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.

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.

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.

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.

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 hasn’t 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 Lapkin’s 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.

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.

GW,

I agree that these people are beyond anything that we wish to have in our societies, and that we need to have vigilant and effective actions to counteract them. It is not a question of whether jails and trials have any effect on them, it is whether it has any effect on us. I firmly believe that in this life you cannot choose what other people do to you, you can only choose how you react to it. That is where we have the opportunity to separate ourselves from our medieval roots.

No, they are not hung or executed, but that is not the point. Neither is past precedent set by the Nazi's or anyone else. This is about choosing a society that we want to be, and then setting the example. Contrary to your statement, I believe that I have got perspective here. It is important to be able stand back from these arguments and consider what effect these decisions are going to have on the world we are going to be living in, in 100 years.

I abhor the concept of killing for religion and flying planes into buildings. The fact is that people have been killing each other in this world since day one, often in the name of religion. Incarcerating people indefinitely without trial will not stop people killing each other 100 years from now. A just international legal system may just reduce it.

First of all. Could I congratulate PeterinCanberra and Jean Jacques Bovay, for helping to keep John Howard and George Bush in power. The public knows who the targets for the Islamofascists are. It is us. It is our children, our skyscrapers and our train stations. If you think that anybody outside of the Chardonnay sucking, wine and cheese set could give a damn about the inmates in Cuba, you boys have been dropping too many eckies lately.

The more your mob cry over the fate of the poor boys in “Terrorists are Us”, the more you convince the electorate that you are living in fairyland.

Please, keep it up. John Howard needs you.

Now we get down to the basis of the argument. Al Qaida is not a “state”. Al Qaida fighters have no protection whatsoever under the Geneva Convention.

When it comes to Taliban fighters it gets more interesting.

Afghanistan is a “state”. But the Taliban government was considered so reprehensible that it’s legitimacy was recognised by only two other states. Pakistan (which created the Taliban) and Yemen. Similarly, the Taliban was not a signatory to the Geneva Convention. Those two facts alone may preclude Taliban fighters from Geneva Convention protections.

But for any fighter to claim Geneva Convention protections, they must abide by at least four categorisations. The most important of which is that the fighter must wear a uniform which clearly identifies him as a combatant. Flowing beards and white dishdashas hardly qualifies as a uniform.

The Taliban fighters in being held in Cuba will stay locked up until the war in Afghanistan is over. With US soldiers still battling Taliban fighters in the mountains of Afghanistan, the US has no obligation to release them. That complies with the Geneva Convention. The Al Qaida lowlifes will rot in Cuba forever, because The War on Terror has only just started and it’s end may never come about. That also complies with the Geneva COnvention.

As GW has pointed out, the legal systems of democratic countries can not hope to cope with the current crop of terrorists. Terrorist organisations like the Red Brigades in Italy or the Red Army Faction in Germany were handled entirely by national police forces. But these organisations had no more than a dozen or two adherents. But international terrorists, answerable to no state, well funded, well organised, well armed, numbering in the tens of thousands, and who are being directed in their attacks by people living in the most lawless and worthless areas of the planet, is unprecedented. Such organisations which are small armies, can not be countered by police forces and law courts.

One has to laugh at PeterinCanberra’s comment.

“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.”

It concerns me that some people will always put moral principles before the protection of their own people from very serious threat of very serious terrorist attacks. Has it ever entered your mind that what our governments are trying to achieve is the prevention of a nuclear, biological or chemical terrorist attack upon our cities? Measured against that fact, violating a few moral principles is small beer.

Then we get from PeterinCanberra.

“ 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.”

Could I point out to you that the Geneva Convention was once considered a pretty radical and unsupportable idea? The world is in a state of never ending change. We as a people have to constantly redefine what basic values we adhere to. There is nothing wrong with looking at a deeply held principle and redefining it when it gets outdated.

PeterinCanberra

“ This is not a new and unique threat!”

The idea that barely literate religious Jihadi’s, living in caves in Afghanistan, could mount terrorist attacks upon the civilians of the most advanced nations on Earth with nuclear, biological or chemical agents, because we will not bow to their God, most certainly is a new and unique threat.

PeterinCanberra

“It is merely a threat that is now turned against the West.”

So, who’s side are you on Peter? Who do you think is running this planet? The Third World? The Fourth World? Kim sung Il? Idi Amin? Pol Pot? Osama bin Laden? Saddam Hussein? Mugabe? Somebody has to make the rules. Third world dictators could not run a chook raffle at the local school fete.

PeterinCanberra

“ I accept that the scale of 9/11 hasn’t eventuated before, but students of terrorism history will know that it has been planned before, but thwarted by good fortune rather than good planning.”

Then you are admitting that the attacks by Al Qaida, supported by the Taliban, were unique. The Good Guys don’t intend to rely on luck in the future. And if the Bad Guys want to fight dirty, we will accommodate them. We won’t be as bad as they are, but when it comes to enemies who openly declare that our women and children are legitimate military targets, the gloves are off.

PeterinCanberra

“ 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!”

Nobody is demanding that the Geneva Convention should be gotten rid of. And your logic hardly justifies refusing to re examine the solutions to any problem with the passage of time.

Wow, if i'm not mistaken, you folks seem to have become so interested in finding "the enemy" that you are willing to fight anyone or anything that appears to stand in your opposition, whether it be on a human rights scale, or indeed, the boards of an opinion website.

While you don't agree 100% on every aspect of the issue, from what i can tell, you are all arguing that terrorism is a bad thing, and that this would make terrorists our enemies, despite the lack of an official political stance, or war declaration, yet you tear each other limb from limb for standing on opposite sides of a relatively miniscule fence.

This entire issue is very much in need of more specific debate, with such awesome generalisations as "Bad guys", "Good Guys", "third world facists" and of course, "humanity hating fanatics".

Take David Hicks, for example. While obviously not from the most highyl educated and well rounded of backgrounds, Hicks is not the satan spawn that some of our friends, (gw and redneck), may prefer to depict in their western supremist rants.

When the US, and by default, Australia, supported the Taliban's fight for power in Afghanistan, David Hicks joined the fray under the official banner of the Taliban, or, as we called them at the time, the "Good Guys".

Once the proverbial hit the fan at 9/11, this allegiance to fighting against the drug runners and criminals of the Northern Alliance left him on the wrong side of the fence, and he wound up in G'mo bay, without a shred of GC or basic legal rights to be found.

Surely, if this issue can be applied to one man, and his fight to at least defend his case prior to imprisonment and- as the case may be- torture, rather than after. Then perhaps we all need to rethink the exact issue that we are discussing, before we start leaping for the jugular.

But hey, feel free to shoot me down in a ball of flames, or even dismiss my observation as nonsense, i'm just trying to find some more arguments on abuse of transcultural law for my school english assignment.