...from his bio.
But here's the real shocker:
Professor Byers is spending the 2001-2002 academic year as the Peter North Fellow at the Center for Socio-Legal Studies and Keble College, Oxford University.
Peter North, the porn star?
Posted on 01/15/2002 7:19:47 AM PST by tberry
US doesn't have the right to decide who is or isn't a PoW
Ignore the Geneva convention and we put our own citizens in peril
Michael Byers
Monday January 14, 2002
The Guardian Would you want your life to be in the hands of US secretary of defence Donald Rumsfeld? Hundreds of captured Taliban and al-Qaida fighters don't have a choice. Chained, manacled, hooded, even sedated, their beards shorn off against their will, they are being flown around the world to Guantanamo Bay, a century-old military outpost seized during the Spanish-American war and subsequently leased from Cuba by the US. There, they are being kept in tiny chain-link outdoor cages, without mosquito repellent, where (their captors assure us) they are likely to be rained upon.
Since Guantanamo Bay is technically foreign territory, the detainees have no rights under the US constitution and cannot appeal to US federal courts. Any rights they might have under international law have been firmly denied. According to Rumsfeld, the detainees "will be handled not as prisoners of war, because they are not, but as unlawful combatants".
This unilateral determination of the detainees' status is highly convenient, since the 1949 Geneva convention on the treatment of prisoners of war stipulates that PoWs can only be tried by "the same courts according to the same procedure as in the case of members of the armed forces of the detaining power". The Pentagon clearly intends to prosecute at least some of the detainees in special military commissions having looser rules of evidence and a lower burden of proof than regular military or civilian courts. This will help to protect classified information, but also substantially increase the likelihood of convictions. The rules of evidence and procedure for the military commissions will be issued later this month by none other than Donald Rumsfeld.
The Geneva convention also makes it clear that it isn't for Rumsfeld to decide whether the detainees are ordinary criminal suspects rather than PoWs. Anyone detained in the course of an armed conflict is presumed to be a PoW until a competent court or tribunal determines otherwise. The record shows that those who negotiated the convention were intent on making it impossible for the determination to be made by any single person.
Once in front of a court or tribunal, the Pentagon might argue that the Taliban were not the government of Afghanistan and that their armed forces were not the armed forces of a party to the convention. The problem here is that the convention is widely regarded as an accurate statement of customary international law, unwritten rules binding on all. Even if the Taliban were not formally a party to the convention, both they and the US would still have to comply.
The Pentagon might also argue that al-Qaida members were not part of the Taliban's regular armed forces. Traditionally, irregulars could only benefit from PoW status if they wore identifiable insignia, which al-Qaida members seem not to have done. But the removal of the Taliban regime was justified on the basis that al-Qaida and the Taliban were inextricably linked, a justification that weakens the claim that the former are irregulars.
Moreover, the convention has to be interpreted in the context of modern international conflicts, which share many of the aspects of civil wars and tend not to involve professional soldiers on both sides. Since the convention is designed to protect persons, not states, the guiding principle has to be the furtherance of that protection. This principle is manifest in the presumption that every detainee is a PoW until a competent court or tribunal determines otherwise.
This too is the position of the International Committee of the Red Cross, which plays a supervisory role over the convention. The Red Cross and Amnesty International have both expressed concerns over the treatment of the detainees.
The authorities at Guantanamo Bay have prohibited journalists from filming the arrival of the detainees on the basis that the convention stipulates PoWs "must at all times be protected against insults and public curiosity". The hypocrisy undermines the position on PoW status: you can't have your cake and eat it.
Even if the detainees were not PoWs, they remain human beings with human rights. Hooding, even temporarily, constitutes a violation of the 1984 convention against torture and cruel, inhuman or degrading treatment. Apart from causing unnecessary mental anguish, it prevents a detainee from identifying anyone causing them harm. Forcefully shaving off their beards constitutes a violation of the right to human dignity under the 1966 international covenant on civil and political rights. Forcefully sedating even one detainee for non-medical reasons violates international law. Although strict security arrangements are important in dealing with potentially dangerous individuals, none of these measures are necessary to achieving that goal. If human rights are worth anything, they have to apply when governments are most tempted to violate them.
There are many reasons why these and other violations are unacceptable. The rights of the detainees are our rights as well. Yet international law can be modified as a result of state behaviour. If we stand by while the rights of the detainees are undermined, we, as individuals, could lose.
British and American soldiers and aid workers operate around the world in conflict zones dominated by quasi-irregular forces. The violations in Guantanamo Bay will undermine the ability of our governments to ensure adequate treatment the next time our fellow citizens are captured and held. Respecting the presumption of PoW status and upholding the human rights of detainees today will help to protect our people in future.
The US has occupied much of the moral high ground since September 11, and benefited enormously from so doing. Widespread sympathy for the US has made it much easier to freeze financial assets and secure the detention of suspects overseas, as well as secure intelligence sharing and military support. The sympathy has also bolstered efforts to win the hearts and minds of ordinary people in the Middle East, south Asia and elsewhere. That might just have prevented further terrorist attacks.
Ignoring even some of the rights of those detained in Guantanamo Bay squanders this intangible but invaluable asset, in return for nothing but the fleeting satisfaction of early revenge. The detainees should be accorded full treatment as PoWs and, if not released in due course, tried before regular military or civilian courts - or even better, an ad hoc international tribunal. As the world watches, vengeance is ours. But so, too, are civilised standards of treatment and justice.
· Michael Byers teaches international law at Duke University, North Carolina. He is currently a visiting fellow at Keble College, Oxford.
"This unilateral determination of the detainees' status is highly convenient, since the 1949 Geneva convention on the treatment of prisoners of war stipulates that PoWs can only be tried by "the same courts according to the same procedure as in the case of members of the armed forces of the detaining power". The Pentagon clearly intends to prosecute at least some of the detainees in special military commissions having looser rules of evidence and a lower burden of proof than regular military or civilian courts. This will help to protect classified information, but also substantially increase the likelihood of convictions. The rules of evidence and procedure for the military commissions will be issued later this month by none other than Donald Rumsfeld"
"British and American soldiers and aid workers operate around the world in conflict zones dominated by quasi-irregular forces. The violations in Guantanamo Bay will undermine the ability of our governments to ensure adequate treatment the next time our fellow citizens are captured and held. Respecting the presumption of PoW status and upholding the human rights of detainees today will help to protect our people in future.
Ignoring even some of the rights of those detained in Guantanamo Bay squanders this intangible but invaluable asset, in return for nothing but the fleeting satisfaction of early revenge. The detainees should be accorded full treatment as PoWs and, if not released in due course, tried before regular military or civilian courts - or even better, an ad hoc international tribunal. As the world watches, vengeance is ours. But so, too, are civilised standards of treatment and justice.
The reasons that their heads and beards were shaved is because these animals were infested with lice and god knows what else.
We should have just buried them alive in the desert and been done with it.
Don't know about the rest of the article, but the first time I heard that statement I thought, that ain't gonna fly, and if Rumsfeld doesn't back off of that, it is gonna bite us in the a$$ down the road.
Adequate treatment like killing them and dragging their corpses through the streets? Please. When have US PoW's ever been treated adequately?
...from his bio.
But here's the real shocker:
Professor Byers is spending the 2001-2002 academic year as the Peter North Fellow at the Center for Socio-Legal Studies and Keble College, Oxford University.
Peter North, the porn star?
This is where the Guardian's argument completely collapses.
Typical leftist dribble written by clueless Marxists in their ivory towers....
Just because we get a little flak from a British Marxist rag?
After all, they sure ain't with US...
This writer from the UK is full of it. He has an agenda but no facts.
"He was a fugitive murderer and an outlaw--a man who commanded an infamous banditti, and at a time when the war was at the most perilous stage. He committed the most cruel and shocking barbarities. He was an enemy to the human name. Those who declare war against the human race may be struck out of existence as soon as they are apprehended. He was not executed according to those beautiful legal ceremonies which are pointed out by the laws in criminal cases. The enormity of his crimes did not entitle him to it. I am truly a friend to legal forms and methods; but, sir, the occasion warranted the measure.
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. "
The laws of nations haven't changed much in 200 years.
Absolutely! If there is any axiom concerning "rights" it is that rights exist only as long as there is the power to back and protect them. Right now, we have that power.
When we no longer have the power to back our rights they will fade with the wind.
No, the removal of the Taliban regime was justified on the basis that it insisted on sheltering al-Qaida, in the face of repeated requests that its leadership be handed over for judgment. This makes the former an accessory after the fact to the terrorism of the latter, but does not make the two organizations legally indistinguishable.
Like we did with the Iraqis?
I would like to personally apologize on behalf of all North Carolinians. Please ignore anything coming out of Duke, including this man.
Well, since only one government in the world recognized them as a legitimate ruling body and the U.N. agreed that they were not, I'd have to say that's a pretty sound argument. The author seems to think that "widely regarded" (by whom?) and "unwritten rules" constitute some sort of legal obligation. That is simply silly. And as both the US and the Taliban "having to comply," that's sillier still - the Taliban's rule over Afghanistan was ludicrously out of compliance with any international law - hanging opposition leaders from the barrels of their tanks, for example, does not strike me as being in compliance with the Geneva convention.
The Pentagon might also argue that al-Qaida members were not part of the Taliban's regular armed forces. Traditionally, irregulars could only benefit from PoW status if they wore identifiable insignia, which al-Qaida members seem not to have done. But the removal of the Taliban regime was justified on the basis that al-Qaida and the Taliban were inextricably linked, a justification that weakens the claim that the former are irregulars.
What "justification" is the author talking about, and how is it legally binding on anyone? Who was it who claimed that the Taliban and al-Qaida were "inextricably linked?" That's not only a straw man, it's a false one - al-Qaida people were and are "foreigners" according to the Taliban themselves. They most certainly were "irregulars" inasmuch as they made deliberate efforts to blend in with local populations - in fact, they have a number of training manuals detailing the best ways to do precisely that. Even according to this author's mystical "unwritten rules" these guys don't benefit from any protection of the Geneva convention, nor, may I remind the author, did their victims in the World Trade Center.
I don't understand this deliberate myopia - these guys say they're terrorists, they act like terrorists, they glory in acts of terrorism, why on earth do people like this author insist on regarding them as anything but?
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