Re: Re: Re: Legal status of prisoners.

["Ken Hanly" <khanly@xxxxxxxxxxxxxxx>]

To be fair it would seem that the term is not coined by Slaughter but is
defined in the 1949 Geneva Accords. Too bad Al Quaeda did not have special
arm bands or something to identify them as a military organisation subject
to the laws of war! Did the Taliban have a regular recognisable armed
forces?
     I read the whole article and Slaughter seems to contradict herself as
far as I can see.
She characterises the terrorists as criminals and so  subject to criminal
law. But surely the criminal law would require courts that have all the
safeguards and due process of criminal courts not the sort of minimalist
crap or her musings. Better than a summary execution! Indeed! Maybe even
better than a lynch mob. The Taliban did not consider Al-Qaeda a threat
except perhaps because of the reaction of anti-terrorist forces.Here is what
she says. Is it rhetorical flights like this that are signs that there is a
legal mind that ought to be elevated in status?:

Members of al-Qaeda are not military combatants except in their own
understanding of their cause. They are criminals, a threat to every society
in which they move. Their acts are prohibited under all national legal
systems. And under international law, the attacks of September 11 qualify as
crimes against humanity, rendering their perpetrators global outlaws, like
pirates, slave traders, and torturers

Cheers, Ken Hanly


----- Original Message -----
From: "Ian Murray" <seamus2001@xxxxxxxxx>
To: <pen-l@xxxxxxxxxxxxxxxxxxx>
Sent: Saturday, January 12, 2002 6:02 PM
>Subject: [PEN-L:21333] Re: Re: Legal status of prisoners.


>
> > The libs. are right there with 'em. A Harvard lawyer
> uses the term so anti-humpty-dumptyism/anti-nominalism
> is out!:
>
> < http://www.prospect.org/print/V13/2/slaughter-a.html
> >
>
> Anne-Marie Slaughter is the J. Sinclair Armstrong
> Professor of International, Foreign, and Comparative
> Law at Harvard Law School and the president-elect of
> the American Society of International Law.
> slaughtr@xxxxxxxxxxxxxxx
>
> [snip]
> The Role of Military Tribunals
>
> Military tribunals have been used historically to try
> spies and saboteurs. They have provided rough
> battlefield justice when no other form was practically
> available. Trial by military tribunal is certainly
> fairer than summary execution.
>
> In Afghanistan we're actually on a battlefield.
> Al-Qaeda members captured under such circumstances can
> be tried by military tribunals if they are "unlawful
> combatants" under the 1949 Geneva Conventions. The
> convention governing prisoners of war defines unlawful
> combatants as participants in an armed conflict who
> abuse their civilian status to gain military advantage:
> those who do not carry arms openly and do not carry a
> "fixed distinctive sign" such as a uniform or other
> insignia that would identify them as soldiers.
> Terrorists appear to fall into this category almost by
> definition, as they depend on concealing their identity
> before their attacks.
>
> If a prisoner is deemed an unlawful combatant, he or
> she is entitled only to a conviction pronounced by an
> impartial and regularly constituted court respecting
> the generally accepted principles of regular judicial
> procedures. This is a relatively low standard of due
> process, which military tribunals would almost
> certainly meet. But out of respect for our own values
> and traditions as well as public diplomacy, we should
> at least ensure that the rules governing such
> proceedings bring them up to minimum international
> standards of due process: a presumption of innocence,
> the right to choose counsel (although it may be from a
> list provided by the tribunal), a speedy trial, the
> right to confront and rebut adverse evidence publicly,
> and the right of appeal (which could be to a higher
> military tribunal).
>
> Ordinary prisoners of war, by contrast, may also be
> tried for war crimes but are entitled to the same
> standard of process that would be applied to our own
> soldiers: that is, a full courtmartial under the
> Uniform Code of Military Justice. But here's the catch:
> How do we distinguish between lawful and unlawful
> combatants in the first place? Until such a
> determination is made, all prisoners are presumptively
> entitled to POW status. Membership in al-Qaeda, per se,
> suggests unlawful combatant status, since a lawful
> combatant must be a member of an organization capable
> of complying with the laws of war. But it's not clear
> who gets to make this determination--a military
> tribunal or a full court-martial?
>
> In addition to these legal complexities, military
> tribunals are likely to present a number of unforeseen
> political headaches. Dozens of al-Qaeda members are
> being detained in Afghanistan; hundreds more could
> follow in Pakistan as well. Once we establish
> tribunals, do we have to try them all? It is one thing
> to detain combatants until after hostilities are over;
> but once tribunals are in place and in use against some
> defendants, where do we stop? The Bush administration
> emphatically does not want to conduct mass trials; the
> logistical difficulties are enormous and there would be
> no faster way to turn many of our new Afghan allies
> into enemies. Identifying a few notable leaders and
> shipping them back to the United States for trial in
> ordinary federal court may look better and better.
>
> Finally, other nations will be watching how we
> interpret and apply the Geneva Conventions. As the
> world's leading military power, the United States has
> been a strong supporter of the 1949 Conventions, on the
> grounds that widespread adherence to their provisions
> is more likely to benefit our soldiers captured abroad
> than to burden us in treating those we have captured.
> Deviations from those provisions now, when our soldiers
> are in the field in substantial numbers, are likely to
> come back to haunt us.
> [snip]
>
>