Quote:
Originally Posted by Speleothem
It's simpler than that; he broke no laws.
|
You don't seem to be very well informed.
Here's an excerpt from a paper I wrote and presented for a working group representing the illegally held detainees at Guantánamo while working on my doctorate in International Relations (I'll highlight the pertinent parts):
The United States has consistently maintained that
habeas corpus does not apply to alien enemy combatants, and that the United States does not exercise sovereignty over U.S. Naval Station Guantánamo Bay, Cuba.
However, U.S. federal courts have held in Haitian Ctrs. Council, 823 F. Supp. at 1042, et al, that the two-year confinement of an alien at Guantánamo established substantial connection to the United States to give rise to due process rights.
The United States has additionally argued that the exigencies of the global “war on terror” outweigh all other considerations and that the defense of the nation is of prime importance. It has also adopted the position that terrorists are not only stateless, but that they are
persona non-gratis as well, and fall out-side the definitions of all international laws and treaties.
Overall, the approach taken by the United States continues to be nonsensical and unnecessary. As David Sloss pithily notes, it would be in the government’s best interest to classify Taliban detainees as POWs under the 3rd Geneva Convention and al-Qaeda detainees as “protected persons” under the 4th Geneva Convention. The United States could legally maintain the detainees in custody until the “cessation of active hostilities” for the former and the “close of hostilities” for the latter. In both instances, the United States would have tremendous leeway to make the determination as to when hostilities ended.
IV. ANALYSIS
4.1 HAS THE U.S. GRANTED ENEMY COMBATANTS IN THE WAR ON TERROR DETAINED IN CUBA FULL GUARANTEES OF HUMAN RIGHTS TREATIES AND THE GENEVA CONVENTIONS?
Torture and inhumane treatment of persons are peremptory norms and as such, cannot be derogated. The United States has failed to treat detainees in accordance with international treaties and customary law. The ban against torture is a customary law ingrained as
jus cogens.
Under jus cogens, criminal acts are subject to universal jurisdiction, regardless where the criminal act took place, or the nationalities of the perpetrator or victim.
4.2 THE UNITED STATES HAS FAILED TO COMPLY WITH CAT.
Articles 1 & 16 specifically prohibit torture and inhumane treatment. Furthermore, it plainly states that, “This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.” Moreover,
“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.”
Branch Memoranda on Status and Permissible Treatment of Detainees. The American Journal of International Law, Vol. 98, No. 4. (Oct., 2004), pp. 820-831.
Sloss, David L., Rasul v. Bush. 124 S.Ct. 2686, The American Journal of International Law, Vol. 98, No. 4. (Oct., 2004), pp. 788-798.
CAT art. 5, para.3
Ibid art 2, para. 2
4.3 THE UNITED STATES HAS FAILED TO COMPLY WITH THE 3RD AND 4TH GENEVA CONVENTIONS.
In the A-s-h-c-r-o-f-t Letter, the United States Attorney General outlined an argument proposing that the detainees be denied the protections of the treaty because Afghanistan was a “failed state.” This argument falls short because neither Afghanistan nor the Taliban were ever on the United States State Department list of Terrorist States, Terrorist-Sponsoring States, Terrorist Organizations or Terrorist Sponsoring Organizations. Furthermore, the United States repeatedly engaged in negotiations through July 1, 2001, with the Taliban on behalf of the UNOCAL Corporation to build the CentGas oil pipeline through Afghanistan. Thus, the United States clearly recognized the Taliban as the legal government of Afghanistan, rather than a “failed state.”
A-s-h-c-r-o-f-t ’s second line of reasoning is that Taliban detainees should be denied protections as “unlawful combatants.” This argument fails, because Article 5 of the 3rd Geneva Convention requires that all persons be afforded protections until such time as an evaluation by a competent authority to evaluate each individual detainee’s status. The United States failed to convene a prompt hearing to determine the status of each detainee for more than two years. Of particular importance is the distinction noted between “armed conflict” and “armed violence.” Where terrorism is concerned, humanitarian law does not apply to “armed violence.” However, “armed conflict” automatically invokes the protections of the Geneva Conventions.
Another issue involves the definitions of the two types of armed conflicts, international and internal. The conflict in Afghanistan ceased to be an international conflict on December 21, 2001, the day that Hamid Karzai became the leader of the interim government.
Since al-Qaeda is not a State, its members are automatically governed by Common Article 3.
* Sorry about that but the stupidity of City Data requires that I use hyphens for the attorney general's name.
4.4 THE UNITED STATES HAS FAILED TO COMPLY WITH THE ICCPR.
Although ICCPR provides limited derogations from certain rights under the convention, the Special Rapporteur noted that the
“United States has not notified any official derogation from ICCPR, as requested under article 4 (3) of the Covenant, or from any other international human rights treaty.” The ICCPR makes no distinction between “armed violence” and “armed conflict.”
It is in full force and effect at all times and specifically prohibits the derogation of certain articles regardless of circumstance, including the directive that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
See Official Statement of the International Committee of the Red Cross (ICRC) dated 21 July 2005 regarding “The relevance of IHL in the context of terrorism” (available at http://www.icrc.org/web/eng/siteeng0.nsf/html/terrorism-ihl-210705?OpenDocument>). Quoted in U.N. ESCOR, 62nd Session, Prov. Agenda Items 10 & 11, U. N. Doc. E/CN.4/2006/120 (2006) at p.29.
Sloss, David L., Rasul v. Bush. 124 S.Ct. 2686, The American Journal of International Law, Vol. 98, No. 4. (Oct., 2004), pp. 788-798.
U.N. ESCOR, 62nd Session, Prov. Agenda Items 10 & 11, U. N. Doc. E/CN.4/2006/120 (2006) at p.6.
ICCPR art. 4, para. 2
Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
