OxBlog

Friday, December 29, 2006

# Posted 9:49 AM by Taylor Owen  

WIDER IMPLICATIONS OF SADDAM’S DEATH SENTENCE: That Saddam has been tried for past atrocities is in most respects a positive development for Iraq. The use of capital punishment, however, might be symbolic of a systemic flaw in the US approach to the occupation since the fall of Baghdad.

With self-serving mea culpas abound, and more and more people taking a stern realist tack from desired to possible outcomes, core principles that have led to the current humanitarian disaster deserve to be challenged.

Simply blaming the disbanding of the Army, or the incompetence of pre-pubescent CPA advisors is not sufficient, nor particularly productive save for those distancing themselves from a policy they staked their worldview on.

The singular moment in which the peace was lost must be seen to be linked to the gross failure of legitimacy following the fall of Baghdad. Much like a similar moment in Afghanistan, most Iraqis were likely willing to give the occupying regime a chance. However, legitimacy was crucial, and here is where Blair (in a very Beinartian manner) got it right, and Bush went disastrously wrong.

Blair advocated strongly for a shift to UN control immediately following the successful invasion. He realised, like many in the international community, that it would be crucial to internationalize the post-war reconstruction and peacebuilding and that the UN, despite its many flaws, was the best instrument for such a project. This was rebuked by the US, who wanted to retain complete control over the transition, to disastrous effect.

So what does this have to do with the Saddam death sentence? International legitimacy. Most of the world, as well as virtually every international rights organization, is against capital punishment. Whether or not this position is correct is beside the point. What is crucial is this is seen as another reason why the international community is reluctant to get engaged in what is overwhelming considered an ‘American problem’. These small things add up.

If the US had cared about international legitimacy, Saddam would have been tried for war crimes in the Hague or through an ad hoc tribunal established in Baghdad. There is of course the problem that one cannot be tried for crimes committed before the establishment of the ICC, a term ironically included to placate US opposition to the court, so the trial of Saddam would have been more difficult, but the results certainly more legitimate.

Perhaps it is too late to undo this mistake, so one can only hope that they will not be broadcasting his death on television. This would simply be a further affront to the decency one would hope will emerge is the war stricken country.

More generally and following from this, in my opinion, the entire Iraq project desperately needs to be internationalised. I do not believe that the US alone has either the tools, nor the political will to implement and see out the multi-decade peacekeeping, peacebuilding, and reconstruction project that the Iraqi mission has become.

This should have been done three years ago. It is still, however, essential, particularly with the growing call for US withdrawal. Recognizing the international implications of putting Saddam to death, would be a good place to start in beginning to shift the control of the Iraq mission to those best suited for the task.


UPDATE: Plus ca change...



UPDATE 2: Hitch concludes:
It would have been no offense to justice if Hussein had been sentenced to spend the rest of his days in prison without the possibility of parole, but it would represent a break with that sanguinary tradition. And it might be no bad thing if Americans, especially those who supported the breaking of his death grip on Iraqi society, found ways of conveying their distaste for this rushed and vindictive — and partial — version of a process of reckoning that ought to have been sober, meticulous and untainted.
(36) opinions -- Add your opinion

Comments:
This would all be a fair point - except that it overlooks something crucial. The lack of interest in international legitimacy was intrinsic to the project from the moment the war was conceived. The Administration (and many of their cheerleaders in the press and on the Internet) simply didn't care that much of the world regarded the invasion as illegal - indeed, ignoring and mocking international objections became a badge of pride among war supporters. The only reason the UN route was even tried in the first place was to provide some political cover for Tony Blair, and when it failed they went ahead regardless.

If the Administration had cared about international legitimacy they would not have launched the war in the first place; having launched it and (as they thought) succeeded, they were not disposed to let the international community influence the outcome. And by the time it became apparent to them that international help might actually be useful, they had already made such a hash of running the country that opponents of the war had little incentive to become involved in cleaning up America's mess for her.

And that, I fear, is the problem with your otherwise admirable proposal to internationalise the situation in Iraq now. Do you really believe that France or Germany (say), let alone Russia or China, has the slightest inclination to spend their own money and risk their own troops in saving America from the consequences of her own folly? Do you think that French or German public opinion would accept such an outcome?
 
Amfortas overlooks twelve years of history. Almost daily, Hussein violated the UN cease-fire with military action against UN forces in Iraq. Each military action was an act of war. There are many reasons to oppose the Iraq War, but claims of illegality are inconsistent with the written law.

I’ve traveled to the UK many times, and I have encountered many people who make claims about international law. Invariably, these people have never read the law. They simply believe various NGO interpretations of the law. For example, consider the “international community’s” inability to grasp the plain meaning of ‘legal combatant’ in the Geneva Conventions.

Notably, the “international” community always interprets “international law” in ways that constrain the US.

This explains, for anyone with an open mind, why so many Americans “simply didn't care” about “international objections.” Indeed, most Americans still don’t care. They correctly judge that the codeword ‘international’ really means “anti-American Left.” So, in this regard amfortas is correct, by and large Americans don’t care about “international legitimacy” if it entails kneeling to groups that seek the downfall of America altogether.

The question ought to be turned back onto the “international community.” After twelve years of funding a sanctions regime and an occupation force, did the “international community” really expect the US to ignore indefinitely Hussein’s flagrant violations? For twelve years, Hussein violated international law and skirted “international legitimacy,” yet all the “international objections” were directed at the US. Why?

This issue is situated in a larger context. The US still maintains an expensive force in the former Yugoslavia, bailing out Europe’s failed military action there. The US intervention stopped acts of genocide, acts of mass murder committed literally under the nose of European forces in Europe. The US had absolutely no national interest in the intervention. The “international objections” were so very quiet then.

Many Americans interpret the situation this way: we helped Europe, but now Europe won’t help us. Many Americans have come to see Europe as a Cold War enemy.

That’s why many Americans ignore the “international community.” You can be sure Europe’s actions in the last five years will solidify that attitude even more.
 
Jeff:
Actually, my point was more about Europeans' (and others') perceptions of international law, than about the reality. The reason it matters not to be perceived to be in flagrant violation of international law is adequately stated by Taylor Owen: that the US is not equipped to (and probably was never equipped to) do what was necessary in Iraq by itself, and if you are flagrantly contemptuous of other people's understanding of international rules, then they are unlikely to be well-disposed towards helping you when you need them.

But you are, I fear, in any case exhibiting part of the problem by your own overstatement of your position. Plenty of people who are well-acquainted with the written rules of international law concluded that the US's invasion of Iraq was illegal: I might mention Philippe Sands, Professor of International Law at University College London, as a prominent example (see his book "Lawless World" (New York, 2005)). Nor is he alone in this opinion: I point you to http://www.guardian.co.uk/Iraq/Story/0,2763,909314,00.html; a letter signed by a group of international lawyers from leading British universities protesting the war as illegal.

You may argue with their opinion if you like - and I would not want to suggest that there is no possible justification for claiming that the war was legal. But if you are seriously claiming that these major international lawyers have "never read the law" or "simply believe various NGO interpretations of the law" - then you are frankly claiming something so ludicrous as not to be taken seriously.

On "the plain meaning of legal combatant in the Geneva Conventions", you have, I fear, failed to appreciate the force of the legal objections. Certainly it is possible that many of the people incarcerated by the US are not legal combatants, and so not protected by the Third Geneva Convention. But in that case they are civilians protected by the Fourth Geneva Convention, which has different but in many respects even more stringent rules on how they may be treated. There are no gaps between the Third and Fourth Geneva Convention: people (leaving aside medical personnel, who are protected by other rules) must fall into one or the other category. You don't have to take my word for this: it is enshrined in the official commentary on the Fourth Geneva Convention, paragraph 4:

"Every 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."

In other words, when the Bush Administration tried to invent an intermediate status of "unlawful combatants" and treat them in a manner compatible with none of the Geneva Conventions, they were trying a crude dodge which had been spotted and explicitly ruled out when the conventions were drafted. And that is why the whole situation in Guantanamo Bay et al. is plainly illegal, and why American attempts to defend it have done more damage to the reputation of the US even perhaps than the war itself.
 
pubesant = pubescent

Iraqi’s = Iraqis

undue = undo
 
In a world where the UN actually did its job, perhaps this effort could have been internationalized a long time ago. But it was the UN that pulled out of Iraq when things got rough. And it has been the UN's main peacekeeping contributors who either refused to volunteer troops after any American soliciations, or who have pulled out due to populist tides within their own countries. I would have loved to see a UN reconstruction effort, and I still welcome it now. But something in the back of my mind keeps on nagging me to be realistic about my expectations of the UN.
 
Amfortas:

Who is not covered by the Geneva convention.

Which of the four upgrades to the conventions has the US ratified.
 
Amfortas, we are in accord in making points “more about Europeans' (and others') perceptions of international law, than about the reality.” I fear you have misjudged my comments.

You correctly explain that “if you are flagrantly contemptuous of other people's understanding of international rules, then they are unlikely to be well-disposed towards helping you when you need them.” I agree. So don’t be surprised when the US government is ill disposed towards contemptuous European governments. You, and Europeans in general, engage in a kind of question-begging fallacy. Neither you, nor Europeans in general, possess the truth. Y’all are not right by right. Europeans often fail to realize this elementary point. Americans are ill-disposed towards Europe precisely because of thirty years of open contempt from European governments. I agree with your warrant, but you seem to apply it only one way — an anti-American way — but it works just as well in an anti-European way.

Trust me. You haven’t experienced a contemptuous hypocrisy until a Frenchmen accuses you of being arrogant, or a German accuses you of being “uninterested in dialog.” [Both of those are from personal experiences.] The Americans I know simply laugh. Indeed, the constant charges of hypocrisy from European hypocrites are a kind of super-hypocrisy. Americans have simply ceased to take Europeans seriously. It’s an unfortunate by product of “flagrant contempt” directed not just at the American government but also at the American people. It’s unfortunate, but very real.

Now you may not take this statement, “I have encountered many people who make claims about international law,” to mean this, “major international lawyers have ‘never read the law’ or ‘simply believe various NGO interpretations of the law.’” I think a reasonable person would have realized that I was commenting on the perception of the man in the street. I think your characterization is unreasonable. I’m talking about perceptions of the common variety.

I accept your criticism, “you have, I fear, failed to appreciate the force of the legal objections.” Will you accept mine? I believe you have failed to grasp the force of the US governments position. The ICRC (not an America-loving institution!) published a position paper on IHL in the war on terrorism. It states, “In non-international armed conflict combatant status does not exist. Prisoner of war or civilian protected status under the Third and Fourth Geneva Conventions, respectively, do not apply. Members of organized armed groups are entitled to no special status under the laws of non-international armed conflict and may be prosecuted under domestic criminal law if they have taken part in hostilities. However, the international humanitarian law of non-international armed conflict - as reflected in Common Article 3 of the Geneva Conventions, Additional Protocol II to the Geneva Conventions where applicable, and customary international humanitarian law – as well as applicable domestic and international human rights law all provide for rights of detainees in relation to treatment, conditions and due process of law.” Geneva defines international armed conflict as one among states. Hence, al-Qeida fighters are not entitled to protection under Geneva.

You have presented your case with the question-begging fallacy once again. The American position is not at obviously wrong as you assume. Europeans are not as obviously correct as you warrant.

Look. I’ve traveled extensively in Europe. In Europe, the US has had NO reputation whatsoever for decades. There is no reputation to save. Europe fails to grasp the danger of this situation. The US had nothing to lose by ignoring Europe. America’s engagement with a dogmatic, hypocritical Europe is not tenable in the long term — neither for the government nor for the people.
 
In a world that had a rather different UN, calls for UN involvement in Iraq would have some force, I think. But such calls are always undermined by the fact that we must deal with this world's UN, and the UN is a remarkably corrupt institution, largely controlled by kleptocrats and dictators who would have been Saddam's natural ally.

How can someone say we should have involved the UN, without looking at the reality of the Food for Oil bribery scandal, for instance?
 
Amfortas: While I agree with you that legitimacy was never valued, this doesn't change the fact that it is still direly needed. The tough part of course, as you point out, will be getting other countries involved, and you may be right that it is impossible. If so, however, then I believe Iraq will remain a disaster. Perhaps international involvement will only be feasible after the US have left. If the county is in complete civil war, and the US has largely pulled out, there may be room for a peacemaking force, something similar to the peacekeeping force that should have been in place after the fall of Baghdad, but of course now far more robust. One place where I fundamentally agree with the neocons is that leaving Iraq in large scale civil war will have significant international implications. If this happens, I believe the international community will step in. They will not do it under direct US control though. This was the debate after the fall of Baghdad. The one that Blair perilously lost. Had the UN been in control of the peacekeeping and governance transition, they would not have left. My point about Saddam death, however, was a bit more general. If one believes that this effort MUST be internationalised to succeed, then the US must start making gestures to those whose help they need. One gesture would have been a proper trial. Opportunity lost I suppose.
To the various UN slighters. The UN is the sum of its nation state parts. By far the most significant state within it is the US. The failures of the UN are also the failures of the US. Brett, this notably includes oil for food. Also, do you really want to get into an oil for food discussion. Talk about strawman. It might be worth doing a quick comparison of the total amount lost in oil for food, versus total Iraqi money that disappeared once it was transferred from UN to US control? Let's be carefull with our "kleptocrat" labels...
Anon: 5:06 - want to proofread my thesis?
 
"peacekeeping force that should have been in place after the fall of Baghdad, but of course now far more robust"

Without US participation, which countries have the military resources to have a "robust" force?
 
This is such a hack site.
 
This seems very unpersuasive to me. The UN is against nuclear proliferation, but the Iranian government seems singularly unmoved by the enormity of its actions in resisting the UN. Similarly, the Israeli government seems singularly (except I guess it's not so singular!) unmoved by the UN's denunciations of its various actions. What possible reason is there to believe that the agents of the Iraqi insurgency would be moved in the slightest by fear of offending the UN?
 
Jeff:
I suspect we are more in agreement than you may think. I agree that even before the Iraq War etc. there was a lot of anti-Americanism in Europe - most of it misguided. But "the US has had no reputation to lose" is a gross caricature. The US had many, many friends in Europe; it has many fewer now. If you want evidence, simply look at the difference between European (popular as well as government) support for the US over Afghanistan, and the lack of support over Iraq. American behaviour does make a difference.

But more importantly, I think you have badly misread that ICRC position paper. The paragraph you quote applies only to "non-international armed conflicts", and those are defined in the first paragraph as involving "hostilities between government armed forces and organized armed groups or between such groups within a state" (italics mine)

In other words, that paragraph is saying that if (e.g.) armed (but unlawful) combatants are taken prisoner by Iraqi forces in Iraq, they are not covered by Geneva, but only by Iraqi domestic law (which does however have to conform to Additional Protocol II of the Geneva Conventions, which provides for things like the rules for a fair trial).

However, that paragraph does not apply to (e.g.) people captured by the US in Afghanistan, whether lawful combatants or unlawful, since that was a conflict between two states, and hence an international conflict. Hence no one detained at that time is covered by the paragraph you quote: they are covered by the previous paragraph (which you do not quote), which says exactly what I said in my previous post: that those detained fall under the Third Geneva Convention (if lawful combatants) or Fourth (if unlawful). The US has grossly and systematically violated this.

As for Al Qaeda members picked up in areas outside armed conflicts (in Pakistan, say), they are not covered by this position paper at all (as it points out in the second paragraph). Those people are not covered by the Geneva Conventions (which deal only with armed conflicts). But they are then covered by the International Covenant on Civil and Political Rights, which gives such people the right of habeas corpus, the right to be immediately charged, the right to see the evidence against them, and, oh, lots and lots of other rights that the US has systematically been denying the people it has taken captive.

So all in all, if that is the US government's position (I have to say that I haven't seen any US government spokesman citing this, but that may be because I wasn't looking hard enough), it doesn't provide even a vague outline of legality.

Which brings me to my final point. The symmetry you draw between the US's rejection of Europe's position and Europe's rejection of the US's is a good point as far as it goes. But it overlooks two things. First, the situation in Iraq in which the US seems to need Europe's help is a direct consequence of acts that Europeans regarded as illegal; the converse is not true. Hence Europeans are likely to be particularly unwilling to help the US here, even though in other matters both sides could simply agree to disagree and cooperate.

Second, one has to consider how well-founded the different positions are. With the invasion of Iraq, although many international lawyers (as I noted in my previous post) argued for it as illegal, there are some who have argued for its legality. The US's case here is not ludicrous, and one could reasonably take either side.

But with Guantanamo Bay and so on, the US's position is frankly ludicrous. I have not seen even a vague outline of a case that Guantanamo is not in blatant violation of the most basic rules of international law. Which is why I said in my previous post that it is Guantanamo, even more than Iraq, that has done and continues to do the most damage to the US's reputation.
 
Before the present Bush administration the "international community" had been able to deploy and withhold the U.S. military without taxing their own people for a military establishment (which amounts to anything), and without any respect for the U.S. taxpayers. So, yes, it is a joy to tell those s.o.b.'s we don't care what they think any more, that we have saved their bacon so many times already they should be ashamed of themselves, and so forth. As for Saddam's execution, this really should not bear on any death penalty arguments because so many in Iraq could not stop fearing (or wishing for) a restoration so long as he was alive. He was a monster who deserved execution if anyone ever did, and we can all agree on that.
 
"To the various UN slighters. The UN is the sum of its nation state parts."

Precisely, and given the nature of so many of those nation states, what could be said that was more damning?
 
I agree Taylor; you make some very good points about the symbolism the execution evokes. Hanging Saddam is unlikely to bring anything good to the fiasco in Iraq and the political climate throughout the Middle East and the world. Plus, using capital punishment isn't exactly the greatest start for Iraq's justice system.

(I posted in-depth about the Saddam Hussein execution on my blog.)
 
What must be said is that a sizable section of American opinion does not accept the legitimacy of international law.

Read "international law" as "anti-American lawyer b'||$#!+" and you pretty much have it downpat.

We're giving Amfortas a lot of grief here, but he's factually right.

The fact (stipulated, I don't know if it's true or not) that francs-tireurs, pirates, and terrorists enjoy either Third or Fourth Article Geneva Convention protection, is to say that the Conventions are flawed, not that America should extend POW or criminal defendant status to international terrorists.
 
And by the way, if we had turned Saddam over to an international tribunal at the Hague, he would have died of old age before he was ever convicted.
 
So don’t be surprised when the US government is ill disposed towards contemptuous European governments.

The contempt that you mention certainly wasn't there with Bush père in the Gulf War. It wasn't there with Clinton in the Bosnian campaigns. It wasn't there after 9/11 or with Afghanistan. But the international community saw the Iraq invasion for what it was and saw that it had nothing to do with WMDs or terrorism.

Instead, you are mistaking cause and effect. Yes, the Europeans (and much of the rest of the world) have become contemptuous of the US to the glee of our competitors, China and Russia.

The effect has been this contempt you mention. The cause was a deceiving unilateralism. And now that the deceptions have been laid bare and now that unilateralism has failed, Taylor proposes that the entire Iraq project desperately needs to be internationalised.

Sure, but do you really think that anyone trusts W, either his word or his abilities?
 
Amfortas, you are wrong. Non-international conflict is either within one state, or it is between government forces and non-government forces. The ICRC statement is unequivocal on the point: “Non-international armed conflict involves hostilities between government armed forces and organized armed groups or between such groups within a state.” You missed the left side of the disjunction. Indeed, the ICJ at the Hague used this principle as the basis for its advisory ruling against the wall erected by the Israelis. Your approach is ironically emblematic of the European’s.

The US is entitled to prosecute captured al-Qeida according to rules of US jurisprudence. The only thing that’s been “grossly and systematically violated” is honest readings of the law.

You have made some outlandishly hyperbolic statements about the contents of the International Covenant on Civil and Political Rights (ICCPR). First, you write the ICCPR “gives such people the right of habeas corpus,” but ‘habeas corpus’ is nowhere mentioned in the text of the ICCPR. The covenant merely prescribes that “anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”

You wrote that the ICCPR gives “ the right to be immediately charged,” but this also is nowhere in the text. The ICCPR only prescribes that “anyone arrested or detained…shall be entitled to trial within a reasonable time or to release.” You made up the word ‘immediate.’

You wrote that the ICCPR gives detainees “the right to see the evidence against them,” but this also is nowhere in the ICCPR. In fact, the ICCPR prescribes the right “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

I freely admit that the detainees have not been accorded all the rights you want them to have, but the Guantanamo detainees have been accorded every right to which they are entitled under IHL. That’s the IHL, not the fantasy you have presented here.

You wrote, “I have not seen even a vague outline of a case that Guantanamo is not in blatant violation of the most basic rules of international law.” If this is true, then I suggest you read “International Law and the War on Terrorism” by John Yoo. It is neither “vague” nor “in blatant violation.”

You wrote, “the situation in Iraq in which the US seems to need Europe's help is a direct consequence of acts that Europeans regarded as illegal; the converse is not true.” But this is obviously false. In Yugoslavia, European troops failed to stop act of genocide, in some cases within 100 meters of their own fighting positions. The US stilled helped out because the humanitarian consequences were huge. Continental Europe by contrast says it cares about all manner of humanitarian issues in Iraq, but lifts not a finger. The US didn’t let political quibbles with Europe stop assistance. Europe is. It’s not defensible on humanitarian grounds.

While I grant you may have honest intentions, very little of what you have written is defensible on any ground whatsoever.
 
anonymous coward wrote, "Instead, you are mistaking cause and effect. Yes, the Europeans (and much of the rest of the world) have become contemptuous of the US to the glee of our competitors, China and Russia."

First, unilateral has come to mean “without Europe’s consent.” When Europe goes off on international adventures the US opposes, somehow Europe never gets accused of unilateralism. That’s why most Americans find it so hypocritical for a nation like France to start making accusations of unilateralism. Was Europe acting unilaterally when it ratified Kyoto over US objections? Accusations of unilateralism are the last refuge of a weak argument.

But his analysis is typical. The US is seen as some kind of prime mover. Europeans seem to think that the US never reacts. America didn’t just go off the rails and adopt a “unilateral” foreign policy. US foreign policy changed after the formation of the new EU and the fall of the Soviet Union. European and US interests have diverged into a Cold War. Certainly, it’s very, very cold. But its showing the effects of global warming.

Charges of unilateralism go both ways, but Europeans are congenitally unable to see that. They still beg the question by assuming that they are in possession of the truth, that any nation with different interests is acting unilaterally — because surely the multilateralists are with Europe. What hubristic tripe.
 
First, unilateral has come to mean “without Europe’s consent.”

Perhaps to you. But the $61.1B Gulf War was underwritten by Kuwait, Saudi Arabia, Germany and Japan. It cost the US $8.1B. That's multilateral. The war in Afghanistan is a NATO operation. That's multilateral.

When Europe goes off on international adventures the US opposes, somehow Europe never gets accused of unilateralism.

An example please?

... Was Europe acting unilaterally when it ratified Kyoto over US objections?

Uh, no. They were ratifying a treaty, which is by its very nature a multilateral act. This should be obvious.

Accusations of unilateralism are the last refuge of a weak argument.

I don't need to accuse the Bushies of unilateralism.
 
Jeff: I'm going to address your points one at a time, interspersing (some of) your paragraphs (in italics) with my comments. I hope that's OK.

Amfortas, you are wrong. Non-international conflict is either within one state, or it is between government forces and non-government forces. The ICRC statement is unequivocal on the point: “Non-international armed conflict involves hostilities between government armed forces and organized armed groups or between such groups within a state.” You missed the left side of the disjunction.

No: you have misconstrued the grammar of the sentence. The phrase "within a state" applies to both parts of the disjunction. That is clear for two reasons: (a) that it is called "non-international" (this phrase explains why); and (b) because the position paper specifically mentions the wars the US fought in Afghanistan and Iraq as examples of "international conflicts", and then goes on to talk about non-legal combatants who might be detained in the course of such a war. Which is precisely the position of a large proportion of those in Guantanamo.

Indeed, the ICJ at the Hague used this principle as the basis for its advisory ruling against the wall erected by the Israelis. Your approach is ironically emblematic of the European’s.

I've no idea where you get this from. The ICJ based its ruling against the Israeli security fence primarily on violations of the Fourth Geneva Convention: the ruling repeatedly refers to that Convention as the applicable part of IHL (esp. in paragraphs 91-101, where the point is considered at length; also e.g. paras. 125-6). It also discusses the applicability of other conventions, notably the International Covenant on Political and Civil Rights; but it never (as far as I can see) refers to this as a non-international conflict to which the rules you quote above would apply. Indeed, since the Fourth Geneva Convention only applies to international conflicts, it follows that the ICJ MUST have regarded the situation in the West Bank as an international conflict.

You have made some outlandishly hyperbolic statements about the contents of the International Covenant on Civil and Political Rights (ICCPR). First, you write the ICCPR “gives such people the right of habeas corpus,” but ‘habeas corpus’ is nowhere mentioned in the text of the ICCPR. The covenant merely prescribes that “anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”

You are right that the actual words "habeas corpus" never appear. But you are wrong that the paragraph you quote is all that it prescribes. The covenant ALSO prescribes (art. 9 para. 4) that "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." That is a summary of the "habeas corpus" procedure; I used the latter term for succinctness. But if you prefer not to use the term, that is fine; the US has not provided all those it detained with the opportunity to take proceedings before a court to rule of the lawfulness of their detention - on the contrary, it kept a number of them in secret prisons for years with no access to courts of any sort.

You wrote that the ICCPR gives “ the right to be immediately charged,” but this also is nowhere in the text. The ICCPR only prescribes that “anyone arrested or detained…shall be entitled to trial within a reasonable time or to release.” You made up the word ‘immediate.’

No: again you are quoting the wrong provision. The correct one is the one you quoted yourself above: let me remind you: "Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." If you would rather I said "promptly" than "immediate" that is fine - though they have to be told the reason for their detention immediately (= "at the time of his arrest"), even if the formal charge is slightly delayed. Either way, the US has systematically violated it: there are people in Guantanamo who still do not know the charges against them after several years, which is hardly "promptly". (See today's NY Times for a graphic account of one such case.)

You wrote that the ICCPR gives detainees “the right to see the evidence against them,” but this also is nowhere in the ICCPR. In fact, the ICCPR prescribes the right “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

Here you are correct: I overstated the case. However, even that more limited right has still been systematically denied people by the US. (Again, today's NY Times offers an illustration.)

I freely admit that the detainees have not been accorded all the rights you want them to have, but the Guantanamo detainees have been accorded every right to which they are entitled under IHL. That’s the IHL, not the fantasy you have presented here.

I hope that the above is enough to demonstrate that the Guantanamo detainees have not received even close to the rights they are entitled to under IHL.

I have not read John Yoo's book; though I have read several articles by him on Guantanamo, they did not address the position in IHL (they were more interested in the authority of the executive and the courts to rule under US domestic law). If you tell me that his book does make a case, I clearly should read it: I hope it is better than the case you have been summarising.

On your last paragraph, are you suggesting that the US regarded European inaction in Yugoslavia as illegal (as opposed, say, to immoral, or impolitic)? On what grounds?

By the way, going back to your first point (way back when!) about European attitudes to the US, I wonder if you saw the report of the Pew Global Attitudes poll in today's NY Times. It takes various countries, and compares their views of the US in 2000 to the views they hold today. In 2000 78% of Germans had a favourable view of the US; today it is 37%. In France it has gone down from 62% to 39%, in Spain from 50% to 23%, in Britain from 83% to 56%.

This seems to support two of my suggestions: (a) that while anti-Americanism has always existed, it was (contrary to your experience) a minority view in most of Europe; and (b) that the actions of the Bush administration have alienated so many people that that minority view has become a majority.
 
No: you have misconstrued the grammar of the sentence. The phrase "within a state" applies to both parts of the disjunction.

No sir. You fail to grasp the distinction between a restrictive and a non-restrictive phrase. No offense, but you are verging into sophistry here. It is rather laughable, frankly.

I’m just going to leave the ICJ discussion because it’s peripheral and these posts are getting quite long. Email me directly if you want to discuss it further.

the US has not provided all those it detained with the opportunity to take proceedings before a court to rule of the lawfulness of their detention - on the contrary, it kept a number of them in secret prisons for years with no access to courts of any sort.

This clarifies your objections. I had thought you were claiming that alien detainees were necessarily entitled to civilian habeas corpus rights. All of the detainees without exception were brought before military courts for disposition hearings. I had thought you mistaken, but now I see that your claim is simply untrue.

If you would rather I said "promptly" than "immediate" that is fine - though they have to be told the reason for their detention immediately

No. I want to you to be accurate. Detainees need not be charged “immediately” nor with “slight delay.” Moreover, all of the Guantanamo detainees have been brought before military courts which have settled their disposition and met all requirements of international law.

I hope that the above is enough to demonstrate that the Guantanamo detainees have not received even close to the rights they are entitled to under IHL.

As you can see, I’m still unconvinced, but I admit the law is rather unsettled in the twilight case of non-state terrorist actors. All I’m attempting to secure from you is a similar admission. As Bush, Powell, et al have requested, new UN resolutions are desperately needed to clarify the status of non-state actors engaged in international terrorism.

If you tell me that his book does make a case, I clearly should read it: I hope it is better than the case you have been summarising.

Suffice it to note that I think even less of your case. It seems to be mostly equivocation and misstatement. But if you are interested you should also examine the DC court of Appeals case that reversed the original Hamdan decision.

“Another problem for Hamdan is that the 1949 Convention does not apply to al Qaeda and its members. The Convention appears to contemplate only two types of armed conflicts. The first is an international conflict. Under Common Article 2, the provisions of the Convention apply to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” Needless to say, al Qaeda is not a state and it was not a “High Contracting Party.” There is an exception, set forth in the last paragraph of Common Article 2, when one of the “Powers” in a conflict is not a signatory but the other is. Then the signatory nation is bound to adhere to the Convention so long as the opposing Power “accepts and applies the provisions thereof.” Even if al Qaeda could be considered a Power, which we doubt, no one claims that al Qaeda has accepted and applied the provisions of the Convention.”

On your last paragraph, are you suggesting that the US regarded European inaction in Yugoslavia as illegal (as opposed, say, to immoral, or impolitic)? On what grounds?

It’s a side issue, but no. The US government never took the issue up at all. Nevertheless, occupation forces have specific duties under Geneva.

This seems to support two of my suggestions: (a) that while anti-Americanism has always existed, it was (contrary to your experience) a minority view in most of Europe; and (b) that the actions of the Bush administration have alienated so many people that that minority view has become a majority.

The change is attitude is striking. Thanks for pointing the study out to me.
 
Anonymous Coward wrote, They were ratifying a treaty, which is by its very nature a multilateral act. This should be obvious.

Waging coalition warfare is by nature a "multilateral act." This should be obvious, too.

I don't need to accuse the Bushies of unilateralism.

Yes, that's the spirit. Let's just assume you hold the truth. Case closed, huh?
 
Jeff:
"No: you have misconstrued the grammar of the sentence. The phrase "within a state" applies to both parts of the disjunction."

No sir. You fail to grasp the distinction between a restrictive and a non-restrictive phrase. No offense, but you are verging into sophistry here. It is rather laughable, frankly.


I agree that the sentence is ambiguous taken out of context. My point is that you need to look at the context to disambiguate it: your error arises from trying to read it in isolation from the rest. Another piece of context to note is that this position paper was not (of course) creating new law. It was summarising the ICRC's position on the state of the existing law: on the subject of "non-international conflict" it simply refers to the provisions of Common Article 3 of the Geneva Conventions and Additional Protocol II. Additional Protocol II defines its scope as conflicts "which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations" (note that the phrasing we are discussing is drawn from this article). Likewise if you read the official commentary on Common Article 3 of the Geneva Conventions, it is absolutely clear that "non-international conflicts" are (as the name suggests) envisaged solely as conflicts within a single state.

Indeed, interestingly, that very point was addressed by the US Court of Appeals in Hamdan vs. Rumsfeld, which you cite below. President Bush had claimed - and the court upheld - that the fight against Al Qaeda in Afghanistan in which Hamdan was captured was not a non-international conflict, and hence not covered by Common Article 3. For what it is worth, I agree with Mr Bush here (though not of course with a lot of his other characterisations of the conflict!). You appear to disagree with him.

"the US has not provided all those it detained with the opportunity to take proceedings before a court to rule of the lawfulness of their detention - on the contrary, it kept a number of them in secret prisons for years with no access to courts of any sort."

This clarifies your objections. I had thought you were claiming that alien detainees were necessarily entitled to civilian habeas corpus rights. All of the detainees without exception were brought before military courts for disposition hearings. I had thought you mistaken, but now I see that your claim is simply untrue.


First, not all of them were brought before military courts, at least not in any reasonable length of time (the system of military courts was only established long after many of these people were taken). Secondly, the article gives the detainees themselves the right to initiate such cases before the courts: yet these detainees did not have that right, but had to wait for their cases to come up. Thirdly, the military commissions do not allow people to make a case on the lawfulness of their detention - under their current system, the question of the legal authority under which they are being held is ruled out of consideration by the commissions as beyond their scope(as noted in yesterday's NY Times article). Hence the US fails to satisfy the requirement on three grounds.

On Hamdan vs Rumsfeld, you should note that the question before the court was whether he was a prisoner of war under the Third Geneva Convention. The court's ruling that he was not is a perfectly reasonable one, but it does not let the US off the hook for his (or other people's) treatment. The possibility that he was a non-legal combatant imprisoned under the Fourth Geneva Convention was not an issue addressed by that court, nor, accordingly, was the issue of whether his treatment complies with the regulations laid down by that Convention.
 
Waging coalition warfare is by nature a "multilateral act."

The current US force is 145,000. Britain is second with 7,500. Poland is fourth with 2,500 and they are leaving. The US casualties in Iraq have been 3000 dead* and 22,500 wounded. The rest of the ersatz coalition has suffered 250 casualties. There have been 650 'contractors' killed as well.

The US financial cost of this failure has been $350B. Britain is second with $4.5B.

Really, Jeff, you are desperately short on the facts. Stop watching Fox News.

* Note that Bush hasn't been to a single one of their funerals. Not one.
 
Amfortas wrote: I agree that the sentence is ambiguous taken out of context. My point is that you need to look at the context to disambiguate it: your error arises from trying to read it in isolation from the rest.

I reject your point on grounds that you have misconstrued the plain meaning of the ICRC statement. (http://www.icrc.org/web/eng/siteeng0.nsf/html/terrorism-ihl-210705).

What does this mean?

Unlawful combatants do not qualify for prisoner of war status. Their situation upon capture by the enemy is covered by the Fourth (Civilian) Geneva Convention if they fulfil the nationality criteria and by the relevant provisions of the Additional Protocol I, if ratified by the detaining power.

”This protection is not the same as that afforded to lawful combatants. To the contrary, persons protected by the Fourth Convention and the relevant provisions of Protocol I may be prosecuted under domestic law for directly participating in hostilities. They may be interned for as long as they pose a serious security threat, and, while in detention, may under specific conditions be denied certain privileges under the Fourth Geneva Convention. They may also be prosecuted for war crimes and other crimes and sentenced to terms exceeding the length of the conflict, including the range of penalties provided for under domestic law.

Persons not covered by either the Third or the Fourth Geneva Convention in international armed conflict are entitled to the fundamental guarantees provided for by customary international law (as reflected in Article 75 of Additional Protocol I), as well as by applicable domestic and human rights law. All these legal sources provide for rights of detainees in relation to treatment, conditions and due process of law.

Therefore, contrary to some assertions, the ICRC has never stated that all persons who have taken part in hostilities in an international armed conflict are entitled to prisoner of war status.


Clearly, it contradicts almost all of your previous assertions about the “context” of this document. Note particularly the second paragraph. I encourage people to simply read the text. You deliberately misread this text to make an anti-American point. Thus you exemplify my larger point about European misreading of international law, in general. We’ve reached the Third Wave of absurdities, but please spare me the noble lies.

Amfortas wrote: Likewise if you read the official commentary on Common Article 3 of the Geneva Conventions, it is absolutely clear that "non-international conflicts" are (as the name suggests) envisaged solely as conflicts within a single state.

Ha! The ICRC commentaries can be read here: http://www.icrc.org/Web/Eng/siteeng0.nsf/html/genevaconventions. The Commentaries on Article 3 are anything but clear! The commentaries complain of the vague language of Article 3. It goes on to make this judgment:

In the case of armed conflict not of an international character, and subject to what has been stated above regarding the recognition by third parties of a state of belligerence, the Parties to the conflict are legally only bound to observe Article 3, and may ignore all the other Articles. But each one of them is completely free -- and should be encouraged -- to apply all or part of the remaining Articles of the Convention.

Amfortas, you have confused what is to be encouraged with what is to binding. A refutation of your views is “enshrined” in the very commentaries you cite.

Amfortas wrote: Indeed, interestingly, that very point was addressed by the US Court of Appeals in Hamdan vs. Rumsfeld, which you cite below…For what it is worth, I agree with Mr Bush here…

I thought that might get your attention. I found it ironic that you agree with Bush on the crucial issue. I agree with the US Supreme Court. Read the decision here: http://www.law.duke.edu/publiclaw/supremecourtonline/editedCases/hmdvrum.html. The Court argued that “conflict not of an international character” is used in “contradistinction to a conflict between nations.” So, “international” is to be taken literally as directly between two nations.

This gives the widest scope of application to Article 3, as the Commentaries suggest. You not only agree with Bush, but also you disagree with the “enshrined” intent of the Commentaries to provide the widest extent. If Article 3 applies, as the US Supreme Court ruled and the Commentaries suggest, then according to the ICRC, “the Parties to the conflict are legally only bound to observe Article 3, and may ignore all the other Articles.”

The argument from maximizing the extent of Article 3 seems conclusive to me.

First, not all of them were brought before military courts, at least not in any reasonable length of time (the system of military courts was only established long after many of these people were taken).

No. All of them received a status hearing immediately upon arrival at Guantanamo. Hamdan disputed the form of these hearings. The US Supreme Court agreed, and then Congress passed (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930enr.txt.pdf) legislation to create courts with the required form. Within one year, all detainees had received hearings under the new tribunals. This kind of delay is nothing more or less than any US citizen would face in a judicial appeals process. Your judgment is wrong again.

Secondly, the article gives the detainees themselves the right to initiate such cases before the courts: yet these detainees did not have that right, but had to wait for their cases to come up.
Not true. The detainees did bring their cases to the courts, under both the initial, improper tribunals and the newly established, proper courts. In the latter they had counsel and access to essentially the same appeals process available to US servicemen.

Thirdly, the military commissions do not allow people to make a case on the lawfulness of their detention - under their current system, the question of the legal authority under which they are being held is ruled out of consideration by the commissions as beyond their scope(as noted in yesterday's NY Times article).

I have read the law thoroughly: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930enr.txt.pdf Detainees can challenge their status in Combatant Status Review Tribunals. In fact, the only way a detainee can be tried by a military commission as an ‘unlawful enemy combatant’ is if he is first judged to be in ‘unlawful enemy combatant status’ by a Combatant Status Review Tribunal. Again, you are simply wrong on the facts.
 
Taylor, I know I should be used to your habit of saying 'the world' when you mean 'Europe and Canada', but could you please stop? Capital punishment is practiced in India, China, Japan, and the entire Middle East, besides the US. As you say, whether or not that position is correct is beside the point - the point is that a majority of the world lives in jurisdictions that permit capital punishment.

On an unrelated note, could you please try to avoid spelling errors in sentences where you use the word 'incompetence', and hold off on the use of 'prepubescent' as an insult until, say, you've stopped listing your high school on your cv?
 
From AI:
-88 countries and territories have abolished the death penalty for all crimes;
-11 countries have abolished the death penalty for all but exceptional crimes such as wartime crimes;
-29 countries can be considered abolitionist in practice: they retain the death penalty in law but have not carried out any executions for the past 10 years or more and are believed to have a policy or established practice of not carrying out executions.
Making a total of 128 countries which have abolished the death penalty in law or practice.
...
In 2005, 94 per cent of all known executions took place in China, Iran, Saudi Arabia and the USA.

Some good company I am sure you will agree. And I also think the word "most" goes slightly beyond Europe and Canada in this case.
 
Refreshing and sober post. I consider this type of advice to be more "realism" than is the urge to talk to enemies.

Excellent points though.

Regarding bringing in an international body to do this, this brings back up the question as to why Jordan and Egypt were denied their overtures to help with troops in the country. We certainly should have more countries over there particularly since the "major combat" is over.
 
Well, that was quite a list of numbers, Taylor. Here's some for you.
Percentage of respondents in favor of executing Saddam Hussein:

USA: 82%
Great Britain: 69%
France: 58%
Germany: 53%
Spain: 51%
Italy: 46%

-from Spiegel. So when you say "the world" views Saddam's execution as illegitimate, apparently your world is quite a bit smaller than it could be.
 
If you think 'favorability' is the same as 'legitimacy', then we are talking about very different things.
 
"favorability" becomes "legitimacy" when the majority favoring whatever it is has the political power to make it a matter of law. It then becomes legitimate.
Whether somebody doesn't like it is beside the point.
The EU has figured out a way to keep the desires of the citizens--see the figures on the "favorability" of capital punishment in general--from affecting the law, the general discussion, or the actions of the unelected 'crats.
When you say "Europe", as one person said, you say, law professors self-selecting for international human rights work with an exception for what happens to Jews.
You can consider that "Europe" if you wish.
Nobody is required to take that seriously.
 
Taylor, I still don't know what you mean by 'legitimate'. You make the claim that Saddam's trial would have been more legitimate if it had been conducted at the Hague, though "one cannot be tried for crimes committed before the establishment of the ICC"!

Let's try a different tack - what would have to change for the death penalty to be legitimate, besides that the sentence is legal in the nation where the trial took place, would be legal in all of the world's 5 largest democracies, would be legal in 3 of the 5 permanent members of the Security Council, was viewed favorably by the populations of the other 2, and was defended by the UN Secretary General?
 
The loss of Shi'a support (we still have Kurdish and never had Sunni) did not occur due to any lack of "UN legitimacy." Iraqis by and large didn't care a whit about the UN, which was linked with the sanctions.

The loss of support and gravitation towards the militias by Shi'a occurred due to the dreadful security situation caused by the Sunni/Al Qaeda insurgency determined to destroy a democratic and necessarily Shi'ite dominated Iraq. "UN legitimacy" meant nothing in this context.
 
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