wrote:
Note crossposting.

Mr Daneliuk seems to have me confused with another
author. Regardless:

???


OP stated that 'terrorists' are not protected by the Geneva
Conventions. I pointed out that _prisoners_ of a nation
other than their own, are always protected persons, though
that status does not preclude trial and punishment for crimes
comitted prior to their capture, such as fighting in civilian
disguise.

I cited the fourth article of the Fourth protocol of the 1949
Conventions and said that in the quoted text "the convention"
refers to the 1949 Convention in its entirety, not to any specific
protocol thereof. Mr Daneliuk disagreed as indicated below.
Upon review, I am less than certain as to whether the terms
"convention" and "protocol" are used synonymously. But
I remain convinced that the applicablity of the 1949 GCs
is not predjudiced by calling a prisoner a 'terrorist' even
if the appelation is justified by fact.

I don't think anyone claimed that the word "terrorist" somehow
changes the law. I think the claim was (and is) that a person
making war in civilian clothing loses their status as a civilian
(aka non-combatant) and thus the protections that go with it.
They also have no status as a "soldier" because they are not
wearing an identifiable uniform. They thus have little or no
standing under the GC because they are not named as one of
specific classes of those protected.


Tim Daneliuk wrote:
wrote:
SNIP
From the Fourth Protocol, 1949:

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.

Sorry Sparky, the 4th Protocol is specifically authored for *civilians*.
A person engaging in combat while dressed in civilian garb - i.e., No
distinguishable uniform is NO LONGER A CIVILIAN, and thus not protected
by this Geneva agreement. That's why we can legally hang spies, incarcerate
them without normal due process, and generally do (almost) anything
we want to them. The Geneva conventions (last I read them - perhaps
Barbara Streisand or Rosie O'Donnell have updated them with their
considerable intellectual abilities) make a clear distinction between
combatants/non-combatants/civilians. Too bad all the Lefties today
can't do the same thing ...
--

Mr Daneliuk is encouraged to cite the artilces in the GCs where he
read the "clear distinction between
combatants/non-combatants/civilians.
Regardless, there is no place in the GCs where a statement, let alone
a clear one, is made that any of the three are not protected persons,
by virtue of being one or more of the three.

While it is also true that the title of the Fourth Protocol refers
specifically
to civlilians, many clauses within the Fourth protocol refer to members

of the armed forces. So the notion that the "any person" as used in
the
Fourth protocol excludes persons who fail to conform to Mr Daneliuk's
definition of civlian, is because of that reference in the title, is
without
merit.

While terms of art such as "spy" and "sabotuer" may seem quaint
to our Attorney General the modern term 'terrorist' was not in vogue
in 1949. The defintions, however do not differ substantively. They
are all persons, who engage in hostilities while not in uniform. There
appears no reasonable basis to claim that the Fourth Protocol
provisions for spies and sabotuers are not as applicable to
'terrorists'.

Let's take the simplest possible path here. The *title*
of the GC in question:

Convention (IV) relative to the Protection of *Civilian*
Persons in Time of War. Geneva, 12 August 1949. (Emphasis
mine).

Please explain to the class how one can take up
arms and still be a "civilian"?

You want to presume the convention affirmatively - that
by default, anyone not named explicitly is covered.
I presume it negatively - you don't have standing unless
named in a specific class.


The ICRC discusses these issues and others, concluding:

http://www.icrc.org/ihl.nsf/COM/380-600007?OpenDocument

In short, all the particular cases we have just been
considering confirm a general principle which is embodied
in all four Geneva Conventions of 1949. Every person in
enemy hands must have some status under international
law: he is either a prisoner of war and, as such, covered
by the Third Convention, a civilian covered by the Fourth
Convention, or again, a member of the medical personnel
of the armed forces who is covered by the First Convention.
There is no ' intermediate status'; nobody in enemy hands
can be outside the law. We feel that that is a satisfactory
solution -- not only satisfying to the mind, but also, and
above all, satisfactory from the humanitarian point of view.


Regarding

That's why we can legally hang spies, incarcerate
them without normal due process, and generally do
(almost) anything we want to them.

My first criticism is with the fundamental illogic of the
notion. It is the contrapositive of a circular argument.

Unless a person receives due process it can never
be known whether or not that person was entitled
to due process in the first place. Thus due process
can never be denied without the attendent risk that
it is being denied to one who is entitled to it.

It is clearly impossible to treat someone as a "spy" until we know they
are one. Some "process" is obviously required to do so. But you and
yours want the "due" part of that to extend well beyond even the
language of the GC.

Notwithstanding that, you go through all kinds of mental contortion to
demand that a person who is not: a) A uniformed combatant, b) A
non-combatant civilian, c) A diplomat, or d) A non-participating member
of another nation (all subjects of the GCs *by name*) should also be
covered. Don't you suppose that if the writers of the GCs - who took the
time to name these particular classes of individuals - had wanted to
provide specific protection for saboteurs, spies, terrorists, et al they
would have managed to also make *specific* reference to them as well?



Regarding the specific atrocities advocated above,
execution of spies without due process has been
contrary to the laws of war since at least the Hague
Conventions early in the 20th Century, and prohibitted
in the United States by implication of an Act of
the Contintental Congress since the 18th Century.
"Almost anything else" Mr Daneliuk might wish
to advocate is prohibitted by criminal statues that
do not include as a defense, a belief that the
victim was a spy, 'terrorist' or whomever.

You are inventing an argument I did not make. I never said there should
be no "due process". Indeed I think there should be - it's called a
military tribunal. But I see no reason legally or morally to extend the
protections of our domestic legal/social contract nor the protections of
the GCs (wherein such people are not named, but every other class of
protected individual is) to such individuals.


The United States does not permit outlawry,
even for convicted crimnals.

Finally, the 1949 Geneva Conventions are not the
only treaties to which the US is signatory.
The Convention against Torture etc, permits no
exceptions.

Ah, the Dancing Left is back. Every sane and reasonable person should be
opposed to "torture". But the debate at hand is whether scaring people,
intimidating them, making them uncomfortable, depriving them of sleep
constitutes "torture". You know this is the debate but insist in writing
as if your debating opponents just blindly support any and all forms of torture
ignoring that there are degrees of coercion, not all of which are widely
accepted as being "torture". You also conveniently ignore that the
subjects of said intimidation are not party to our legal/social contract
and have no standing to make claims against it.


In summary, my argument that all prisoners
captured in the course or armed conflict or
occupation by the United States and who are
not US citizens are from the moment of their
capture forward, protected persons according
to the 1949 Geneva Conventions is supported
by a plain reading of the Conventions themselves
and by the interpretations by the ICRC and USSC.

I don't see it that way. But if, in fact, you're right then you
and your fellow Left travelers have an excellent case to make
for bringing war crimes charges against this administration.
For all the whining on the Left (and all the stupidities on
the Right), I somehow don't think this is going to happen.
Why? Because, rhetoric aside, you know there is no such case
to be made. You know that the disposition of non-uniformed
combatants is not as cut and dried as you'd like to paint it.

--
----------------------------------------------------------------------------
Tim Daneliuk
PGP Key: http://www.tundraware.com/PGP/