Newshoggers Comments
"Let's be small-c conservative and say that means 400 detainees have been released. How about a headline that reads "Over 90% of Released Gitmo Torture Victims Are Peaceful"?"
That's not quite correct to declare the detainees to be"peaceful". Some of them are former fighters who have accepted the terms of their parole by not returning to the battlefield. That makes them paroled ex-combatants, not peaceful.
Parole was the common practice prior to the formal establishment of the Hague Convention which began ratifying the procedures and rights of POWs. Armies before the 20th century simply did not have the means to care for large numbers of prisoners for extended periods of time and keeping them would bring increased chances of danger or disease in the rear. So, prisoners were paroled, with the understanding if they returned to the fight and were again captured, they would be hanged.
The real problem with Guantanamo was the refusal of the Bush administration to bring the detainees to a relatively speedy military trial to adjudicate their status and release them or try them for war crimes ( like fighting out of uniform, targeting civilians etc.).
The farmers, cooks, shepherds and other hick tribesmen could have been sent home with $ 20 and a new suit and the al Qaida hardcore could have been justifiably hanged.
Saying almost 10 percent of former detainees have been killed or re-captured in military situations is not the same as saying "Over 90% of Released Gitmo Torture Victims Are Peaceful." All you can strictly say is they haven't been re-captured.
It seems clear whrn you read the conventions that they were written for a different type of warfare than what the world now typically sees. But it also seems clear that the general notion of humane treatment has become universally accepted among civilized peoples.
You don't have to like the Bush administration or its choice of words to see that warfare is evolving faster than the internationalists are thinking about it -- the rise of private contractors on the U.S. side, for instance.
Zen, I'm not an expert on this, but wouldn't the appropriate trials have to take place in the jurisdiction where the crimes allegedly occurred? Do we really think a warlord or an al Qaida hotshot is going to get a good, fair trial in Paktia?
The problems here seem to call for some careful navigation, which both sides in the present American political alignment seem incapable of doing.
Good post. But ...
Er ... WHY is anyone accepting this report at face value? The AGE notes that it comes ENTIRELY from a US Military spokesman, e.g. The Pentagon. (Or did he just go "rogue"?)
I guess they have been entirely truthful with us about this "war" thus far, right?
A little reality check at the URL below:
http://blog.thedemocraticdaily.com/?p=6308
Adding that most of us on the left aren't calling for the immediate release of Gitmo detainees (or detainees held elsewhere). We're calling for some kind of legitimate due process to be conducted that can imprison or execute those worthy of such treatment, and release those who have not engaged in acts violating international law.
Is that so hard for the right to understand?
Callimachus,
There's lots of precedent for universal jurisdiction in cases of crimes against humanity - e.g. terrorism.
In fact, that's exactly what the International Court was set up to do. One option, if the US was a member, would be to ask that court for a ruling on whether detainees are POW's (US jurisdiction would apply, with the same rules as a court martial of any US soldier) or civilians (universal jurisdiction applies and a choice of US court or International Court). Unfortunately, Bush deciced to renege on Clinton's promise to join the International Court.
Regards, C
"Zen, I'm not an expert on this, but wouldn't the appropriate trials have to take place in the jurisdiction where the crimes allegedly occurred?"
Callimachus,
Excellent question! Putting on my long neglected diplomatic history cap....short answer is a resounding "NO".
Long answer:
1) Under International Law, the U.S. military may try captives under its sovereign rights as a belligerent in a state of armed conflict. At this time the UCMJ kicks in - not good if you are guilty. We can do this on the battlefield or at Leavenworth or wherever we have military bases.
2) The U.S. may turn such individuals over to trial to the recognized government of Afghanistan ( or wherever the country of origin may be)if that government deigns to accept them ( most do not). None existed at the time of our invasion of Afghanistan as the Taliban was not a recognized government but the Karzai regime is diplomatically legitimate.
3) Certain crimes, notably genocide under the Genocide Convention and Crimes against Humanity under the Nuremburg precedent, may be tried by *any* duly constituted court with a claim of competent jurisdiction. Not quite "universal jurisdiction" but damn close.
4) ICC Treaty signatories may under certain conditions, lay claim to trial of perpatrators if the home country signatory is unwilling or unable to administer justice (U.S. is not a signatory).
5) The UN may convene special Tribunals at the request of member states. IMHO, this means the accused will die of old age before the trial ends. Or even begins ( see Milosevic trial, Khmer Rouge trials..)
There may be a few other ways I have missed as I am not an IL attorney.
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