Posted on 11/04/2004 2:02:41 PM PST by Calpernia
Judges and defense lawyers at Guantánamo tribunals argued over whether terrorism should be defined as a war crime.
GUANTANAMO BAY NAVY BASE, Cuba -- Arguing that the Nuremburg tribunals established genocide as an international crime 60 years ago, the colonel presiding over the first U.S. war-crimes court since World War II left open the possibility Tuesday that terrorism could debut as a valid war crime at Guantánamo Bay.
Defense lawyers argued in pretrial hearings for Australian captive David Hicks, 29, that the Bush administration has retroactively and illegally invented terrorism as a catchall war crime for al Qaeda detainees held at the detention center here.
They repeatedly cited the ex post facto factor in a bid to have charges dropped against Hicks, a Christian convert to Islam who was handed over to American troops in the post-Sept. 11, 2001, invasion of Afghanistan.
Defense lawyer Joshua Dratel of New York explained ex post facto this way: If you swam on Tuesday and Congress outlawed it on Wednesday, you cannot be charged with swimming illegally on Thursday.
''Terrorism is not an offense under the law of war,'' said defense lawyer Marine Maj. Michael Mori, calling it ``a descriptive term, not a charge in and of itself.''
The prosecutor, Marine Lt. Col. Kurt Brubaker, countered that the principle has been around since ``pirates posed a problem from outside our shores.''
Army Col. Peter Brownback, the presiding officer in the war-crimes court at Hicks' trial, resolved it this way: ``We're arguing from analogies here. Genocide wasn't a crime until Nuremburg, right? Nuremberg was the first one for genocide.''
The crux of the issue is whether the Bush administration has improperly designed a new legal system to try suspected terrorists captured in a third country, Afghanistan, and transferred to another country, Cuba, rather than use existing laws in U.S. military or civilian courts.
Attorney Kenneth Hurwitz of Human Rights First, the new name of New York-based Lawyers for Human Rights, watched the arguments with alarm, in part because two members of the three-judge panel have no legal training. In the Pentagon's newly designed court, the Marine and Air Force colonels sitting with Brownback have equal status in ruling both on facts and law, a fusion of the modern judge-and-jury system.
The prosecutor, Brubaker, characterized the new court and laws as suitable to the 21st century challenges of al Qaeda, a new kind of conflict that doesn't fit traditional international rules governing armed conflict.
''Defense tells you we could've shot him and killed him when he was on the battlefield. The laws of humanity say we can capture him, . . . detain him, and . . . try him under the laws of war,'' he said.
The panel is expected to rule this week on a series of motions that challenge the charges and President Bush's framework for trying them. If they lose, Hicks' trial is slated to start Jan. 10.
Cal,
A good thread, there are things worth learning in it.
Thank you.
"The tape proves the Clinton administration was aggressively tracking al-Qaida a year before 9/11. But that also raises one enormous question: If the U.S. government had bin Laden and the camps in its sights in real time, why was no action taken against them?" - Lisa Myers
First, are we considering everyone who should be prosecuted? Secondly, those terrorists who attacked the Cole, Trade Center... were not citizens of our country, what constitutional rights are they afforded?
Attacks directed against civilian targets do not qualify as war crimes? Then I guess hospitals, schools and churches are legitimate military targets and attacking them should not be punished.
I do not consider the attacks against the Marine Barracks in Lebanon, nor the attack against the USS Cole to be acts of terrorism. They were clearly acts of war, but they were directed at military targets. Any war crimes attached to them would be in the methods of attack, i.e. by combatants not wering uniforms, and not the attacks themselves.
The detainees being tried are being tried for their association with attacks on civilian targets. Those acts are definitely worthy of consideration as war crimes.
Yes there are. I will be back to read it after the kids have their homework done :)
http://www.globalissuesgroup.com/geneva/protocol1.html#37 Article 37 1(a) and 1(c) seem particularly pertinent to Iraq and Afghanistan. I think there's also something about the movement of forces with the intent to engage the enemy under a civilian guise - can't recall where.
Clearly the Geneva Conventions are inadequate when it comes to all the methods favoured by terrorist forces. It just disappoints me that rather than recognising the urgent need to fill this gap in international law the rest of the world would rather condemn the US for its attempt to bring justice.
You have to be at war to commit a war crime. For this purpose, a state of war can exist only between legitimate states. But in some cases, both are correct.
Tony:
I've got a little military and law enforcement experience behind me as well. About 25 years all summed up. You are correct in your statements, but I think I was a little vague in my response.
The only way to fight a superior enemy ( more planes, guns, tanks, aircraft, etc) is to engage in hit and run guerilla tactics, and make sure you have the advantage during infiltration as well as exfiltration. You need logistics and support, and you have to communicate. Collaborators threaten these lifelines and are a threat. Civilians may die as an unintended consequence, but are not specifically targeted for killing as part of the strategy or campaign tactics.
Collaborators are also called spies. History proves they get killed pretty quickly when found.
Tactics have to change and evolve, or else you are dead in a month when they figure out your patterns.
Let me clarify my point, or put a finer edge on it, because I probably wasnt very clear.
I was specifically addressing terrorists who:
1) Dont wear a uniform
2) Dont belong to the national military, reserves, national guard, or organized militia
3) have no means of identification ( dog tags, etc)
4) Intentionally target civilians and avoid contact with military forces
5)use murder, rape and terrorism to inflict fear on the population
6) Have a religious motivation and desire to conquer the world
7) Have a religious mandate to murder unbelievers
8) Dont care about the rule of law
When terrorists plot, finance, rehearse and exacute the slaughter of thousands and thousands of my people, they breach this fundemental civil right to continue to live.
Any sensable and balanced debate on civil rights must include this metric as a component of the debate.
We made many mistakes in the 70s and help encourage many young men to hate us fear us and see us as the enemy they thought they were joining up to fight us and to free Ireland.
One thing when forming a organisation you will get many types joining you, true believers Walter Mitty types those who want action those who are bored as well as criminals who use the fight for there own ends.
Thankfully I never had to fight as the insurgent the Soviets would of been very ruthless.
Tony
Hi JM, thanks for the ping.
Isn't the deliberate targeting of civilians against the Geneva Convention thus making it a war crime?
Well, terrorism is the deliberate targeting of civilians thus making it a war crime.
From: http://www.genevaconventions.org/
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
There's a whole lot more out there, but I think this covers it.
Lets go to the most vulnerable time early 80s when there was a real fear that the Soviet Union was powerful enough to win a ground war against NATO.
Lets say that the Soviets occupied Britain.
We are a small built up country most resistance will be targeted in the towns and cities.
Therefore most of your points
1) Don’t wear a uniform ect
will be what we would have to do to fight any soviet occupation.
I feel that you are coming more from a militia point of view which would suit America with your vast spaces ideal for attacking conveys and isolated outposts.
In a small countries it will be a very dirty ruthless war on par with the resistance war in France in 1942-1944.
Where ruthless French action led to ruthless German action.
Tony
If someone doesn't know the answer to this question, then they must be a democrat.
I didnt initially realize you were talking about the UK, and I see your point really clearly now. You are absolutely right.
In America, we have the luxury of space. In GB, you dont have that luxury at all. I spent three years there in the Cold War myself, and I would have hated to face that scenario in the UK.
bumping to ensure I come back to this and read all.
Where were you based were you air force.
I was in the Royal Artillery, then stay behind op, then transferred to the commandos and then spent my last 7 years as a reservist or TA equiv to your National Guard in Int and Sy.
Tony
9 years US Navy Submarine Service. Stationed in Holy Loch, Pearl Harbor, and good old Virginia. Currently serving in the State Guard here in Va.
Went law enforcement after I got out, served in everything from traffic enforcement to investigation, gang enforcement to SWAT ( we called it the tactical team).
I was based in Scotland Fort Willaim good country for commando training hated it cold wet muddy.
Always good to meet another Cold War Vet.
Cheers Tony
I cant believe to this day it actually rained sideways in Holy Loch....it really was cold, wet and muddy.
I still have fond memories of the frostbite, ice, and sideways rain....as well as the great people over there.
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