I posted a comment this morning but it seems to have been lost. So I’m going to do it here, were I feel less likely to lose 15 minutes of typing. This is basically and extended comment to this post at the Debate Link.
It appears that I didn’t locate the “correct” Geneva convention, because the articles you cite are not the same as the document I linked (and found).
If you have a link to an online copy that you are using, I’d appreciate it.I have now found the full document
When I had written:
we must now ask our soldiers to document, detain, mirandize(?), and offer legal counsel(?!), and then testify in court to the circumstance of their apprehension.
The question marks were meant to indicate that while I didn’t know what might be required to provide enough documentation to accompany captured illegal combatants to verify that they were indeed combatants, I didn’t seriously think Mirandizing would be one of them. But that those methods are getting close to what the requirements of habeas for every prisoner might require in practice. Your “ironic?” insistence that was a major point of mine is either a (unfortunate) debaters tactic or poor writing on my point, alas, more likely the latter. When you wrote,
If they challenge the detention, we can say “you were caught here, on this date, carrying arms, out of uniform.” Case dismissed. Gosh, that was easy.
Without the testimony of the soldiers/officers that caught him and accompanying paperwork/documentation the detainee would say he was a civilian unfairly caught up in a sweep. If no evidence, testimony, or corroborating documentation then … Gosh that’s just as bad as the case as we had before, if “it is that easy” and your “habeas” offers only protection on paper, but not in fact. Gosh what an important protection provided. Soul of America, on paper … no difference in fact. What a lawyerly pretention. The alternative is to put the documentation burden on our soldiers that is equivalent to a policeman’s, which is what I protested as impractical. You seem to insist that the “fix” is easy. My point it is it isn’t.
It is unclear why you kept harping on torture and “harsh interrogation techniques” because in a final paragraph I thought I made it clear I didn’t support such actions.
For the sake of time, I’ll jump to your “conclusions” and then offer mine.
- Selecting people to be imprisoned forever and possibly tortured via a process that has all the procedural fairness of pointing a finger is hideously hideously unfair and immoral.
You seem with “gosh that was easy” to find that “you were caught here, on this date, carrying arms, out of uniform. Gosh that was easy” … but if the punchline is “and the sentence is execution by lethal injection to be carried out at sunset” do you still agree I wonder. How about trying them via military tribunal and if found guilty of war-crimes (fighting out of uniform) just execute them, or if that seems to encourage their honor based society sentence them a punishment chosen by our that might best discourage such behavior.
- Having to give Miranda rights to people on the battlefield would be dumb. Fortunately, nobody seems to advocate it.
“Gosh”, and I didn’t seriously suggest it either. I did complain that the required level of documentation to detain/sentence/convict and perhaps execute men for war crimes is more than we might desire an objection you seemed to have basically.
- Post-detention Habeas review to determine if there are grounds for detention–tried and true since 1215!–seems to be a reasonable way of adjudicating the original status claim. Some comparable procedure is required under Article 45 of the conventions anyway, and this seems to work well enough. This would help prevent random innocent people from accidentally being caught up in the detention system, which is a recurring problem in the status quo.
And wouldn’t change matters. Every prisoner would claim an out any documentation would say otherwise. No change. What you are insisting on would then grant more rights to illegal combatants than legal ones. What a wonderful way deterrent to help protect civilians and stop the rampant rise of war-crimes … not. That isn’t to say your objection isn’t right, that post-detention Habeas review isn’t the solution. But you haven’t demonstrated that in this sort of conflict that its either practical or helpful. Halting a small number of accidental incarcerations at the cost of a much larger number of civilian casulaties seems unwise.
- Once that claim has been determined, prosecutions of illegal combatants can proceed under the rules articulated under Article 75, which guarantee basic procedural rights of the accused. Treatment of the detainees also is governed by Article 75.
Again, my articles don’t match your articles. I’ll look further. See below, I think your reading isn’t necessarily correct
- Not adhering to the rules set down in Articles 45 and 75 constitute treaty violations.
The points I tried to make were as follows:
- To insist that every soldier carry equipment to document, demonstrate, and possibly have to testify over the detention of every illegal combatant captured in every situation is an odd requirement in the mission of waging war. My objection as to the documentation requirements his (as I insist) academic instistence that providing evidence to support the taking of each prisoner individually is a high burden.
- Mr Schraub writes:Put simply, we have an obligation to accept real surrenders, and no obligation to accept fake surrenders. Ok, now write some rules of engagement that tell us how to tell the difference. That was precisely my starting point, the continued insistence on putting up road blocks without admitting that this is a horribly messy situation and is very complex and that your simple “Gosh that was easy” rhetoric is disingenuous at best. The point is the rules of engagement are very complicated now, because the enemy are all fighting as illegal combatants.
- The Geneva Conventions, to the best of my understanding, where instituted as a way of setting standards of practice in warfare primarily to protect from collateral damage, i.e., loss of civilian life and property. It appears as if Mr Schraub’s interpretations of these conventions yield more lenient, not less lenient treatment to illegal than legal combatants. If that is the case, then I submit that these this treaty needs to be renegotiated or violated.
The primary concern here is the protection of civilians. The enemy in Iraq and the Middle East in general have consistently violated the Convention as a matter of general practice, i.e., their “rules of engagement” as such are in direct violation of any sense of legal combatant status and consistently act in such a way to weaken such protections, which is specifically in contravention of the allowed “ruses”, and consequently have indeed endangered and caused the death of countless civilians. What is needed by anyone (even perhaps by Mr Schraub) is to first and foremost consider the best and quickest way to send the strongest possible message that such tactics are not acceptable. If that method is granting or denying habeas, giving out candy corn or chocolate kisses, putting in public stocks or whatever. These methods need to be done post haste. However, as I pointed out in my last essay … I don’t feel torture is or even should be considered as one of those methods. I’m not sure why Mr Schraub seems to so often intimate as such, perhaps insulting me that way is a “debaters tactic”.
- Ok, now it seems I’ve found the appropriate G.C. document. Articles 40 and 41 do not clearly define at least as I read it to expressly forbid the use of rules of engagement as I had described earlier contra Mr Schraub’s remarks. That is,
Article 40. Quarter
It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis.
But, one might ask, is an adversary considered protected by this rule of engagement if he is in actively engaging in war crimes at that time. In the next article
Art. 41. Safeguard of an enemy hors de combat
1. A person who is recognized or who, in the circumstances should be recognized to be hors de combat shall not be made the object of attack.
2. A person is hors de combat if: (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;
Currently, while driving to and from a job-site, I’ve been listening to “Thunder Road” on a library BoT. This is an account of the 3 days of armored assaults into Bagdhad which ended the war. In the first day, after the umpteenth time that Iraqi soldiers repeatedly feigned unconsciousness or incapacitation so that after the tanks passed, they could rise up and fire upon them, the tank column was ordered to “double tap”, i.e., shoot the “dead” to “make sure”. This ad hoc rule of engagement was in contravention of a reading of this article. But I think it was the right decision. When engaged with an enemy whose rules of engagement and practices are explicitly in contravention of that treaty at times you are forced by necessity to also contravene the treaty, and I think that insisting that at all times we “play by the rules” is wrong (or perhaps at best just ivory tower naiviete).
The point is, I don’t think it’s clear that not giving quarter to those non-uniformed mortar-men and snipers firing from mosques or hospitals is a strictly speaking contravention of the treaty. Yes, it does use the term “adversary”, but it doesn’t necessarily I think apply to soldiers in the act of committing numerous war-crimes simultaneously. On the other hand, as I mentioned earlier, I’m fairly certain that this (not accepting surrender) is not necessarily a wise rule of engagement anthropologically speaking. The point is to find a tactic that will make it the least likely for the enemy to seek to fight illegally.
- Question, would this
A mercenary shall not have the right to be a combatant or a prisoner of war.
describe the foreign nationals. By Convention, then, they are not “allowed” any rights it seems at least by this Convention.