


I see we are comparing Apples to Moon rocks...

Its not hypocritical in the least bit. As I said before the Chile incident occured prior to CAT, Britain and Spain have no jurisdiction under CAT for their actions. Also, you are ignoring article 21 of CAT, which sets the process for the use of universal jurisdiction. Spain is required to file their findings with the Government of Chile, at which point the Government of chile intiates the investigation. If the government does not act, then Spain can invoke their standing, buts its referred to the ICC for action.

Those procedures were not followed, making the actions illegal.

As far as Iraq goes, again I refer you back to Article 7 and the UN resolutions dealing with Iraq.


Originally posted by aptness
The US had ‘jurisdiction’ to do this? Why shouldn’t it have been the people of that sovereign country to be the ones to resolve their internal problems, like you advocate in respect to Pinochet?


Again Apples to moon rocks man...

Because our invasion of Iraq had nothing to do with the actions of Sadaam Hussein towards his citizens. It dealt with WMD program, and continued violations of UN resolutions. The argument made falls under article 7 of the UN Charter for breach of the peace.

I will also point out at this time that after the first gulf war, the US and UK were the ountries the UN dumped peace keeping operations on. The US spent years complaining to the UN about Iraqs breach of UN resolutions, and not suprisingly the UN failed to act, just as they failed to act with the arms embargo list I pointed out, just as they failed to apply the CAT to more than just 5 countries.

Why didn't Spain, britain, France, etc make charges againt Iraq for their violations of Un agreements they are part of?

The UN is not a democratic entity, and it does not derive its authority from consent of the people.


Originally posted by aptness
The United States’ actions against Iraq were contrary to international law, and they were not necessary for the self-defense of the United States. And the same goes for torture.


They are not contrary to international law, I refer you back to UN resolutions as well as Article 7.


Originally posted by aptness
When it comes to US interventions and policies you seem to adopt a view of broad jurisdiction and power, where the United States can act unilaterally, by whatever means, and is immune from every international law.


Again my arguments are based on the legal framework of the US Constitution as well as the UN Charter. My issue is with the UN and other member countries who do nothing but bitch and criticise yet fail to tak any action on their own. In the end the US is the target, and because of this, other countries could give a rats ass about what happens to us, so long as their own intrests are protected and evryone else be damned..

Again evidence of this is the complete and total lack of other countries to enforce UN resolutions on Iraq and to hold member nations accountible for ignoring their obligations - China, France, britain, Russia, Saudi Arabia etc etc etc.

Proof of this is evident with the 5 CAT referals to the ICC, which by the way 2 of those countries are not even part of the treaty, which is a violation itself of CAT. Its evident with the arms embargos that have been violated by member nations with the UN doing nothing.

When the UN decides to get its house in order and apply their :laws: fairly, then I have no issues reevaluating my opinion and view point. Until that times occurs though, the UN is nothing more than a limp, spineless country club that does nothing but complain about the world but takes no active effort to fix anything.

and as far as International Law goes, it does NOT trump US domestic laws. I know you dont agree with that, but its the way it is. The whole concept behind the Constitution is so we can have a government that is of by and for the people.

The UN is not anywhere close to that, and neither is the ICC.


Originally posted by aptness
You criticize and dismiss other countries’ actions as being strictly motivated by political reasons, but the reality is that you apparently defend the policies of the Bush administration because you politically agree with said policies, because legally they are indefensible, from a domestic or an international perspective.


Ok.. go back through and read the other threads that deal with these exact same topics and you will see a reoccuring theme -

Prosecute Bush / Punish the US

Nowhere will you find any arguments that demanded Sadam be prosecuted, or Kim Jong Il, Or King Abdullah, or Mubarik.. I can go on and on but I wont.

Even your own arguments are hypocritical in the sense you demand the Constitution be followed, yet your ready to ignore provisions in it because they conlict with International LAw.

Not at all. You seem intent on ignoring my counter arguments and seeing only what you want. As I have stated many many many many times now, I have no issues with UN rules or international laws, but not in their current form, and certainly not with the current actions of the UN.

Explain to me why those countries who bitch about the US have time and again failed do go after China, N. Korea, Sudan, Somalia, Venezuela, Saudi Arabia etc for violating the same areas the US is accused of violating?

Again, its political and has nothing to do with actually using UN agreements or International Law as they are intended to be used. As I said before the intent behind these treaties is to stop the action before it starts, not wait 5-10 years and then go back and complain about it.

Want another example to prove my point. Hezbullah, Hamas, PA an turkey demanded a UN investigation into the Israeli Floatilla incident, which occured. These groups screaming for that invstigation sang high praise of the UN for their conclusions.

That tune changed when the UN investigated the assasination of Harari. The UN implicated Hezbullah Syria and Iran. What happened? The UN was denounced, and any person who sided with the results of that investigation were told they would be executed as collaborators to Israel and the US.

Again, no action taken by the UN.

When the UN members decide they are going to enforce all the agreement sin the same manner, get back to me.

Until that happens, you will find me using our Constitution, which I took an oath to protect and defend, against all enemies foreign and domestic. Until the people of the United States decide as a whoie to cede power from our Government to the UN, the UN can sit down and shut up.



posted on Feb, 10 2011 @ 03:25 PM
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Originally posted by Laurauk
reply to post by Xcathdra
 


That is why Mr Blair has not been summonned yet to stand trial for war crimes over the Iraq war, he has imunity in the UK as an ex Prime Minister.

Until the Law is changed people like him, will be able to live scot free,without ever being brought to book over thier actions.


edit on 10-2-2011 by Laurauk because: (no reason given)


How is your push going in order to have China, France, Sudan, Iran Saudi Arabia, North Korea etc going to hold them accountible for their actiosn and violation of UN and International Law?



posted on Feb, 10 2011 @ 08:07 PM
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reply to post by Xcathdra
 
So you dismiss what the ICRC — the controlling authority of the Geneva Conventions — says about torture and treatment of prisoners because “an opinion is not law,” and then you claim what the Bush administration did was completely legal by referring me to the opinions of the White House Office of Legal Counsel.



Its not flawed and yes, only the US Courts have jurisdiction over US Citizens when actions taken originate form within the political boundaries of the United States.
So according to you, as long as a US citizen’s actions ‘originate’ from within the “political boundaries” — whatever that means – of the United States, that US citizen only has to answer to US courts, and is immune from every accusation and prosecution from an outside body, organization or court.

And apparently it doesn’t matter that those actions and orders resulted in invasions of foreign countries, the killing of thousands of civilians, and torture of hundreds more, all outside the borders of the United States.

One must wonder, is there anything a President of the United States could do that an international or foreign body could judge him for? The answer according to you is apparently no. Got it!



Since the Constitution is the Supreme Law of our land, the rights contained in it that are guranteed to our citizens cannot be trumped by a foreign treaty.
The Constitution and all treaties made in the authority of the United States. You forgot that part of the supremacy clause.


You have made the argument that we are a country where rule of law is fundamental. If thats the case, then why are you ok with strippping US citizens of those very same rights in an effort to place them under foreign court jurisdiction?
It’s exactly because we are a nation of laws that no one is above the law. Not Bush, not Obama, not me or you.

You characterize my position, and that of those who are asking for Bush to be prosecuted, as if it’s completely unfounded and incomprehensible that people are asking for this. You’re obviously in your right to believe Bush didn’t do anything wrong, but that’s not the opinion of millions of people, Americans and foreigners.

People outside the United States are asking Bush to be prosecuted because the United States has failed to investigate the Bush administration’s policies and prosecute those guilty of torture, contrary to its obligations under the Convention Against Torture that it signed and ratified.

I would like to see Bush and every other guilty parties prosecuted in the United States, but unfortunately my government does not care about the rule of law, or is too worried about the political fallout, to do the right thing and act in accordance to its obligations.


while I am in the US I am only subject to US Courts. If I break a law in another country, then the chips land where they may.
What about breaking international law?

Just because Bush’s actions “originated within the political boundaries” of the United States doesn’t mean they don’t have consequences outside the borders of the United States, and he, and others, aren’t liable for those consequences.

If this was true then only the Afghan government could prosecute Bin Laden for 9/11, since his orders originated within the boundaries of Afghanistan. I’m sure you will now tell me how this legal framework you put forward only applies to US Presidents.



Essentially the argument I am seeing from you, and I couldbe wrong, is one sided. The US must butt out of other countries, while at the same time the US should be subjected to the laws of other political entities that have no jurisdiction / mandate / legal standing within the US.
You are wrong, sir. Let me elucidate what my argument is.

My argument is that even US Presidents must obey the law. I know, it’s a radical notion.

The law in the United States means domestic law as well as the treaties made in the authority of the United States. My argument is that the policies of the Bush administration violated domestic and international law. According to our legal obligations there should be an investigation and the guilty parties, since in our jurisdiction, should be prosecuted. Since my government has failed to do so, other countries have an obligation, under those treaties, to prosecute the guilty parties.



posted on Feb, 11 2011 @ 02:29 AM
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reply to post by aptness
 


OK.. First thing Iraq and Afghanistan

Afghanistan - No UN resolution needed for military action. It is covered under UN Charter Chapter VII - Article 51 as well as September 18th, 2001 - Public Law 107 - 40 - Authorization for Use of Military Force - Joint resolution to authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Iraq - October 16th, 2002 - Public Law 107 - 243 - Authorization for Use of Military Force Against Iraq Resolution of 2002 - Joint resolution to authorize the use of United States Armed Forces against Iraq

UN Resolutions dealing with Iraq - Begining with the first gulf war
1990 -

United Nations Security Council Resolution 687, adopted on April 3, 1991, after reaffirming resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, 677, 678 (all 1990) and 686 (1991), the Council set the terms, in a comprehensive resolution, with which Iraq was to comply after losing the Gulf War.


2002 -

United Nations Security Council Resolution 1441 is a United Nations Security Council resolution adopted unanimously by the United Nations Security Council on November 8, 2002, offering Iraq under Saddam Hussein "a final opportunity to comply with its disarmament obligations" that had been set out in several previous resolutions (Resolution 660, Resolution 661, Resolution 678, Resolution 686, Resolution 687, Resolution 688, Resolution 707, Resolution 715, Resolution 986, and Resolution 1284). [1]


Iraqs failure to comply with all UN Resolutions that were in place after the first gulf war placed them in breach. Use of force was allowed based on UN Charter - Article VII Breach of Peace.


Originally posted by DimensionalDetective
For starters, how about the nearly ONE THOUSAND lies he and his admin bellowed out around the clock to charge us into this invasion---Instigating war based on false pretenses?


US did find Iraq WMD



There were weapons of mass destruction in Iraq after all.

The massive cache of almost 400,000 Iraq war documents released by the WikiLeaks Web site revealed that small amounts of chemical weapons were found in Iraq and continued to surface for years after the 2003 US invasion, Wired magazine reported.

The documents showed that US troops continued to find chemical weapons and labs for years after the invasion, including remnants of Saddam Hussein's chemical weapons arsenal -- most of which had been destroyed following the Gulf War.

In August 2004, American troops were able to buy containers from locals of what they thought was liquid sulfur mustard, a blister agent, the documents revealed. The chemicals were triple-sealed and taken to a secure site.

Also in 2004, troops discovered a chemical lab in a house in Fallujah during a battle with insurgents. A chemical cache was also found in the city.


The presence of WMD's inside Iraq validated the US/UK invasion under UN REsolutions already in place since the 1st Gulf War ended. Thos resolutions laid out the consequences for failing to comply with those resolutions and were all authorized by the UN Security Council. No further authorization is required based on:

1 - Iraq failing to comply with ALL resolutions
2 - Possession of WMD's violated the cease fire that ended the first gulf war
3 - Failure to comply with required inspections prior to 2002

Now - Accusation of War Crimes against Bush, Cheney and Rumsfeld.

UN Definition of a War Crime

The draft statute enumerates four different categories of war crimes. The first two categories apply to international armed conflicts and are largely based on well-established principles of international law. There is broad support for their inclusion:

A. Grave breaches of the four Geneva Conventions of 12 August 1949

B. Other serious violations of the laws and customs applicable in international armed conflicts (largely derived from the Hague law, limiting the methods of waging war).

C. In case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949 (which bars specified acts committed against persons taking no active part in the hostilities)

D. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law (based largely on the Second Additional Protocol to the four Geneva Conventions).


Part C and Part D only apply in times of armed conflict when its not part of an international character. Al-Queida and the Taliban (they are not the UN recognized government, and therefore are not considered a government but controlling faction) fall under the last 2.

A war crime has absolutely nothing to do with lies at all. It has to do with the actions of the combatants towards each other, civilians, POWs / enemy combatants, summary execution (exceptions exist).

The other Governing criteria in this mess are these:
International Humanitarian Law
Geneva Conventions
Rule of Law in Armed ConflictsInternational Human Rights Law
UN Convention Against Torture

as well as US Domestic Law concerning the status of enemy combatants and military tribunals concerning processing of enemy combatants and detention of under military custody.

The UN resolutions / laws covering war, geneva conventions are specific in regards to what can and cannot occur to POW's. However, enemy combatants fall under a second category. Enemy combatants fall outside the established norm of the Geneva Conventions because they dont meet criteria:

3rd Geneva Convention

Article 4 defines prisoners of war to include:
.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces
4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
that of being commanded by a person responsible for his subordinates;
that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
that of carrying arms openly;
that of conducting their operations in accordance with the laws and customs of war.
4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.
4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
4.1.6 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.
4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy.
Article 5 specifies that prisoners of war (as defined in article 4) are protected from the time of their capture until their final repatriation. It also specifies that when there is any doubt whether a combatant belongs to the categories in article 4, they should be treated as such until their status has been determined by a competent tribunal.


US did find Iraq WMD

Torture is covered under the CAT (Convention against Torture - The US and UK is a signatory to the first treaty. We are NOT a signatory to OPCAT (Rome 2002).

Under CAT (and other people aregue with me on this point and thats fine) a signatory to the treaty is prevented from "torturing" someone, with torutre defined as:


'''Article 1''' of the Convention defines torture as: [[Quotation |Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. |Convention Against Torture, Article 1.1]]

Actions which fall short of torture may still constitute cruel, inhuman or degrading treatment under Article 16.


However, going back to the Geneva Convention definition of a POW, Taliban and Al-Queida do not meet the criteria of being a POW. They are established as an enemy combatant / belligerent. As such they do not receive full protection of the Geneva Conventions. The requirement put forth is the country who has taken them prisoner can utilise Civilian Domestic Laws or Military Tribunals.

Since they were captured during a time of armed conflict, there is no requirement to charge them with a crime. This is supported by actions during WWI, WWII, Korea, Vietnam, Grenada, Panama, First Gulf war, where captured persons were held until the end of the war / conflict at which time prisoner swaps / repatriations occured.

Going back to CAT, there is a provision in their that invokes the term and use of Universal Jurisdiction. This concept is where if a country violates CAT, and refuses to take actions to correct it, other countries can actually give themselves jurisdiction. The problem is the US signed and ratified this treaty, and under article 2 section 2 of the US Constitution, the treaty becomes law and applicable to US citizens.

Problem 1 - A foreign treaty cannot grant authority to the US Government that the Constitution has not granted to them.

Problem 2 - When a treaty is signed and becomes offical in the US, it becomes part of the body of US Federal Law - which means the treaty can be changed / challenged / narrowed / etc by the US Court system.

Since orders were issued by the Preisdent and military commanders within the political boundary of the US, there was no violation of CAT (Article 21 - requirements for extradition and invocation of universal jurisdiction). The other part is when a nation refuses to abide by the treaty, the ase is referred to the International Criminal Court. The US is not a signatory to that entity, and as such it has not enforcement authority towards the US or its citizens.

Next up - Legalities of torture under Domestic Law / Military Law
The Torture Memos / Bybee Memo / 8/1/02 Interrogation Opinion,


were a set of legal memoranda drafted by Deputy Assistant Attorney General of the United States John Yoo and signed by Assistant Attorney General Jay Bybee. They advised the Central Intelligence Agency, the United States Department of Defense, and the President on the use of mental and physical torment and coercion such as prolonged sleep deprivation, binding in "stress positions," and waterboarding, and stated that acts widely regarded as torture might be legally permissible under an expansive interpretation of Presidential authority during the "War on Terror." These memoranda have been the focus of considerable controversy, and were repudiated by President Barack Obama in early 2009.


** Repudiation by President Obama is irrelevant to the argument against Bush, Cheney and Rumsfeld **

Ok - The nail in the coffin in my opinion for the argument to charge the 3 with any crimes at all is based on The International Humanitarian Law (Laws of War / Laws of Armed Conflict) which is the basis for all other treaties covering this area.

Specifically noting that the Taliban and Al queida are not signatories to any of these conventions (Geneva / IHL / CAT/ ETC) they fall under the category already mentioned (non international conflict etc).

These 2 groups routinely:
* - use human shields by engaging in fighting close to civilian populations, to run up civilian body count
* - they use that body count as propoganda purposes (print and media)
* - they use schools, hospital and mosques to store weapons and to fight from
* - they do not have a military uniform, and routinely will pretend to be civilians while being a combatant
* - they mistreat the civilian populations by forced moves, mass executions, summary judgment
* - they mistreat the civilian population when of differing religion
* - they employ children under the age of 18 as combatants throug coercian
* - they launch reprisals against familes
* - they employ summary execution of foreign non combatant nationals (NGO/assistance groups)
* - they employ summary execution of capture military personell who are in uniform
* - they video tape these executions and brodcast them as propoganda
* - they summarily execute captured military personell for refusing to convert to Islam

I can continue on, but you get the idea. Here is where the arguments for war crimes / torture come off the wheels.

The same agreements people want to use to prosecute Bush / Cheney and Rumsfeld listed above, contain this overlooked yet very important warning.


There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories.


Why is this important?


Violations and punishment

During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal.


The part just above that is emphasized was done by mean, because this is the basis that allows the actions people find offensive and want to hold Bush and them accountible for. Continued in detail below.


Soldiers who break specific provisions of the laws of war lose the protections and status afforded as prisoners of war but only after facing a "competent tribunal" (GC III Art 5). At that point they become an unlawful combatant but they must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV Art 5.

Spies and terrorists are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant.

Depending on the circumstances, they may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution.

The laws of war neither approve nor condemn such acts, which fall outside their scope. Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.

After a conflict has ended, persons who have committed any breach of the laws of war, and especially atrocities, may be held individually accountable for war crimes through process of law.


The last part is where people will try to argue, but its incumbant on both parties being signatories as well as holding the status of POW, with captured Taliban / Al Queida personnel do not - They are classified under UN Agreements / Geneva Conventions and US Domestic Law as enemy combatants.

To round out my argument, the "torture" we subject them to - waterboarding, sleep deprivation, etc is a cake walk comapred to how they treat their captives and fellow countrymen. We have afforded our detained enemy combatants use of the legal system as well as counsel to protect what rights they have left under US Law and International Law.

The other argument I have seen is torture has never saved any lives. I disagree with that statement when applying it to our detainees. Top Al Queida leadership thathave been :tortured" by waterboarding have revealed information that has in fact saved American Lives.

Everything that Bush, Cheney and Rumsfeld have done have been in accordance with International Standards based on actions and behavior of the Taliban / Al Queida personnel. They have made their decisions known which allowed court challenges to those actions. They have also allowed Congress to review those actions, allowing them to pass laws to restrict / limit certain action.

Those actions have been to the Courts, and in the end the majority of this argument and legal standings have made their way to the Us Supreme Court, who has made rulings based on treaty and US Law.

In order to support a warcrime allegation, there must be a denial to any oversight of actions taken during times of the conflict. In this case, they have fully complied with requirements. They sought legal counsel advice on torture from white house counsel, which does not share confidential priveladge, which means they are required to disclose any conversation they have had dealing with everything. They also sought the advice and opinions of the Us Attorney General and his staffs opinions.

Now, whether you agree with this or not is completely up to you and your opinions on this. My personal opinion in this matter, as far as President Bush goes, is he fulfilled his oarth to protect and defend the Constitution of the United States against all enemies, Foreign and Domestic, with no mental reservations there of.

He took actions based on information from many many sources, all in the intrest of protecting US citizen which is one of his key duties as President of the United States. He hid nothing, and left it all out on the field so history can judge his actions. Cheney and Rumsfeld took the same oath and acted in the same manner, whether we agree with it or not.

This entire mess is along the same lines of my arguments when Law Enforcement uses force. People get all of the information after the fact, and because of that, draw conclusions and assumptions that the key players "should have known about".

Also, my other pet peeve in all of this is President Obama picked up where President Bush left off. How come know one is demanding he be charged and tried for war crimes? How come no one screamed and demanded Hussein be charged with war crimes for his treatment of his people. Or China, Iran, Saudi Arabia, Sudan, N. Korea, Syria, Hezzbullah, Hamass??

I stand by my earlier comment that in my opinion, taking a stand against those countries and doing whats right, is to hard. Its easier to target a country that does have a rule of law, where any person on the planet can come, make a sign and protest in front of the White House, Congress or the Supreme Court building without fear of reprisal from the Government.

They scream to be heard, but in my opinion its nothing more than an attention getting scheme. If it were more than that, then the US, Bush, Rumsfeld and Cheney would not be the only topics of conversation in those circles.

Thats my thoughts and 2 cents on the matter. Feel free to counter me and thanks for letting me use the thread for this.
edit on 11-2-2011 by Xcathdra because: (no reason given)



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