Thursday, May 13, 2004

No problem

I have no problem with "harsh methods" of interrogating Al-Qaeda members. So the NY Times story does not faze me in the least. There's a difference between routinized abuse of Iraqi prisoners and intensive interrogation of terrorists. Prisoners likely have rights under the Geneva Convention (although this is potentially questionable); Al-Qaeda detainees are terrorists and, even under the Geneva Convention, can be shot on sight.

Here's Article 4 of the Geneva Convention on the Treatment of Prisoners of War (full convention at this link):

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Some background on the Geneva Convention issues from Peter Robinson, former aide to Pres. Reagan, from The Corner on National Review. Robinson posted this late Monday, May 10.

Regarding POWs and the Geneva Convention, I received a couple of emails today accusing me of quoting the Convention, in my posting, below, in an intentionally misleading manner.

. . . let me post a reply by John Yoo, one of the nation’s leading scholars on the law of war. Now a professor at Boalt Hall, the law school at U.C. Berkeley, John spent the first couple years of the Bush administration in the Department of Justice. John writes:

There is a lot of commentary that makes clear that to be a member of an "armed force" under 4(a)(1) or 4(a)(3), you must still meet the four criteria in 4(a)(2). The idea of 4(a)(2) was to give irregular forces, such as militias, POW treatment if they conducted themselves according to the standards of normal armed forces, hence the listing of the four criteria. This has been the historical understanding from before even the Geneva Conventions.

Also, an alternate reading makes no sense, because it would allow units of an armed force to systematically engage in the most outrageous, brutal war crimes, to fight by hiding among civilians, to not wear uniforms, etc., etc., and still retain their POW status while militias and volunteer corp had to fight according to a higher standard. Makes no sense because the Geneva Conventions were trying to encourage these irregular forces to operate according to the higher, "armed force" standard by promising POW treatment in exchange..

Anyone who would like to pursue John’s thinking at greater length (and savor the pleasures of truly lucid legal writing) can take a look at John’s comprehensive treatment of POWs and the Geneva Convention in the Virginia Journal of International Law.

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