Saturday, January 08, 2005
"Unprotected Persons" in the "War Against Terrorism"
This morning's paper tells us that 325 non-Iraqis have been captured in Iraq. It goes on to say that these persons are not considered by the American Government to be "protected persons" under the Geneva Conventions. It is proposed and assumed that they will be warehoused in yet another Guantanamo-like detention facility. Leaving aside the torture and mistreatment that has been reported at these facilities, the continuation of the Guantanamo approach leads to some alarming consequences. (For readers who wish to go into this discussion at greater length, consider the following excellent discussion produced by the International Committee of the Red Cross.)
The United States is playing fast and loose with the definitions and standards that have been developed through the Geneva Conventions and international practice. In fact, there is no category of persons that are assumed by the Conventions to be completely "not protected". What has been done is suggest that there are no protections for captured persons who are not engaged in lawful combat but yet acting against our interests in a war situation. These include spies, military or not, civilians casually attacking our forces or interests, or combatants not in uniform or under the organized control of an opposing army. A lawful combatant is one fighting us in a normal military situation. An unlawful combatant is one attacking us outside those parameters. The Geneva Conventions do assume that an unlawful combatant is not imprisoned in the same manner as a regular soldier. His care is not subject to the same standards. And, unlike a normal Prisoner of war", he is subject to trial for his actions, often a military trial. During World War II, the United States captured some German saboteurs landed by a Uboat. They were tried and executed. The Supreme Court affirmed our right to do so, and it is this precedent that has been used to justify recent governmental actions against unlawful warriors.
There are two problems with the approach. First, because the persons captured are not regular prisoners of war, international law does not thereby give us carte blanche to do anything we wish. International rules against torture and the mistreatment of persons in custody still apply. Second, persons detained outside the normal rules for prisoners of war have the right to a trial. There is no right to indefinite incarceration without trial in either American or international law.
The American government argues that in a world of terrorists, the whole world is the battlefield. Therefore, it would be most imprudent to allow persons suspected of being terrorists back onto this new field of battle. There is some justice in this argument. Yet it conflicts with the opinion of much of the watching world that believes that persons innocent of any provable violent actions should not be jailed indefinitely without access to lawyers and due process. The fact that the U.S. government appears to agree with this position if the person is an American citizen appears to support the international view. American citizens in Guantanamo are being given lawyers and trials, if slowly and reluctantly.
In spite of the antipathy of the Administration and, unfortunately, a large part of the American public, to international institutions, the eventual solution to this problem must come through the development of international means of processing the cases of these persons. This may require a new kind of court and new kinds of international detention facilities. It may also mean that some persons are let out into the world to commit more mayhem. But our system of justice allows this to happen frequently with those processed by our courts. And the alternative of not treating this running sore in international relations, and maintaining ever-growing facilities incarcerating persons whose crimes have never been adjudicated, may be a much worse alternative.
Whatever happens, the opponents of American policy in this regard, whether domestic or foreign, need to get beyond just criticizing what is occurring and start working toward a resolution of what is a real problem.
The United States is playing fast and loose with the definitions and standards that have been developed through the Geneva Conventions and international practice. In fact, there is no category of persons that are assumed by the Conventions to be completely "not protected". What has been done is suggest that there are no protections for captured persons who are not engaged in lawful combat but yet acting against our interests in a war situation. These include spies, military or not, civilians casually attacking our forces or interests, or combatants not in uniform or under the organized control of an opposing army. A lawful combatant is one fighting us in a normal military situation. An unlawful combatant is one attacking us outside those parameters. The Geneva Conventions do assume that an unlawful combatant is not imprisoned in the same manner as a regular soldier. His care is not subject to the same standards. And, unlike a normal Prisoner of war", he is subject to trial for his actions, often a military trial. During World War II, the United States captured some German saboteurs landed by a Uboat. They were tried and executed. The Supreme Court affirmed our right to do so, and it is this precedent that has been used to justify recent governmental actions against unlawful warriors.
There are two problems with the approach. First, because the persons captured are not regular prisoners of war, international law does not thereby give us carte blanche to do anything we wish. International rules against torture and the mistreatment of persons in custody still apply. Second, persons detained outside the normal rules for prisoners of war have the right to a trial. There is no right to indefinite incarceration without trial in either American or international law.
The American government argues that in a world of terrorists, the whole world is the battlefield. Therefore, it would be most imprudent to allow persons suspected of being terrorists back onto this new field of battle. There is some justice in this argument. Yet it conflicts with the opinion of much of the watching world that believes that persons innocent of any provable violent actions should not be jailed indefinitely without access to lawyers and due process. The fact that the U.S. government appears to agree with this position if the person is an American citizen appears to support the international view. American citizens in Guantanamo are being given lawyers and trials, if slowly and reluctantly.
In spite of the antipathy of the Administration and, unfortunately, a large part of the American public, to international institutions, the eventual solution to this problem must come through the development of international means of processing the cases of these persons. This may require a new kind of court and new kinds of international detention facilities. It may also mean that some persons are let out into the world to commit more mayhem. But our system of justice allows this to happen frequently with those processed by our courts. And the alternative of not treating this running sore in international relations, and maintaining ever-growing facilities incarcerating persons whose crimes have never been adjudicated, may be a much worse alternative.
Whatever happens, the opponents of American policy in this regard, whether domestic or foreign, need to get beyond just criticizing what is occurring and start working toward a resolution of what is a real problem.
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