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04/01/2007 06:43:03 PM · #76 |
Originally posted by OmanOtter:
The folks locked-up at Guantanamo are unlawful combatants, not Prisoners of War, and do not get to claim the protections of GPW. |
This is an area where your self-certainty is unjuistified: there is a strong argument that unlawful combatant status does not exist - you are either a civilian or a combatant. People cannot fall outside the Geneva conventions - though that is the justification used by the US for Guanatanamo Bay.
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04/01/2007 11:28:01 PM · #77 |
Originally posted by Matthew:
Originally posted by OmanOtter:
The folks locked-up at Guantanamo are unlawful combatants, not Prisoners of War, and do not get to claim the protections of GPW. |
This is an area where your self-certainty is unjuistified: there is a strong argument that unlawful combatant status does not exist - you are either a civilian or a combatant. People cannot fall outside the Geneva conventions - though that is the justification used by the US for Guanatanamo Bay. |
This is where you are simply and wholly wrong. Go do a little research on the International Law of Armed Conflict. Read the Geneva Conventions (all four of them) and the Hague Conventions. Study other authoritative sources as well. Unlawful combatant status isn't even questioned. |
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04/02/2007 12:43:31 AM · #78 |
Originally posted by Matthew:
Originally posted by OmanOtter:
The folks locked-up at Guantanamo are unlawful combatants, not Prisoners of War, and do not get to claim the protections of GPW. |
This is an area where your self-certainty is unjuistified: there is a strong argument that unlawful combatant status does not exist - you are either a civilian or a combatant. People cannot fall outside the Geneva conventions - though that is the justification used by the US for Guanatanamo Bay. |
The existence of the "unlawful combatant" status is nothing new. Its use goes back to the 1940's.
Of course, back then, people who would be considered as unlawful combatants were usually shot (spies, saboteurs, etc). Perhaps you would consider that a preferable alternative today? |
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04/02/2007 09:21:44 AM · #79 |
Originally posted by Spazmo99:
Originally posted by Matthew:
Originally posted by OmanOtter:
The folks locked-up at Guantanamo are unlawful combatants, not Prisoners of War, and do not get to claim the protections of GPW. |
This is an area where your self-certainty is unjuistified: there is a strong argument that unlawful combatant status does not exist - you are either a civilian or a combatant. People cannot fall outside the Geneva conventions - though that is the justification used by the US for Guanatanamo Bay. |
The existence of the "unlawful combatant" status is nothing new. Its use goes back to the 1940's.
Of course, back then, people who would be considered as unlawful combatants were usually shot (spies, saboteurs, etc). Perhaps you would consider that a preferable alternative today? |
I THINK the concept of unlawful combatants goes a lot farther back than the 1940's. The Hague and Geneva Conventions were, in some measure, codifications of customary international law of war that already existed, but which had not yet been formalized in multilateral treaty form.
As for whether capital punishment would be a preferable alternative to coddling unlawful combatants in Cuba with three meals a day, world-class health care, religious rights and access to lawyers, I have absolutely no opposition to capital punishment in appropriate circumstances. For insurgents in Iraq planting roadside bombs, for example, yes, absolutely, if there is sufficient evidence of their guilt, give them the firing squad.
Appropriateness of capital punishment would be situation-dependent, of course.
The very purpose of the rules of war is to reduce unnecessary suffering -- especially among noncombatants. When one party to a conflict hides behind the civilian (noncombatant) populace, members of the civilian (noncombatant) populace inevitably get killed. |
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04/02/2007 10:30:09 AM · #80 |
Originally posted by Matthew:
I am not sure how your analysis of my example defines the point: if you are arguing that a nation or policy or group of people can be inherently bad, then it should be self evident that the pursuit of one policy for a short period (even if that policy is irredemiable) does not make them inherently bad - just that they pursued a bad policy for a period of time. |
I understood all this. As I said, it is easier to define things as bad using vernacular, instead of defining terms so accurately as to require retreading arguments over and over again. Not that I don't think the initial analysis isn't required (it is), but again as I said, badness exists in perspective, from a particular position and time, and, well, Iran's bad at the moment.
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04/02/2007 10:56:19 AM · #81 |
Originally posted by OmanOtter:
Originally posted by Matthew:
there is a strong argument that unlawful combatant status does not exist - you are either a civilian or a combatant. People cannot fall outside the Geneva conventions - though that is the justification used by the US for Guanatanamo Bay. |
This is where you are simply and wholly wrong. Go do a little research on the International Law of Armed Conflict. Read the Geneva Conventions (all four of them) and the Hague Conventions. Study other authoritative sources as well. Unlawful combatant status isn't even questioned. |
Again - your self-certainty is a little premature. The leading analysis is contained in the Judgment of the International Criminal Tribunal for the Former Yugoslavia in the case of Delalic et al. (I.T-96-21) "Celebici" 16 November 1998. All non-combatants have civilian status. You can read the relevant sections (paras 269-71) here.
I will quote the relevant part of the judgment:
Originally posted by ICTY:
...the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.
It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;
[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view. |
Unlawful combatant may be a phrase that has been used, but it does not denote a separate class of people who exist between POW and civilian - unless you are GWB and you decide that the court is wrong and that you have the power to ignore it and re-interpret the law unilaterally to suit your political purpose.
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04/02/2007 11:59:57 AM · #82 |
MSNBC article - US Supreme Court rules against Guantanamo detainees
"The victory may be only temporary, however. The high court twice previously has extended legal protections to prisoners at the U.S. naval base in Cuba."
Message edited by author 2007-04-02 12:02:23.
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04/02/2007 12:50:15 PM · #83 |
Originally posted by Matthew:
Originally posted by OmanOtter:
Originally posted by Matthew:
there is a strong argument that unlawful combatant status does not exist - you are either a civilian or a combatant. People cannot fall outside the Geneva conventions - though that is the justification used by the US for Guanatanamo Bay. |
This is where you are simply and wholly wrong. Go do a little research on the International Law of Armed Conflict. Read the Geneva Conventions (all four of them) and the Hague Conventions. Study other authoritative sources as well. Unlawful combatant status isn't even questioned. |
Again - your self-certainty is a little premature. The leading analysis is contained in the Judgment of the International Criminal Tribunal for the Former Yugoslavia in the case of Delalic et al. (I.T-96-21) "Celebici" 16 November 1998. All non-combatants have civilian status. You can read the relevant sections (paras 269-71) here.
I will quote the relevant part of the judgment:
Originally posted by ICTY:
...the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.
It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;
[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view. |
Unlawful combatant may be a phrase that has been used, but it does not denote a separate class of people who exist between POW and civilian - unless you are GWB and you decide that the court is wrong and that you have the power to ignore it and re-interpret the law unilaterally to suit your political purpose. |
Sorry, but your characterization of this as "the leading analysis" is not only self-serving and presumptuous, but contested. One European tribunal in 1998 can't simply change what has been the law for everyone else. The nature of international law, as you should know, is what nations have agreed-to -- either by custom, or by treaty. And, when and if enough nations begin to change their practice such that one can say that customary law has changed, that does not necessarily trump the established positions of other states. So, as I said, one rogue European left-wing tribunal making a decision does not change the law. And you don't get to proclaim it "the leading analysis" just because you like it.
Finally, your use of GWB as a label is offensive. Perhaps you would like me to refer to you as Ayatollah in deference to your tendency to give aid and comfort to your country's enemies?
Message edited by author 2007-04-02 13:00:09. |
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04/02/2007 12:54:35 PM · #84 |
Originally posted by Matthew:
Originally posted by OmanOtter:
Originally posted by Matthew:
there is a strong argument that unlawful combatant status does not exist - you are either a civilian or a combatant. People cannot fall outside the Geneva conventions - though that is the justification used by the US for Guanatanamo Bay. |
This is where you are simply and wholly wrong. Go do a little research on the International Law of Armed Conflict. Read the Geneva Conventions (all four of them) and the Hague Conventions. Study other authoritative sources as well. Unlawful combatant status isn't even questioned. |
Again - your self-certainty is a little premature. The leading analysis is contained in the Judgment of the International Criminal Tribunal for the Former Yugoslavia in the case of Delalic et al. (I.T-96-21) "Celebici" 16 November 1998. All non-combatants have civilian status. You can read the relevant sections (paras 269-71) here.
I will quote the relevant part of the judgment:
Originally posted by ICTY:
...the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.
It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;
[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view. |
Unlawful combatant may be a phrase that has been used, but it does not denote a separate class of people who exist between POW and civilian - unless you are GWB and you decide that the court is wrong and that you have the power to ignore it and re-interpret the law unilaterally to suit your political purpose. |
That judgment derives from a 1958 comment on the 4th GC made by the ICRC. If you consider that comment as law, it would include mercenaries as POW's. Thus the reasons for the later provision explicitly exempting mercenaries from POW status.
The fact is that despite the 1958 comment that person's captured by on the battlefield are either POW's or civilians is lacking, since clearly those defined as unlawful combatants do not fit the requirements for either POW or civilian. International law, in this area, is inadequate for modern conflict.
Message edited by author 2007-04-02 12:55:29. |
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04/02/2007 12:57:48 PM · #85 |
Originally posted by Matthew:
Unlawful combatant may be a phrase that has been used, but it does not denote a separate class of people who exist between POW and civilian - unless you are GWB and you decide that the court is wrong and that you have the power to ignore it and re-interpret the law unilaterally to suit your political purpose. |
The US doesn't support the ICC so it would follow that an ICC ruling would not trump an 'enemy combatant' designation created by internal US legislation (the millitary commisions act in 2006). It would also follow that the US would abide by its own legislation... But good job spinning that into some more spurious bush-bashing. |
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04/02/2007 06:02:13 PM · #86 |
Originally posted by OmanOtter:
Sorry, but your characterization of this as "the leading analysis" is not only self-serving and presumptuous, but contested. One European tribunal in 1998 can't simply change what has been the law for everyone else. The nature of international law, as you should know, is what nations have agreed-to -- either by custom, or by treaty. And, when and if enough nations begin to change their practice such that one can say that customary law has changed, that does not necessarily trump the established positions of other states. So, as I said, one rogue European left-wing tribunal making a decision does not change the law. And you don't get to proclaim it "the leading analysis" just because you like it. |
It is an international court established under the auspices of the UN (not the ICC - routerguy: good job on spinning that into spurious misdirection) - at the time of the case I referred to, presided over by a US judge. So labelling it as a "rogue European left-wing tribunal" is itself a slur mischaracterising the nature of the court.
I am sure that you understand what precedent is: this is the latest judgment of a leading international court interpreting that part of international law. Simply saying that the court is wrong because it rules against your political aims does not make it wrong. When a nation submits to an international body and the determinations of an international court, it does not get to change the application of the rules unilaterally - the only thing it can do unilaterally is disregard the international institution and/or the rule of law.
If a nation that upholds the rule of law wants to change the application of law, then it needs to change the law itself. For the reasons Spazmo pointed out, the law in question was subsequently modified to reflect changing circumstances in relation to mercenaries (and, incidentally, children). It is open for the US to persuade the other signatory states through the appropriate channels that any state should be allowed to deem nationals of other states as hostiles and hold them without access to any form of legal redress indefinitely. But it will not, because (IMO) that would mean that US citizens and undercover agents could legally be treated in the same way by other nations.
Originally posted by OmanOtter:
Finally, your use of GWB as a label is offensive. Perhaps you would like me to refer to you as Ayatollah in deference to your tendency to give aid and comfort to your country's enemies? |
I'm sorry - but you have misunderstood me. I said that the only person who considers themselves able to reinterpret the law appears to be GWB - I was not insinuating that you *are* GWB (though it is interesting that you take it as an insult... ; ) )
Message edited by author 2007-04-02 18:20:13.
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04/02/2007 08:27:49 PM · #87 |
Originally posted by Matthew:
But it will not, because (IMO) that would mean that US citizens and undercover agents could legally be treated in the same way by other nations.
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It's not uncommon for American undercover agents (and agents of other nations) that are exposed for what they are in foreign lands to be killed immediately.
That's been one of the biggest consequences of the actions of moles like Robert Hanssen; the death of undercover agents. They aren't captured and imprisoned, they're simply assassinated, usually after lengthy torture. |
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04/02/2007 09:10:39 PM · #88 |
Originally posted by Matthew:
It is an international court established under the auspices of the UN (not the ICC - routerguy: good job on spinning that into spurious misdirection) |
My bad. I thought you were saying the US should heed the rulings of an international court, not a war tribunal whose mandate extends only to crimes committed within the boundries of Yugoslavia since 1991... You grant the ICTY far broader powers than the Security Council did.
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04/02/2007 11:33:58 PM · #89 |
I misread what you typed Matthew: I thought you wrote "unless you're a GWB", not "unless you're GWB", thus using his initials as a label in an obviously derogatory manner. Unless you went back and edited the "a" out of there, I appear to have misread what you typed. As for your response to it, though, I didn't vote for him and I'm not one of his supporters. But I take enormous offense at your attacks on him.
I've concluded that you're the type of person who, once having made up his mind about an issue, will not change it over something as trite as facts. I'm getting exasperated arguing with you and offended by the haughty tone of your writing. Frankly, I'm starting to feel foolish about wasting my time on you.
I know lot's of fine British military here in Oman for whom I have great respect. Your willingness to betray your country by taking Iran's side in this saddens me for them. |
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04/03/2007 12:02:59 AM · #90 |
Originally posted by OmanOtter:
I know lot's of fine British military here in Oman for whom I have great respect. Your willingness to betray your country by taking Iran's side in this saddens me for them. |
I have read with avid interest all of the posts made to this thread and would never equate the comments made by Matthew as being a betrayal of his country.
From my perspective what he is offering is a diverging view from that which we are normally provided with in North America. It could be that his life's experiences have provided him with a viewpoint which takes into consideration the "Raison d'être" for the quagmire which prevails in the Middle East.
As I look upon the events which continue to unfold in these war ravaged lands, I am reminded of the saying: "The road to hell is paved with good intentions".
Ray
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04/03/2007 05:48:11 AM · #91 |
Originally posted by OmanOtter:
But I take enormous offense at your attacks on him. |
Please bear in mind that I am not attacking him personally - I am criticising in large part his foreign policy (and when I criticise his domestic politics it is in large part because they impact on his foreign policies). If you object to that, then I am shocked.
Originally posted by OmanOtter:
I've concluded that you're the type of person who, once having made up his mind about an issue, will not change it over something as trite as facts. I'm getting exasperated arguing with you and offended by the haughty tone of your writing. Frankly, I'm starting to feel foolish about wasting my time on you. |
I am not sure that you have demonstrated much of a willingness to change your mind, nor presented many facts that discredit my POV. FWIW, I am regularly informed by these debates (not least as to the reasons for opposing POVs - even if I still disagree with them) and have cause to go away and learn more in order to participate in them.
Originally posted by OmanOtter:
I know lot's of fine British military here in Oman for whom I have great respect. Your willingness to betray your country by taking Iran's side in this saddens me for them. |
Please put my comments into perspective. My initial response was to Flash's insinuation that we should be going to war with Iran over the capture.
I don't seek to justify Iran's actions, nor defend Iran from general criticism. I have tried to be a little more open minded as to the possible reasons for the capture than simply concluding that it was made because Iran is "bad" or evil. Apart from being somewhat simplistic, if that is one's starting point then diplomacy is somewhat irrelevant because it assumes no rational reason for the capture. In fact, we see the increasing likelihood that diplomacy will resolve the crisis peacefully - supporting my contention.
I have not said that Iran was justified in taking the soldiers, nor that we should do anything other than strive for their return - including militarily if the situation were to deteriorate significantly. However, I have been criticised for giving my strong support for sustained diplomatic pressure rather than adopting a militarily agressive stance, and for refusing to condemn the Iranian state as irrational and evil and incapable of being reasoned with.
Personally, I think that it is quite unpatriotic to be unquestioning of one's leaders - a modern democracy requires it to be effective.
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04/03/2007 06:04:01 AM · #92 |
Originally posted by routerguy666:
My bad. I thought you were saying the US should heed the rulings of an international court, not a war tribunal whose mandate extends only to crimes committed within the boundries of Yugoslavia since 1991... You grant the ICTY far broader powers than the Security Council did. |
A basic premise of the rule of law is that governments (or as here, supra national organisations) make laws and courts interpret and apply them. The government does not get to interpret and apply laws arbitrarily.
You appear to be arguing that the US governmental interpretation of this international law is the "correct" one. However, the government does not usually get to make this determination - the courts do.
Courts applying the law would be either bound by the earlier ruling under the principle of precedence, or at least heavily persuaded by the earlier ruling so as to apply the law consistently. The fact that the ICTY is a senior international court with specialism in the application of these rules makes its ruling more persuasive than usual on all other courts applying the same rules (I don't have time to research whether/when that court is binding or persuasive - if anyone knows, I would be interested to find out).
So, whether you like it or not, the case is a leading case on the interpretation of those laws, it will be binding or highly persuasive on other courts and, to the extent that the US disregards those laws, it is in breach of its international commitments and the rule of law.
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04/03/2007 09:06:36 AM · #93 |
Originally posted by Matthew:
[Please put my comments into perspective. My initial response was to Flash's insinuation that we should be going to war with Iran over the capture. |
The small correction I would make here would be to replace the word should with "be prepared to". This preparation would of course be both physically (logistically) and mentally. Although I am heartened to read that you support military action if needed, I am not convinced that you are/were mentally prepared to support such action.
Originally posted by Matthew:
I have not said that Iran was justified in taking the soldiers, nor that we should do anything other than strive for their return - including militarily if the situation were to deteriorate significantly. However, I have been criticised for giving my strong support for sustained diplomatic pressure rather than adopting a militarily agressive stance, and for refusing to condemn the Iranian state as irrational and evil and incapable of being reasoned with.
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You have summed it up pretty well. Especially the "refusing to condemn the Iranian state as irrational and evil and incapable of being reasoned with". Negotiating from a position of strength is a basic premise in Sun Tzu's "The Art of War". The time to be nice is first and last, but rarely in the middle. The Brits were nice in the beginning when they chose not to actively defend their capture. IOW, not engage the attacker - kind of like a woman not resisting the advances of an unwanted suitor. Be nice. However, at some point, she will either be drawn past a point of no return, or aggressively decide to not be nice any longer. After the threat is past, she can be nice again. We may have reached that stage in this event - only time will tell. However, imo, the current niceties were only possible due to the show of strength and willingness to use it.
In the book titled "Leadership Secrets of Attila the Hun" by Wess Roberts, PhD. [ISBN 0-446-39106-9] it is written; "Huns may enter a war as a result of failed diplomacy; however, war may be necessary for diplomacy to begin."
Message edited by author 2007-04-03 09:21:17.
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04/03/2007 10:27:27 AM · #94 |
Iranian released
Perhaps hostage exchange was the goal from the beginning.
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04/03/2007 10:49:14 AM · #95 |
Originally posted by Flash:
Although I am heartened to read that you support military action if needed, I am not convinced that you are/were mentally prepared to support such action. |
Where we probably disagree would be at what stage military action would be necessary. If Iran were to materially mistreat the prisoners, then the position would be very different.
One point that I keep on coming back to in various discussions (because it is so important) is that foreign hostages are being kept at a standard below that required by international human rights law in Guantanamo Bay (whether you regard that as legally sanctioned or not, and whether you consider the mental or "soft" torture to be "real" torture or not). Some of them are probably innocent of the charges levelled against them. If we are concerned about the capture of soldiers who appear to be well treated, then does it not make sense that the imprisonment and mistreatment of foreign nationals in Guantanamo causes a similar degree of resentment elsewhere?
Originally posted by Flash:
You have summed it up pretty well. Especially the "refusing to condemn the Iranian state as irrational and evil and incapable of being reasoned with". Negotiating from a position of strength is a basic premise in Sun Tzu's "The Art of War". The time to be nice is first and last, but rarely in the middle. The Brits were nice in the beginning when they chose not to actively defend their capture. ...
In the book titled "Leadership Secrets of Attila the Hun" by Wess Roberts, PhD. [ISBN 0-446-39106-9] it is written; "Huns may enter a war as a result of failed diplomacy; however, war may be necessary for diplomacy to begin." |
Your historical analysis is an interesting take on it.
I think that there has been a period of hardening of the diplomatic position and we are moving back towards a mutually conciliatory stage at the moment - hopefully productively. I agree that hostage exchange is one very probable aim of Iran in the current engagement.
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04/03/2007 11:12:36 PM · #96 |
Originally posted by Matthew:
Originally posted by routerguy666:
My bad. I thought you were saying the US should heed the rulings of an international court, not a war tribunal whose mandate extends only to crimes committed within the boundries of Yugoslavia since 1991... You grant the ICTY far broader powers than the Security Council did. |
A basic premise of the rule of law is that governments (or as here, supra national organisations) make laws and courts interpret and apply them. The government does not get to interpret and apply laws arbitrarily.
You appear to be arguing that the US governmental interpretation of this international law is the "correct" one. However, the government does not usually get to make this determination - the courts do.
Courts applying the law would be either bound by the earlier ruling under the principle of precedence, or at least heavily persuaded by the earlier ruling so as to apply the law consistently. The fact that the ICTY is a senior international court with specialism in the application of these rules makes its ruling more persuasive than usual on all other courts applying the same rules (I don't have time to research whether/when that court is binding or persuasive - if anyone knows, I would be interested to find out).
So, whether you like it or not, the case is a leading case on the interpretation of those laws, it will be binding or highly persuasive on other courts and, to the extent that the US disregards those laws, it is in breach of its international commitments and the rule of law. |
The ICTY has a limited jurisdiction and mandate. The only person giving it broad reaching international powers is you. While ICTY rulings and deliberations may be food for judicial discussion and case law arguments, its decision are in no way binding upon anyone or any nation outside of the former Yugoslavia. I'm unclear how this could be taken otherwise. |
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04/03/2007 11:23:25 PM · #97 |
Originally posted by Matthew:
Originally posted by Flash:
Although I am heartened to read that you support military action if needed, I am not convinced that you are/were mentally prepared to support such action. |
Where we probably disagree would be at what stage military action would be necessary. If Iran were to materially mistreat the prisoners, then the position would be very different.
One point that I keep on coming back to in various discussions (because it is so important) is that foreign hostages are being kept at a standard below that required by international human rights law in Guantanamo Bay (whether you regard that as legally sanctioned or not, and whether you consider the mental or "soft" torture to be "real" torture or not). Some of them are probably innocent of the charges levelled against them. If we are concerned about the capture of soldiers who appear to be well treated, then does it not make sense that the imprisonment and mistreatment of foreign nationals in Guantanamo causes a similar degree of resentment elsewhere?
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Well treated???
Held at gunpoint and paraded on television?
Forced to make false confessions under severe duress?
Essentially humiliated in public?
Say what you will about the conditions at Guantanamo, but what is being done to those hostages in Iran can hardly be classified as being well treated.
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04/04/2007 08:45:21 AM · #98 |
Originally posted by routerguy666:
The ICTY has a limited jurisdiction and mandate. The only person giving it broad reaching international powers is you. |
I am not attributing it with any jurisdiction or mandate in relation to the US and Guantanamo. I don't say that it has any broad reaching international powers.
I do say that it has the authority to interpret the Geneva Convention and its decisions, rulings and judgments will affect all other courts interpreting those same rules, including those courts that do have jurisdiction to rule on the US actions at Guantanamo.
Originally posted by routerguy666:
While ICTY rulings and deliberations may be food for judicial discussion and case law arguments, its decision are in no way binding upon anyone or any nation outside of the former Yugoslavia. I'm unclear how this could be taken otherwise. |
When a court interprets and applies legislation, it first considers whether it is bound by precedent. Precedent is a common law principle and means that higher courts within a judicial system bind lower courts. For example, in the UK, for most common law issues the high court is bound to follow the decisions of (in order) the Court of Appeal, the House of Lords and the European Court of Justice.
In civil law systems and where there is no binding precedent in common law systems, the court may review other decisions of other courts in respect of the same or similar legislation. That may be persuasive, because the courts seek to apply a principle of the rule of law that laws should, where possible, be interpreted consistently.
For example, the UK court frequently considers the decisions of the high courts of commonwealth jurisdictions to see how similar legislation is interpreted in those countries. The decisions of senior courts in other jurisdictions may be very persuasive.
What I am not sure about is the extent to which the ICTY is binding on other courts of various kinds. However, in any case, the decision would be highly persuasive as to how that part of the convention should properly be interpreted and applied. A court would have to have very significant reasons, or a significantly different set of facts, to come to a different conclusion.
Even if (for some reason beyond me) the decision I quoted were ignored by a court reviewing that part of the Geneva Convention, at the very least it gives an indication of how a court when faced with the task of interpreting that law would/should go about it and the judgment it is likely to reach.
Hopefully this explains why the ICTY judgment is relevant to how the Geneva Conventions are interpreted in all jurisdictions.
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04/04/2007 09:47:18 AM · #99 |
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04/04/2007 10:07:50 AM · #100 |
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