I think we're digressing here a little bit from the original point of the thread. That is context is essential to all communication. This is just as important in colloquial speech as it pertains to interpretation of Holy Writ. Taking quotes wholly out of context, I could posit the sophistry that Jesus claimed "Whatever you do, you should kill yourself, and quickly." That's just plainly absurd, but it is demonstrative of the point made originally by Avon Lady.
Now, to follow up respecting my commentary, and to address some of the concerns posted in response to it, frankly, in my opinion, they're lucky they haven't been put before a tribunal, convicted, and taken out and shot. Which we could do, perfectly legally.
You see, the thing about the Geneva Conventions, is that the Soviets were one of the negotiating parties. And the Soviets, being a commie dictatorship and all, didn't want to be bound by a bunch of niggling little rules about who could shoot whom for war crimes, tricky evidentiary proceedings, or any of that. Nor, were they really interested in addressing protections for people who weren't combatants. I mean, they were thinking they'd be rolling into Düsseldorf one day, and they wanted to be sure that they could solve any little problems with partisans in an...uh...efficient manner.
What the Reds wanted, and essentially got, was a treaty that gave governments the power to run their military tribunals as they saw fit, and execute pretty much anybody they wanted to, except POWs who were clearly part of an organized military force. And they could even execute them if they could--and the Sovs always could--cobble up enough evidence to convict them of war crimes.
As Alberto Gonzales discovered, these are not just legal issues, but are international law. They are in fact rules for the proper and legal conduct of war, agreed to by civilized nations, that assumed wars would be fought between armies whose soldiers would respect these rules.
In America, serial murderers Ted Bundy and John Wayne Gacy were accorded constitutional protections, not only against abuse, but against self-incrimination. Both received trial by jury. Both were guaranteed a taxpayer-subsidized legal defense.
However, and that notwithstanding, is it prudent to apply the protections of the Geneva rules, or civil criminal law to an enemy that fights by the Maoist rules of "people's war", which condone terror and murder, and encourage guerrillas to fight out of uniform and kill the enemy anywhere, any time, any way?
Convention III Art. 4 does have provision for covering militias, but to be recognized by the treaty they have to meet a couple basic requirements: wearing uniforms, having a clear line of command, and respecting "the laws and customs of war."
Convention I & II Art. 13(3); Convention III, Art. 4A(3) have provisions that seems as if it might be capacious enough to include terrorists: "Members of regular armed forces who profess allegiance to a government or authority not recognized by the Detaining Power." This is the closest call, but it isn't just the U.S. — the detaining power — that fails to recognize the Taliban, but the entire international community as embodied by the United Nations. According to the U.N., the Taliban was basically an armed gang that happened to occupy most of Afghanistan for five years or so. What critics are asking for is that in defiance of the U.N. and world opinion the U.S. now retroactively recognize Taliban, Hezbolah, Al Queda, et ali as legitimate governments. Very weird.
Convention IV Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
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Nevertheless, and that notwithstanding, Under the auspices of the Geneva Conventions, soldiers who fight out of uniform or commit atrocities i.e., murder prisoners or target and kill noncombatants may be sent before firing squads (summary executions). There is a tradition in war to have disguised combatants dealt with summarily, such as spies or those who steal uniforms (considered a violation of the articles of war).
During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal. In warfare, a reprisal is a limited and deliberate violation of the laws of war to punish an enemy for breaking the laws of war. A legally executed reprisal is not an atrocity. To be legally justified, a reprisal can only be directed against the party carrying out the original violation, can only be carried out as a last resort, after having given formal notice of the planned reprisal, must be proportionate to the original violation, must have the aim of persuading the original violator to comply with the legally accepted behaviour in future, and must not continue after the illegal behaviour ends. In the United States military, the lowest ranked commander who can authorize a reprisal is a general in command of a theater. Spies and terrorists may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution.
Soldiers who break specific provisions of the laws of war lose the protections and status afforded as prisoners of war but only after facing a "competent tribunal" (GC III Art 5). At that point they become an unlawful combatant but they must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV Art 5. For example in 1976 foreign soldiers fighting for FNLA were captured by the MPLA in the civil war that broke out when Angola gained independence from Portugal in 1975. After "a regularly constituted court" found them guilty of being mercenaries, three Britons and an American were shot by a firing squad on July 10, 1976. Nine others were imprisoned for terms of 16 to 30 years.
In a 1942 United States Supreme Court decision in the case
ex parte Quirin, the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs in the US was upheld.
"...the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."
These seven saboteurs where summarily executed after a secret trial. Mind you, not one of these seven detonated a single bomb, and not one single American received so much as a paper cut. And yet, they were summarily snuffed.
the British Army faced in Ireland from 1919 to 1921 IRA "flying squads of gunmen", attacking British troops, and then melting away into a supportive population. British veterans of the Western Front, not knowing how to find and fight such an enemy, engaged in reprisals against Irish civilians. Britain as a result lost the Irish people, and Ireland, forever.
In Algeria from 1954 to 1962 terror attacks on French soldiers and civilians brought in Gen. Massu's "paras" who tortured terror suspects for information to eradicate the FLN. Thus was the Battle of Algiers won and Algeria lost.
Indeed, there should be some administrative procedure to confirm that the right guys are in custody, and not that some random Tora Bora pizza boy or farmer has been picked up. But
we have the discretion to decide what that procedure should be without adhering to any Geneva Convention mandate, and the point of this procedure is trying to avoid a simple mistake rather than deciding whether the Convention applies or not to each detainee (again, which is a matter of high state policy).
Once its agreed that detainees are "unlawful combatants," then what? We would be perfectly under our rights to keep them detained for as long as we please. And furthermore, they can be held incommunicado. But we will probably have to have trials, under the military tribunals.
Get out your Latin. They might be tried under two broad categories:
- Jus in Bello — essentially for the way they conducted their war, their targeting choices, including attacking civilians and military targets without warrant.
- Jus ad Bellum — the basic fact of their unlawful aggression (this would echo the first two counts against the Nazis at Nuremberg — conspiracy to wage aggressive war, and waging aggressive war).
After a conflict has ended, persons who have committed or ordered any breach of the laws of war, especially atrocities, may be held individually accountable for war crimes through process of law. Also, nations which signed the Geneva Conventions are
required to search for, then try and punish, anyone who has committed or ordered certain "grave breaches" of the laws of war. (see GC III, Art. 129 and Art. 130).
I opened up with comments about the origin of the Geneva Conventions in 1949. Well, the USSR pretty much got the treaty it wanted,
and that's the one everybody signed. So, if you want to get all syrupy and soggy-eyed over detainees accused of terrorism, you need to look elsewhere than the Geneva Conventions for an argument. Because the Geneva Conventions essentially say we can bump them off anytime we can get three Army officers to say it's OK. And let me tell you another thing: we aren't going to be "searching" for any of these clowns when the War on Terror is over; we already know where they are. Then they'll get their fair day in court. Until then, they can pound sand or suck eggs (which ever).