The Geneva Convention And Terrorists, SCOTUS Blows It

The Supreme Court of the US decided in the Hamdan case that the Executive Branch had violated International Law with regard to the detainees at Guantanamo Bay Cuba. The SCOTUS decided in a 5-3 decision that Article 3 of the Geneva Convention applied to the detainees and that the Bush Administration did not have the authority to put the terrorists on trial in military tribunals. The SCOTUS, in its decision, ignored the balance of the Convention while arbitrarily applying one portion of the convention. Specifically, the SCOTUS decided that this portion applies:

Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

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.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

The US was already following this particular article though there has been debate as to what constitutes torture. The idea of torture is a separate situation and those who engaged in any acts that were deemed inappropriate have been or are being prosecuted and punished accordingly. This particular aspect is open to debate and is best left for another time. What is important is that the SCOTUS applied Article 3 while ignoring Article 4 which specifically outlines to whom the Convention applies. This is a portion of Article 4 that outlines who is considered a prisoner of war:

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

Whether or not the terrorists who were captured fall under the first item can be debated. No one has taken responsibility for the actions of the terrorists in any kind of Command and Control structure. But there is no debate that the people we are holding do not follow the last three items. The do not wear uniforms and routinely blend in with civilian populations, at times they carry weapons (including bomb vests) concealed, and they certainly do not operate within the customs of war. They murder captives and civilians without regard for the law. The SCOTUS ignored these items in order to afford savages the protections that are customarily given to combatants. In essence, the SCOTUS made a decision based on one part of the Convention while completely ignoring another.

Today we learned that Israel has taken a town along the Lebanese border and they found a Mosque that had rockets and other weapons in it. This is a violation of the very Convention that the SCOTUS used to afford protection to terrorists. The terrorists must be laughing at the naivete’ of Americans and their judicial system. They have effectively used our court system to obtain “rights” they themselves are not willing to afford to others. The thing that is most baffling to me is that the SCOTUS is supposed to be made up of some of the best legal minds in the country. How then, could they blow this one so badly?

Unfortunately, the SCOTUS has been unraveling the fabric of our society. They, in combination with the lower courts, have infringed on the rights of property owners, have condoned the destruction of human life (at taxpayer expense) and have now given terrorists at Gitmo the protections that are supposed to be afforded to combatants who follow the rules of war. What will we do with the people on the battlefield who refuse to follow the Geneva Convention but demand to be protected by it. Here is an idea for our troops:

Perhaps if all the bad guys died in fighting we would not have to worry about this. I am not saying we should take prisoners and then shoot them. That would be murder and violate the convention. I am suggesting that we ensure they all die in the fighting so that they do not have the chance to surrender and we do not have to take them prisoner. If we absolutely have to take them prisoner we need to hold them in another country and then turn them over to people who can deal with them more effectively. There is no provision, that I am aware of, that says prisoners can not be transferred to the authority of other entities involved in the conflict. This might actually be a better tact because many of the terrorists we are holding have been cleared and refuse to leave for fear they will be killed. We are so bad for these people but they refuse to leave us because they are worried it might be worse where they are going. I say screw them. Send them out to their home countries, especially if that country will be unhappy with them. We need to start clearing out Gitmo by sending these animals to places where they can receive the same kind of treatment they are only too happy to provide to others.

Geneva Convention Relative To Treatment of Prisoners of War
New York Times

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