Guantanamo Bay

Legal or Illegal

Published on February 12, 2004 By Solitair In Politics

I had heard much defense of the US position on Guantanamo Bay and am very surprised at people's belief that it's legal. Based on Brad's suggestion, I've decied to post a new article where this can be discussed.

The usual arguement made against it is that it breaks the Geneva convention. In particular Article 4 which reads,

As many people point out, this articles does not entitle those held in Guantanamo Bay to POW status as most of them fail to meet all the requirements. What people seem to ignore is that in 1979 there was an additional protocol (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)) added. Under sectino 45 of this protocol is a very important section which I post below.

Article 45.-Protection of persons who have taken part in hostilities
1. A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.

2. If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated. Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offence. The representatives of the Protecting Power shall be entitled to attend the proceedings in which that question is adjudicated, unless, exceptionally, the proceedings are held in camera in the interest of State security. In such a case the detaining Power shall advise the Protecting Power accordingly.

3. Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, an such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.

Now let me post article 75, which is the worst case protection an inmate at Guantanamo Bay can expect (assuming they refuse to claim POW status or loose such a legal argument)

Article 75.-Fundamental guarantees
1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:

(a) Violence to the life, health, or physical or mental well-being of persons, in particular:

(i) Murder;

(ii) Torture of all kinds, whether physical or mental;

( iii ) Corporal punishment ; and

(iv) Mutilation;

(

Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;

(c) The taking of hostages;

(d) Collective punishments; and

(e) Threats to commit any of the foregoing acts.

3. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:

(a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;

(

No one shall be convicted of an offence except on the basis of individual penal responsibility;

(c) No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;

(d) Anyone charged with an offence is presumed innocent until proved guilt according to law;

(e) Anyone charged with an offence shall have the right to be tried in his presence;

(f) No one shall be compelled to testify against himself or to confess guilt;

(g) Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(h) No one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;

(i) Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and

(i) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.

5. Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women. Nevertheless, in cases

where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.

6. Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this Article until their final release, repatriation or re-establishment, even after the end of the armed conflict.

7. In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply:

(a) Persons who are accused of such crimes should be submitted for the purpose of prosecution and trial in accordance with the applicable rules of international law; and

(

Any such persons who do not benefit from more favourable treatment under the Conventions or this Protocol shall be accorded the treatment provided by this Article, whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol.

8. No provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.

I eagerly await to hear how anyone can claim Guantanamo Bay is legal when the US is a signatory to the above articles.

Paul.

Comments (Page 1)

Draginol

on Feb 12, 2004

You make a pretty compelling case. I'm not familiar enough with this issue to debate it at this level.

Plus, ultimately, I guess you could say I don't care very much whether it violates the geneva convention or not. I mean I "care", I just don't CARE care.

Hopefully someone more knowledegeable than myself will be able to provide you with a satisfactory response - either say "Yes, it looks like it's illegal" or "No, it's not illegal because of X, Y, and Z."

Solitair

on Feb 13, 2004

Thanks for the response,

considering all the debates over the past few months on this topic, and the highjacking of other debates by this issue, it's reached a certain 'not again' status.

The issue will eventually be settled by the US supreme court though and no amount of foreign poressure and condemnation will ever change that.

Paul.

EMacy

on Feb 13, 2004

But there are many trying to_ Just beacuse it's hushed up or swept under the carpet in US doesn't mean the rest of the Non America world have forgotten this abhorration of injustice. They all shout " sorvereignty" yet trample over other countries laws, with no regard for their law systems. Plucked off the street. The implications are very disturbing. Kangaroo justice. This treat ment of men and children defies human rights and justice, it is degrading and shall only create more anger that will be directed at the US in generations to come.
Imagine how it must feel to be innocent yet held for over 18 months, with no hope of release, how must the families be coping without the primary breadwinner?
Why isn't Saddam there then? And which president will be the one to have to apologize for this miscarriage of justice?
For things like this_I hate America.

EMacy

on Feb 13, 2004

I can't spell .

Solitair

on Feb 13, 2004

The real question is innocent of what?

I would assume that most people detained there were captured in compormising positions or locations. Many of them are no doubt terrorists. Unfortunately the lack of transparency and illegal nature of their incarceration may make it impossible to actually covict them at a later stage. Even worse is that they will then be able to sue the US government in US courts and walk away with large lump sums of US tax payers money. Who then will stand up and take responsibility for the mess?

Paul.

xr700

on Feb 13, 2004

I'm really sick of people hating America. Yeah, we've messed up, but not as badly as Europe. Hell, they let Hitler take back the Rhineland without so much as a peep, and let him build up his army without doing a damned thing about it. Now, however, people are content to sit back and blame everything on America. It seems like we're damned if we do, and we're damned if we don't.

Sherye Hanson

on Feb 13, 2004

If the people detained at Guantanamo Bay are terrorists, then evidence should be brought against them and they should be tried in court. By hiding them, the United States government is ruining our reputation. How can we expect other countries to respect us when we don't practice what we preach.

During the Civil War, Lincoln did similar things and worse, his rational was that he was preserving the union but his actions won little favor with opponents to the war and with Southerner who ultimately rejoined the union. Our enemy today may be an ally later. Fair treatment results in good feelings about us later one. Compare Germany after World War I to Germany after World War II

jeblackstar

on Feb 13, 2004

Hell, they let Hitler take back the Rhineland without so much as a peep

Americans attended that confrence too.

Solitair

on Feb 13, 2004

xr700,
you're right to be sick of people hating American's but as mentioned by others, America needs to stop giving people reasons to hate them. Guantanamo Bay was a mistake and the sooner America deals with that mistake the better. It doesn't help it's cause that countries like Iran (with poor human right records) can point to this case and say 'why should we care for human rights when the US doesn't'.

The idea of taking the terrorists away from Afganistan was good. The failing to treat them as either pow's or as criminals is the problem. It lets family, relations and countrymen back home rightly feel anger towards the US and this anger can turn to hatred. When they eventually are released they'll be wrongly treated as martyers and have the legal right (within US courts) to sue. That is a said thing.

Paul.

PoetPhilosopher

on Feb 13, 2004

Illegal - don't know.

Immoral - No question. It is immoral.

Draginol

on Feb 13, 2004

Sherye Hanson - did Germans captured in World War II -- hundreds of thousands -- get trials.

Who's going to pay for these elaborate trials? You? The people at Guantanamo were captured largely in battle.

In the discussion in which this was brought up, what annoyed me wasn't the geneva convention issue, what annoyed me was having my discussion hijacked into an area unrelated to the post along with trying to compare the detainees in Guantanamo Bay with prisons in Iraq built exclusively for small (i.e. <10 years old) children.

I tend to take the view of "Tough." when it comes to international complaints about US behavior. If Canada or Europeans are truly serious about their views, then they need to insist that their countries take sanctions against the United States or something. That would show taht they were serious. Otherwise, it's just a bunch of bitching by the same people who wanted to appease Saddam.

j swift

on Feb 13, 2004

Conventions and Treaties are agreements between sovereign nations. In others words they are akin to contracts.

Individuals and businesses can breach contracts. It is just not a good idea. There may be instances where to continue to abide by an agreement would cost you more than to breach it and take your lumps.

Otherwise the morality of Gitmo and what goes on there is more a matter of how you define terrorism. How you classify someone you say is a terrorist. What steps you take to determine and pass judgment on that classification (due process).

Last I heard, since Sadaam was a head of a sovereign nation and its military commander he is a POW.

Draginol

on Feb 13, 2004

Yep, Saddam is a POW in the same sense that leaders of the German government were POWs at the end of World War II.

I'll say it again: If Europeans and Canadians are truly convinced the US is doing something horrific, then they should, as democratic nations, insist their governments impose sanctions on the United States.

Muggaz

on Feb 13, 2004

I wish the rest of the world was in a position to put ecomomic sanctions on the US, but you and i both know the whole world needs the economic powerhouse that is the US to assist with their own pitiful economies.

It's all good that our people can whinge or whatever about USA doing this, or USA doing that, the simple fact is, that money makes the world go round, and every western governement will do everything in their power to appease the USA so they dont get ostracised.

And Brad, really, would USA care if anyone imposed sanctions on them? I dont think so.

Xr700... do you think people are born hating America? its for a reason... we dont want to hate you... but you guys have a tendancy to rub people up the wrong way... also, quit living in the past, we are all familiar with the mistakes in Europe and the Middle East made by people that aren't America.

xr700

on Feb 13, 2004

Yeah, I realize that America was at the conference when Hitler was starting to take over countries, but it wasn't our problem. We were trying to let Europe solve their own freakin problems, and they obviously failed.

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