POLITICS: Geneva Convention Suspended For Non-Iraqi Prisoners

The Justice Department is reported to have rendered a new legal opinion to the effect that non-Iraqi nationals are not necessarily entitled to the protection of the Geneva Convention. This new policy direction represents a reversal of the Bush administration's position since March, 2004 that all prisoners, be they military or civilians, would be accorded the rights under the Convention.

Unnamed US official sources are cited for the proposition that the opinion was ex-post facto justification for the legality of the CIA's reported secret transfers of 18 non-Iraqi prisoners to unkown locations outside Iraq. The Geneva Convention prohibits the deportation of a civilian captured in an occupied territory.



The Department of Justice opinion is said to have revived concerns because the non-Iraqis are described to be stateless persons that are not entitled to the protection of the Convention. Particular concern has been expressed about the prospect that certain categories of prisoners may effectively be taken to be beyond any legal framework or protection.

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[edit on 26-10-2004 by Banshee]

Originally posted by G_Scard
The Department of Justice opinion is said to have revived concerns because the non-Iraqis are described to be stateless persons that are not entitled to the protection of the Convention

They are irregular non-state radicals, why should they be recognized under the geneva convention? THey are subject to criminal law, not the convention, it only deals with uniformed soldiers.

a reversal of the Bush administration's position since March, 2004 that all prisoners, be they military or civilians, would be accorded the rights under the Convention

And Bush says Kerry waffles.

They are irregular non-state radicals, why should they be recognized under the geneva convention? THey are subject to criminal law, not the convention, it only deals with uniformed soldiers.

Under whose criminal law? The USA? They weren't captured in the USA and didn't commit any crimes within the USA.

This latest (mis)interpretation of law by the Bush Administration just goes to reveal that much more of its moral depravity and its disregard for intenational norms of conduct by nations in their treatment of individuals. It is bizarre to witness the US administration struggle to justify inhumane treatment of captives (regardless of who those captives may be). Don't forget, a captive need only be a "suspected" this or that to qualify for mistreatment or to be killed (murdered) by Uncle Sam.

Maybe people will get trials now! Wouldn't that be cool? To find out if the people in prison were inncocent or guilty?

Originally posted by dubiousone
They are irregular non-state radicals, why should they be recognized under the geneva convention? THey are subject to criminal law, not the convention, it only deals with uniformed soldiers.

Under whose criminal law?
The interim authorities law.

Don't forget, a captive need only be a "suspected" this or that to qualify for mistreatment or to be killed (murdered) by Uncle Sam.

I agree completely that they should still be treated like human beings. If they are being detained by the military then the military must have rules and regulations outside of the GC governing that, so torture and murder are not permited. However, things like permanent detainment without a trial are entirely possible. If they are being held the the Iraqi Interim Gov, then, well, thats their decision to decide whats right and wrong, and we should be advising them to treat them humanely. Shipping people off to jordan so the jordanians can torture them is entirely unacceptable.

The contention that the prisoners are subject to the local sovereign's criminal law is fatally flawed. These prisoners were transported out of Iraq and cannot therefore continue to benefit from Iraqi law. Nor are they necessarily subject to US law or constitutional protection, as US criminal law and constitution can have no effect outside of US soil, at least as against non US citizens. It therefore appears that the prisoners are being treated by the US as prisoners of war, and I think I have a much easier time understanding the administration's first position rather than the flip flop.

There is some precedent.

Consider the curious case of United States v Manuel Noriega. In that case, the U.S. invaded a sovereign nation, captured its leader, brought him to the U.S., tried him under U.S. law, convicted him, and the conviction was upheld.

Manuel Noriega remains in U.S. custody to this day.

Whether or not a similar rationale would apply to criminals captured in Iraq has yet to be tested in court, as far as I know, but it's not a stretch to see the same scenario playing out.

About the only thing that is clear in this case is that the Geneva Conventions do not apply, contrary to the false claims of anti-U.S. detractors who have either never read the conventions (I have) or are knowingly lying about them.

Majic

I confess to having tremendous difficulty with the substantive proposition you advocate, much less your labelling of the contrary views as a lie. Given your understanding of the substantive text it may be worthwhile for you to share your analyses.

To get to your conclusion (US Law applies to the exclusion of international and domestic law) one woule have to find a very narrow gap between the latter two bodies of law.

You have to give some credence to the exress terms of the conventions which on their face apply not only in the case of international war between two contracting states, but to conduct of a contracting state in times of occupation (with or without resistance), in times of peace, to members of armed forces of a state, members of an armed opposition, civilians and victims.

That means you have to find that:
1. Convention I doesn't apply because those captured are not members of ANY armed forces in the field;
2. Convention III doesn't apply because they are not prisoners of war;
3. Convention IV doesn't apply because they are not civilians entitled to protection;
4. Protocol II doesn't apply because those captured are also not members of "an armed opposition controls enough territory to enable them to carry out sustained military operations"; and
5. The Iraqi sovereign is excluded from enforcing its criminal law against those captured.

My sense is that it is impossible to hold to all of those propositions without engaging in fatal self-contradiction.

Originally posted by G_Scard
These prisoners were transported out of Iraq

I thought we were talking about the ones that are being held in iraq? They're talking about foreign fighters captured in Iraq.

It therefore appears that the prisoners are being treated by the US as prisoners of war

They're specifically not being treated as POWs.

1. Convention I doesn't apply because those captured are not members of ANY armed forces in the field;
2. Convention III doesn't apply because they are not prisoners of war;
3. Convention IV doesn't apply because they are not civilians entitled to protection;
4. Protocol II doesn't apply because those captured are also not members of "an armed opposition controls enough territory to enable them to carry out sustained military operations"; and
5. The Iraqi sovereign is excluded from enforcing its criminal law against those captured.

How don't these apply? The insurgents don't control any territory, they aren't regular uniformed military, and the foreign fighters obviously aren't iraqi civilians. I don't understand about the last bit tho, are you saying that the Interim Authority has to be incapable to prosecuting them in order for the US to deal with them on their own terms? I would think that most of what is happening in regards to prisoners is going on with the approval of the IA.