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[Previous entry: "Schools of thought on warfare"] [Main Index] [Next entry: "Admin update 27-Mar"] 27 March 2003: "From Guantanamo to Nasiriya"
"Friedel Craft" added a comment to this thread, suggesting I take a look at "One rule for them" by George Monbiot. Time for a trip into the world of PoWs' rights and duties. 3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, heThe detainees on Cuba have been certainly been accorded the greater portion of the "protections equivalent to those accorded to prisoners of war." Inspections by the International Committee for the Red Cross did not find the detainess were being treated inhumanely. Insofar as the detainees have been exposed to "public curiosity" through the media, one must consider public reaction if the media were not granted access to Camps X-Ray and Delta. Camp Delta was screened off with green tarpaulin to shield the detainees from the prying eyes of tourists (the Cubans, and the tourists, evidently care little about the detainees' protection from public curiosity). Guards assigned to Camp X-Ray were transferred after inmates hit them. Certain observers were swift to jump on the photographs and video footage of the arriving detainees, shackled, hooded, and fitted with blacked-out goggles—the Mail on Sunday splashed one photograph over the front page with the headline "TORTURED"—but the restraint of prisoners during transport is legal, and in the case of members of an organisation noted for hijacking large aircraft and flying them into buildings, justifiably prudent. Once the detainees had been taken off the aircraft and processed, the shackles, hoods and goggles were removed. Initially, the detainees were held in cages "open to the elements." Open to the elements of Cuba. In January. After spending the winter in caves in the Afghan mountains, this is not exactly hardship. Nevertheless, the detainees lack one protection, and that is that of legal certainty; the US government is consciously holding them in legal limbo by keeping them at Guantanamo Bay, which is Cuban soil (leased by the US government). This may indeed be a loophole which the US government can exploit. However, as Article 5 of the Geneva Convention (III) relative to the Treatment of Prisoners of War (1949) states: Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.Given that dozens of wars have been fought since 1949, and the wording of Chapter III of the Convention, it should be noted that the term "competent tribunal" does not entail an operation like the IMT at Nuremberg, or the modern-day International Criminal Tribunals for the former Yugoslavia and Rwanda; it entails something along the lines of a court-martial. Yet even something this straightforward, the US government has failed to do. Why it has not is beyond me; how difficult would it have been to install one or more military courts at Baghram airbase to process the detainees? There is no possible basis to argue that the captured al-Qaeda members can lay claim to PoW status—PoWs are protected on the grounds that the state for which they fight bears the responsibility for their actions, and al-Qaeda is not a state—but due to this failure, the US government (and on this score Monbiot is correct) is in continued violation of Article 5 of the Convention. And while the US government's exploitation of the loophole that Guantanamo is not US soil may be legal (since it is not illegal), it does not, to put it mildly, square well with the administration's claim that it is striving to uphold the rule of law. It should, in all fairness, be pointed out that Colin Powell agitated for the detainees to be formally classified almost as soon as they started arriving; like the UN, the administration is not a monolith. The point regarding Article 5 was, however, the only point on which Monbiot was correct; the rest of the piece is tendentious rubbish. I understand that the procedure I am about to embark on is colloquially known as "fisking." [The US] may be waging an illegal war against a sovereign state; [...]Monbiot, predictably, does not bother to explain why the war is illegal; for my part, I have already set out here why it is no such thing. The [claim of "unlawful combatant" status] could be made, with rather more justice, by the Iraqis holding the US soldiers who illegally invaded their country.As I pointed out, PoWs are protected because they are agents of their state; even if the war were illegal, Coalition troops fulfil the necessary requirements of Article 4 of the Convention to qualify for PoW status. As an aside, it might be noted that the Iraqi references to Coalition troops as "mercenaries" are not merely rhetorical; Article 47 of the Protocol (I) states that A mercenary shall not have the right to be a combatant or a prisoner of war.In other words, the term "mercenary," as used by Iraq, seems to be an excuse to claim that Coalition troops have no right to the protections accorded PoWs. This position is untenable for two reasons. First, Article 47 explicitly states six conditions, all of which must be met before someone meets the definition of mercenary (it is almost superfluous to point out that US troops do not meet the definition). Second, Iraq is a State Party to the 1949 Geneva Conventions, but not to the Protocol (I). The rest of Monbiot's article is spent dropping allegations at the US armed forces' door regarding the "Convoy of Death" massacre in Afghanistan; that the massacre took place is beyond question (though the number of victims is not). To which extent US troops were involved in it is open to question indeed. Monbiot's source (the Guardian version omits the footnotes; they are included in this version) is a soi-disant documentary by Jamie Doran, which he cites as reference for this passage: The US special forces running the prison watched the bodies being unloaded. They instructed Dostum's men to "get rid of them before satellite pictures can be taken".Since it seems unlikely Doran was on hand at the time, this is presumably a reflection of a statement by someone interviewed in Doran's film; thus, it amounts to hearsay at best. Exactly how reliable Doran's "witnesses" are is evinced by the following passage: Doran interviewed a Northern Alliance soldier guarding the prison. "I was a witness when an American soldier broke one prisoner's neck. The Americans did whatever they wanted. We had no power to stop them." Another soldier alleged: "They took the prisoners outside and beat them up, and then returned them to the prison. But sometimes they were never returned, and they disappeared."Northern Alliance soldiers? These aren't witnesses, they're alternate (prime) suspects. (Apparently, a French police chief in Morocco in 1941 was shocked, shocked, to find out there was illegal gambling going on in some bar, which was�of course�run by an American; it's true, you know, I saw it in this old black-and-white documentary.) Of course, Monbiot skates over the reports of Iraqi troops feigning surrender, using a hospital as a staging area, and of course the fact that in the video footage* of the ambush site in which the personnel of the 507th Maintenance Company were captured, and the bodies—aired by al-Jazeera—several of those bodies appeared to have been shot in the head at close range�. No, anything must be better than being captured by the Americans. Certainly, there are things wrong about the detentions at Guantanamo Bay, but Monbiot is evidently incapable of making that point in a valid fashion. * - This stuff is kinda gruesome, folks. Sure, I've seen worse, but I worked for a war crimes tribunal for over three years. View entirely at your own discretion, okay? Oh, and the site in question deals mainly in porn, but frankly, if you think porn is more disgusting than a load of corpses, I reckon you've got your priorities screwed up. � - Check at 2:01 and 2:56 on the clip and you'll see what I mean. |
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