Monday, July 03, 2006

Mark Steyn doesn't like the rules

So, Mark Steyn says the Supreme Court found a "right to Jihad" in the constitution.
There are several ways to fight a war. On the one hand, you can put on a uniform, climb into a tank, rumble across a field and fire on the other fellows' tank. On the other, you can find a 12-year-old girl, persuade her to try on your new suicide-bomber belt and send her waddling off into the nearest pizza parlor.

The Geneva Conventions were designed to encourage the former and discourage the latter. The thinking behind them was that, if one had to have wars, it's best if they're fought by soldiers and armies. In return for having a rank and serial number and dressing the part, you'll be treated as a lawful combatant should you fall into the hands of the other side. There'll always be a bit of skulking around in street garb among civilian populations, but the idea was to ensure that it would not be rewarded --that there would, in fact, be a downside for going that route.
Of course, Jonah Goldberg loves it, so Steyn's got to be wrong. And he is.

You see, Steyn goes on and on writing about "High Contracting Parties" and what constitutes a full-on POW. He's got points, but he expressly avoids saying whether or not those in our custody in Gitmo and elsewhere have any rights whatsoever. In other words, the Bushies have every right to do whatever they want with anyone they catch in Iraq or Afghanistan not wearing a uniform, because these guys fall through the cracks.

Now, I'm not an expert in international law, but I can read. The people who created the Geneva Conventions took these people into account, though Steyn wants you to think otherwise. In the Commentaries on the Geneva Conventions, published contemporarily with the ratification of the Conventions, the editors, Oscar Uhler & Henri Coursier, pointed out that this debate already took place nearly 60 years ago.
Some people considered that the Convention should apply without exception to all the persons to whom it referred, while to others it seemed obvious that persons guilty of violating the laws of war were not entitled to claim its benefits. These divergent views had not been expressed, however, and the problem did not arise until after the Stockholm Conference. It arose then because the Conference had adopted a definition of protected persons which covered those who committed hostile acts without being members of the regular combatant forces (1).

As soon as the subject came up for discussion at the Diplomatic Conference several delegations explained that in their opinion provision would have to be made for certain exceptions in the case of spies and saboteurs. They pointed out that the effectiveness of the [p.53] measures taken to deal with enemy agents and saboteurs depended on the secrecy of the proceedings; it was inconceivable that a State which had arrested one or more enemy agents should be obliged to announce their capture and let the persons under arrest correspond with the outside world and receive visits; the situation was the same in the case of saboteurs and also, in occupied territories, in that of members of underground organizations.

Is this line of argument entirely convincing? There may of course be occasions when it is desirable to keep the fact of an arrest secret in the hope of capturing a whole organization or spy ring. But although the Convention obliges the Powers to give protected persons certain opportunities for communicating with the outside world, even when they are being held for trial, it does allow some latitude: Article 136 lays down, for example, that the names of the detained persons are to be transmitted if they are kept in custody 'for more than two weeks'; one can see that this leaves a margin which will, in the majority of cases, meet any legitimate security requirements. To quote another instance, although Article 25 grants protected persons an absolute right to give news of themselves to their families, that does not mean that the messages sent are not subject to censorship.
It is thus clear that the Draft Convention took security requirements into account and it may be wondered whether it was really necessary to resort to express derogations.

It may, nevertheless, seem rather surprising that a humanitarian Convention should tend to protect spies, saboteurs or irregular combatants. Those who take part in the struggle while not belonging to the armed forces are acting deliberately outside the laws of warfare. Surely they know the dangers to which they are exposing themselves. It might therefore have been simpler to exclude them from the benefits of the Convention, if such a course had been possible, but the terms espionage, sabotage, terrorism, banditry and intelligence with the enemy, have so often been used lightly, and applied to such trivial offences (2), that it was not advisable to leave the accused at the mercy of those detaining them.
Already I hear the broken clockwork toys that are wingnut minds whirring into frenzied action. "But that's just a commentary!" Well, you're right, but, A) it's the same commentary used as an authority by the DOD in a legal motion in USA v. David Hicks (PDF link), so it would be odd to say that they shouldn't hold it as valid; and B) this is what it describes:
Art. 5 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.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

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. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
This means that, once they've been off the field of battle long enough to have no information, they have every right to contact their families, to get a fair trial and get the full rights and privileges of the Convention once they're removed from the situation which makes them dangerous.

Steyn goes on to say that the conflict in Afghanistan was international, even though confined to a single country. And, while there may be something to be said for the idea that the rules shouldn't necessarily apply because of the technicalities, it could also be said that, because we are not in an officially declared war, we should not have to follow the Conventions. So any country who wishes to torture at will could simply attack without declaration. Also, the Judge who found Lt. William Calley guilty for his actions in My Lai referred to the Geneva Conventions in his ruling, despite the fact that Vietnam was an undeclared war.

The righties continue to argue that we should get down in the mud with our enemies. Over at FreeRepublic, the freepi are losing it, with one poster writing:
I think military leaders should call a press conference. They should read this press release;

"In light of the latest US Supreme Court ruling and by order of the Cammander in Chief, the all branches of the US military will immediately engage the following policy regarding prisoners of war and/or enemy combatants.


Until fruther notice all current prisoners of war will be returned to a predesignated battlefield in the country they were aprehended.

Thank you for your time. We will now take questions...."

Reporter: " What will you do with enemies who surrender to our troops?"

Answer: "There will be no prisoners taken."

Reporter: "What if they are unarmed or are women?"

Answer: "There will be no prisoners taken."
Jonah Goldberg, while saner than his fellow wingers, shows no more thought than they when he writes in a post entitled "We're the Good Guys":
I think it's folly for the Supreme Court to assert that non-signatories to the Geneva Convention, never mind outright terrorists, must be treated according to its guidelines and I think it's a form of ill-conceived moral bullying to insist that anyone who disagrees is willfully turning his back on decency.
But the guidelines do include these people, as shown. Following these Conventions is simply the decent thing to do. We are only the good guys as long as we continue to do the right thing. When we act like thugs, we are.


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