Why Denying Terrorists POW Status is to Respect the Geneva Conventions
Why is it, that the impression the media leaves me with, is that Hamdan is "just a driver" and a victim of circumstances? Just another tragic pawn and casualty in the illegal and immoral war instigated by the imperialistic, oil-grubbing, human-rights/U.S. Constitution-violating Bush regime?
Well, he's been found guilty of supporting terrorism, but acquitted on charges of conspiracy to commit acts of terror.
Jonathan Mahler writing last Sunday for the NYTimes Magazine:
The men in the dock might very well be war criminals, the argument goes, but what about the policy makers and interrogators who violated their rights under the Geneva Conventions?The perception pushed by so many on the anti-Bush side of the argument, is that the detainees held at Guantanamo deserve protection under the provisions provided by the Geneva Convention; and that subsequently, because the Administration had long argued against classifying enemy combatants captured on the Afghanistan battlefield- al Qaeda and Taliban fighters- as having "prisoner of war" status, protected by the 1949 codification of the laws of war (until July 7, 2006, after a Supreme Court ruling), that Bush & Co somehow do not respect the Geneva Convention. The reality, however, is just the opposite. It's for the same reason that President Reagan decided not to ratify Protocol I, declaring that it, "would undermine humanitarian law and endanger civilians in war."
Douglas Feith, called the Geneva Conventions as "a high-water mark of civilization". He absolutely supports it, even as he denies its provisions to be extended to non-uniformed combatants who endanger civilians by blending in, and being indistinguishable from civilians, putting innocent lives at risk. To grant them the same legal rights as prisoners of war, grants terrorism legitimacy.
From Douglas Feith's War and Decision, pg 163,
It would be "highly dangerous if countries make application of Convention hinge on subjective or moral judgments as to the quality or decency of the enemy's government"- and it would be dangerous, therefore, to claim that the Convention does not apply because the Taliban are "the illegitimate government of a 'failed state.' " Countries typically view their enemies as gangs of criminals. If officials had to certify an enemy as a "legitimate government" to apply the Convention, few countries would ever do so.
"I contended that a "pro-Convention" position, on the other hand, would reinforce U.S. moral arguments in the war on terrorism:
- The essence of the Convention is the distinction between soldiers and civilians (i.e., between combatants and noncombatants).
- Terrorists are reprehensible precisely because they negate that distinction, by purposefully targeting civilians.
- The Convention aims to protect civilians by requiring soldiers to wear uniforms and otherwise distinguish themselves from civilians.
- The Convention creates an incentive system for good behavior. The key incentive is that soldiers who play by the rules get POW status if they are captured.
From Douglas Feith's War and Decision, pg 38:
The Convention gave maximum protection to noncombatants- innocent bystanders- and gave the next level of protection to fighters who obey the laws of war. The least protection was given to fighters who did not obey the rules. In this regard, as in many others, the Geneva Conventions were humane and sensible: The Conventions' drafters in the late 1940s had their priorities right. The Convention created an incentive system to encourage respect for the laws of war and especially to safeguard innocent bystanders. Civilians are endangered when fighters wear civilian clothes, for example, because that makes the fighters indistinguishable from bystanders. So the Conventions provided that captured fighters were entitled to the privileged status of "prisoners of war" only if they met certain conditions, including wearing uniforms and carrying their arms openly. The national liberation groups, whose fighters did not obey those laws, protested that the Geneva Conventions should be amended to entitle their fighters to POW status even if they concealed their status as fighters.Philippe Sands, author of Torture Team: Rumsfeld’s Memo and the Betrayal of American Values, dismisses the relevancy of whether or not terrorists be granted POW status rights:
In his introductory statement at the hearing on July 15, Mr. Feith devoted a great deal of attention to the issue of P.O.W. status under Geneva. This is not a relevant issue: The rules reflected in Common Article 3 of the Geneva Conventions prohibit inhumane treatment and establish a distinct, minimum standard of protection for all detainees, not just those with P.O.W. status. Specifically, these rules prohibit a number of acts for detainees “at any time and in any place whatsoever,” including “violence to life and person,” “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” These protections are not dependent upon the detainee having P.O.W. status and, as the official commentary to Geneva makes clear, the scope of Common Article 3 “must be as wide as possible.” Judgments of the International Court of Justice and international criminal tribunals have long held that the rules reflected in Common Article 3 “constitute a minimum yardstick” for all armed conflicts.Furthermore, Sands argues that Feith does not believe Common Article 3 should apply to Guantanamo detainees.
I have not been able to identify any document that reflects Mr. Feith’s “receptivity” to Common Article 3.Well....obviously, Sands didn't choose fit to shell out pound notes to purchase Feith's War and Decision. Pg 163:
I recommend that our government stress "[h]umane treatment for all detainees," and that al Qaida as well as Taliban personnel should receive the treatment they are entitled to under the Convention- or that they would be entitled to, if the Convention governed our conflict with them.There's more in the book. Anyone, left or right, interested in serious historical scholarship, should pick up Feith's book; even if it's for nothing more than to argue against the policies of the Bush Administration, at least you'll be better informed in sharpening your criticism.
As none of the detainees qualified legally for prisoner-of-war status, I believed that humane treatment was the proper standard for all of them- whether or not they had been captured in a war governed by the Convention. Even if the President were unwilling to conclude that the Convention governed our fight against the Taliban, I recommended that he make the following declaration: Although U.S. officials have not yet resolved the question of whether we are legally required to do so, the United States would give all detainees the status that they would be entitled to under the Convention- in other words, humane treatment.
Cross-posted at Flopping Aces
Previous related FA posts of interest:
Andy McCarthy - Congress Must Act To Fix Boumediene