Posted on 12/31/2001 11:56:44 AM PST by Croooow
The Rules of War Can't Protect Al Qaeda
By RUTH WEDGWOOD
NEW HAVEN — It makes no sense to win a trial but lose the war. With this in mind, a majority of the American public favors giving President Bush the option to use military tribunals against the Qaeda terror network.
The tribunals are designed to permit a "full and fair trial" of war crimes without compromising our ability to track the network's future plans. Al Qaeda's skill at countersurveillance has made plain the need to protect sensitive intelligence sources at trial.
But some international-law scholars suggest that President Bush's plan for military tribunals itself violates international law. This view is based on a serious misreading of international treaties on how wars should be fought.
Afghanistan and the United States have a few things in common. Each has ratified the third Geneva Convention of 1949, which sets out basic protections for prisoners of war. But such prisoners must be defined as lawful combatants for the treaty to apply.
There are four key prerequisites. First is being part of a fighting force that adheres to an organized structure of command, so someone can be held responsible. Second is wearing a distinctive military uniform or insignia — so that the other side can spare civilians without fearing counterattack by disguised fighters. Third is carrying arms openly. And fourth is reciprocal respect for the laws of war. To claim the protection of the law, a side must generally conduct its own military operations in accordance with the laws of war.
Al Qaeda has violated these laws at every turn, and certainly in the Sept. 11 attacks. In protecting and harboring Osama bin Laden and his operatives, the Taliban leadership has also become party to the violations.
The traditional fate of unlawful combatants has been nasty, brutish and short, in tribute to their chosen form of warfare. Francis Lieber, a Columbia University professor and founder of the modern law of armed conflict in America, bluntly advised the Union Army in 1863 that guerrillas, spies and saboteurs could be summarily shot.
It was more than 100 years later, in the politically fraught setting of the 1970's, that Lieber's rule of lawful combatants came under scrutiny. It was challenged in negotiations on a new protocol for international war. Some countries favoring the overthrow of regimes of "colonial domination and alien occupation" — the language used in the protocol — argued for a new indulgence of guerrilla tactics, where combatants are disguised in a sea of civilians.
The illusory "step forward" of the draft 1977 protocol was to suggest that P.O.W. privileges should be accorded to combatants even when they disguise themselves as civilians. The United States refused to ratify this protocol, arguing that it lessens protections for civilians as well as for American forces. (Afghanistan also failed to ratify it.)
But this hard legal fact has not stopped some scholars of international law from asserting that President Bush's plan to create military tribunals should be rejected on the grounds that it violates international law as applicable to prisoners of war.
In any event, critics should be assuaged by the fact that the proposed rules for military tribunals will incorporate many legal principles that apply in American courts. According to recent news reports, the tribunals will allow some form of appellate review or petition for Qaeda suspects. The legal standard for proof of guilt is that it be beyond a reasonable doubt. Defendants will be able to select civilian counsel, which will serve alongside military defense counsel. They cannot be subject to the death penalty except by unanimous decision.
But it would be a mistake to demand for Al Qaeda and the Taliban leadership the full protections accorded armies that respect the law of war. The military tribunals established by the presidential order are required to provide "full and fair" justice, but they should not be measured by a false standard.
The recent event involving the near ignition of a shoe bomb on an airplane is a strong reminder that the threat of terrorism still confronts us, whether from Al Qaeda or other groups. Al Qaeda has chosen tactics that specifically target civilians. The extraordinary protections that we provide in domestic trials, including trials under the Uniform Code of Military Justice for disciplinary offenses, should not be granted to combatants who have trampled on the laws of war.
Ruth Wedgwood is a professor of international law at Yale Law School and Johns Hopkins University.
I understand that the author is a professor of ahem..."international" law but why is this perspective even considered.
I dont care if it blatently and willfully violates every major pillar of international law and spits in the face of it's founder....whoever that is.
We do what we do...if the international community doesnt like it then all the better.
The recent event involving the near ignition of a shoe bomb on an airplane is a strong reminder that . . . Al Qaeda has chosen tactics that specifically target civilians. The extraordinary protections that we provide in domestic trials, including trials under the Uniform Code of Military Justice for disciplinary offenses, should not be granted to [ruthless irregular] combatants<> who have trampled on the laws of war.
Geneva Convention relative to the Treatment of Prisoners of War
BTW, this is something I love about Free Republic ... all of us teaming together to find things out ... sure beats the endless "ping", "bump" and other "me too" posts that contribute nothing to finding things out
Because it's good debating practice to mention your opponent's view before demolishing it. For the New York Times, this is a surprisingly good editorial.
ROTFLMAO!
As much as my limited brain can recall from my classes on the Law of Armed Conflict (LOAC), a military must adhere to certain rules if it desires its soldiers/participants are treated to protection under the rules of war. Amoung these are:
1. Soldiers must wear a distinctive uniform that makes them readily identifiable.
Sorry, Al Qaeda--you went for the blue-light-special on the Turban and Sheet that doubles as civilian garb on this one.
2. Upon surrender, all prisoners must acknowledge that they are NON-COMBATANTS for the duration of the war, or until they are repatriated by their host nation.
Al Qaeda--that prison revolt in November kinda screwed you guys out of this one too. Now all prisoners can be subjected to "No Quarter" rules because of your behavior.
3. Armies will recognize non-lethal and nuetral 3rd party organizations as non-hostile and will not subject them to arrest or detainment (i.e. The Red Cross).
Well, when you arrested those Western Aid Workers ya guys screwed this one up to. Sorry---3 strikes and your out.
Good luck with the Pakistanis and Northern Alliance guys. I am sure they have western standards of decency.
I dont care if it blatently and willfully violates every major pillar of international law and spits in the face of it's founder....whoever that is.
We do what we do...if the international community doesnt like it then all the better.
Fair enough. Then maybe the hypocritical Americans can then stop insisting that the rest of the world adhere to "international law." Were the Bush Administration to withdraw American support for the U.N.'s so-called International Criminal Tribunal for the former Yugoslavia, that would be a damned fine start.
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