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.
The Gitmo story from the google news you sent me.
Thanks for the link!
Interesting concept.
Terrorism could be tried as a war crime or a crime against humanity.
I would love to see that happen.
Good to see ya Cal!
My answer is no
One mans terrorist could be another resistance.
If America or my country was invaded and we resisted we would not want to be classed as war criminals.
Tony
Bump!
Nice to see you too Judicial.
Is there a difference?
RE: war crime vs crime against humanity.
>>>If America or my country was invaded and we resisted we would not want to be classed as war criminals.
Now that is an interesting perspective.
Yeah. My hearts bleeding, too. Funny how nobody notices how America bends over backwards in applying THE RULE OF LAW in all these cases. Lots of other places (Cuba, China, Iran, etc...)you'd just be taken out an shot! When are we going to learn these people are totally outside civilized behaviour, and only use our institutions agaist us? And another thing, terrorism might not be a war crime, but it's a crime against humanity. Let's see if the UN or the Geneva Conventions get updated to include it. Right after Tareeezah sobers up (sarc :-)
What do you think of the point in post 4?
Both are different legal categories, each a seperate area of law.
If I were prosecuting it, I would take a two pronged approach and charge them in both areas.
I havent done the research, but it would probably work.
Does this mean, that if one charge is gone after and the prosecutor loses, they go free?
And what are the difference in severity?
Post 4 makes an interesting point.
Calpernia:
These appear to be the guiding statutes of law:
Article 147 of the Geneva Convention, which addresses:
“ willful killing, torture, inhuman treatment,” or causing “ great suffering, serious injury to body or death” as well as the taking of hostages.
Hague Tribunal, Article 3, which addresses:
"attack or bombardment of undefended towns, villages, dwellings, or buildings."
Note: suicide/ homicide/ martyr bombers usually attack undefended buildings, cities, or towns and target indiscriminately civilians, women, and children for the infliction of the maximum amount of victims and terror. This could legally be defined as a bombardment.
Article 6 (c) of the Nuremburg Statutes defines crimes against humanity as:
“ murder” of civilians on “religious, racial, or political grounds” .
I would go for charging all these turkeys on the charges listed above. They fit both categories.
They are being tried as unlawful combatants under the law of war. Whether they fit that definition should be clear from treaties the congress has ratified. Nothing 'retroactive' about it.
"A pirate, an outlaw, or a common enemy to all mankind, may be put to death at any time. It is justified by the laws of nature and nations."
Patrick Henry
Well Said.
If I were a "freedom fighter" I would go by the rules and play by the book. That means you wear a uniform and limit your operations to legitimate military targets and not civilians.
There are Geneva Convention rules that cover in detail who is a combatant and who isnt. I wouldnt want to be caught in the unlawful combatant category ( I.e. pirate, corsair, or others) because you can still be executed on the spot in some countries.
Of course, being America, we dont do that. I can name other countries who wouldnt be so full of grace if they caught terrorists.
Bump and Ping
Its all part of the propaganda and psyops war which is just as important as the man on the ground doing the fighting.
When serving in North Ireland we were constantly told that the IRA INLA, UFF and other groups were criminals to help us deal with them appropriately and to make sure we had no sympathy with there cause.
Tony
If America or my country was invaded and we resisted we would not want to be classed as war criminals.
There is another, more important distinction, though.
An insurgency or "resistance" does not intentionally or necessarily target innocent civilians. Terrorism does -- civilian men, women and children (see Beslan) are considered valid targets.
Resistance forces who confine their targets to the occupying military forces (or administrative officials) are not covered by the Geneva Convention, but they are not committing war crimes, either.
If you are fighting an enemy superior in numbers and equipment, they have the tanks the artillery guns and helicopters fighting as a military formation is a sure fire way to get killed and very quickly.
You will in the end target collaborators and target enemy civilians as well as other soft targets which will force the enemy to retaliate with harsher methods against local civilians to force them further into your camp.
One of my roles during the 80s was stay behind OP to let the Soviets roll by and then raise hell in the enemies rear.
Also there was then a real threat of a Soviet Invasion of Britain.
Tony
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