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The Forum > Article Comments > Why the US in Guantanamo is subject to the Geneva Conventions > Comments

Why the US in Guantanamo is subject to the Geneva Conventions : Comments

By Jean-Jacques Bovay, published 29/12/2004

Jean-Jacques Bovay responds to Ted Lapkin's comments on the Geneva Convention and detention of prisoners of war

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Jean-Jacques Bovay needs to have reference to Article 5 of the Fourth Geneva Convention before suggesting that: "A detainee who fails to meet the criteria for POW status does not thereby forfeit all rights under the III Geneva Convention. In fact, such persons may still be covered by the rules applicable to civilians under the IV Convention."

Article 5 defers the detainee's rights until: "the earliest date consistent with the security of the State or Occupying Power", and its opening paragraph states:

"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."

An Al-Qaeda operative has no rights as a protected civlian for so long as the security threat continues.
Seems like Mr Lapkin is correct after all.
Posted by intlaw, Wednesday, 29 December 2004 12:52:11 PM
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intlaw missed this bit :
"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."

Ted Lapkin supports a regime that has no regard for int'l law, particularly the IV Geneva Convention.
Posted by Bobo, Wednesday, 29 December 2004 5:15:38 PM
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Bobo. Not even Mr Lapkin denies the right to a fair trial, but under the terms of the Convention itself the "rights of fair and regular trial" are deferred while the security threat continues.
Posted by intlaw, Thursday, 30 December 2004 10:13:00 AM
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Both of these articles are laughable, in so many ways.

i. The US and UK never declared war on Afghanistan, so the rules of war between two states do not apply. Operation Enduring Freedom has specific aims of capturing Osama Bin Laden, dismantling the terrorist apparatus with Afghanstan and removing the Taleban. Support for the Northern Alliance furthered this aim.

ii. Al-queda is not protected by the Geneva convention because it has no relevance to them. They don't bear arms openly, they don't wear recognisable symbols, they don't have an accountable figure, etc etc.

iii. The paragraph about a 'downspiral' of violations is absurd. Do you think suicide bombers give a monkeys about people in Guantanamo Bay? Or the Geneva conventions in general? Do you think law really matters to people who think they are going to heaven?

Get real people. We are dealing with a new threat, and a new type of enemy - the old rules are simply not sufficient. Did respect for the Geneva conventions stop 9/11? or Bali? People in G'mo Bay are there because they are terrorist fanatics of the most dangerous kind. They cannot be easily processed by normal systems, becuase they do not operate within any kind of normal legal system.

We have to adapt. I think the US is trying to do that at the moment. A better question is 'Are the Geneva Conventions totally relevant today?', and the answer is probably not.
Posted by gw, Thursday, 30 December 2004 1:58:18 PM
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It concerns me that so many people are willing to abrogate our highest principles because of a sense of lack of 'fair play' by the other side. The comments about 'getting real' etc about this new and unique threat are nothing but a throw away line without any real historical substance to back them up. This is not a new and unique threat! It is merely a threat that is now turned against the West. I accept that the scale of 9/11 hasnít eventuated before, but students of terrorism history will know that it has been planned before, but thwarted by good fortune rather than good planning. When significant terrorist incidents occurred in places other than the US in the last 30 years, there was no discussion of getting rid of the Geneva Conventions then!

One would argue that the GC's are more relevant today than at any time in history. What good is it when the first world foists the GC's upon the third world but then ignores them when expedient to do so. To those that suggest they are irrelevant, I say "get real". A world based on survival of the fittest or strongest was discarded by the West during the Reformation. Do we really wish to turn back time? Modernity is nothing without maturity of ideals.

As I mentioned in my reply to Ted Lapkinís article, if the laws on these matters do not cover the necessary conditions, write new ones. Why does this not happen? Because the US does not support an international legal system to which it would have to comply irrespective of expedience. What a wonderful example of the rule of law we provide to the developing world!! If this situation occurred totally within any first world legal system, the first thing that would happen is that new legislation would be drafted. It is really a matter of choice. Do we choose to make Human Rights a part of our legacy to the future, or not? That fundamental choice is really not conditional upon crying about who plays fair and who doesn't.
Posted by PeterinCanberra, Thursday, 30 December 2004 6:43:03 PM
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Peter,

I don't think it's a case of 'playing fair' or not. These people are desperate fanatics who have no regard for our laws in any way. Laws have no meaning for them, or function. Life has no meaning or function.

How do you create laws that deal with people who are literally prepared to blow themselves up? Jail, trials, all of these things have no meaning to them.

You have to have some perspective here. The prisoners at GB are not executed, hung without jury trial etc. In fact they recieve no worse treatment than have most irregular forces captured by opposing armies, and indeed a good deal better than, for example, German spies captured by the Brits during WW2. SO they are stuck in some internment camp? Simple answer - don't fly planes into buildings, don't execute prisoners, and don't believe killing people for religious purposes is right.

Peter, its nice to be free to have these arguments. However we are the people these terrorists laugh at the most, and certainly don't believe most of the third world respects or follows this attitude to murderous fanatics.
Posted by gw, Thursday, 30 December 2004 8:53:04 PM
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