March 10, 2005
Creative Policy Debate Question 11
The Geneva Convention presents a set of provisions guiding state conduct in conflicts with other nation states. The Geneva Convention does not apply to groups such as Al Qaeda, a non-state actor that targets civilians and disregards other laws of war. Exploiting the ambiguity in how to deal with non state actors, the United States labeled the first detainees at Guantánamo as “unlawful combatants,” denying them the traditional protections received by regular prisoners of war. Donald Rumsfeld challenged the current relevance of the Geneva Convention by stating:
“The reality is the set of facts that exist today with the al-Qaeda and the Taliban were not necessarily the set of facts that were considered when the Geneva Convention was fashioned.”
Can we develop a legal framework for dealing with non state actors that are not party to the Geneva Convention? Should the Geneva Accord be adjusted or updated?
Participants in the
Adjusting Geneva Creative Debate
- Irune Aguirrezabal
- Erik S. Akerboom
- Emilio Cassinello
- Anthony Dworkin
- Dr. Carlos Esposito
- Robert Goldman
- Natasa Kandic
- Gath Meintjes
- Juan Méndez
- Dr. Jerrold Post
There is nothing new in the geo-strategic context
When we lower to the level of the terrroist, then we are in trouble. If there is a terrotist with critical information should he be tortured, yes or no?
the current context of humanitarian law is adequate to deal with nonstate actors, the geneva convention therefore is sufficient.
Posted by: AtochaWorkshop11 at March 11, 2005 04:26 PM
The Geneva Convention is sufficent and does not need modification. The real question is: Are enemy combatant covered by the Geneva Convention?
Posted by: AtochaWorkshop11 at March 11, 2005 04:31 PM
You have a law enforcement paradigm which can't be undermined. When you have armed conflict, the law of war applies. In WWII when US troops were caught in British uniform, the issue was not whether it was their uniform. The US will always wage war abroad. The US has no problem applying the Geneva Convention in Iraq. I have no problem trying Al-Qaeda as a non-priviledged combatant. But if it is in a war period you must use common article 3. It doesn't matter how you categorize the problem.
Most terrorists don't have a fixed address.
There are 2 myths. The US is saying they are confronting a new necessity. But the necessity has been taken into account. The US argument of necessity has been taken into account. The law takes necessity into account.
The second myth is about reciprocity. We must debunk the myth that the Geneva Convention only applies if both sides take it into account.
The US does not have to apply to states which are recognised by the State. The Convention only calls for distinguishment. The Taliban were very well distinguished in Afghanistan under the Laws of War. The adversaries could have very well used the same argument to deny US special forces POW status
Posted by: AtochaWorkshop11 at March 11, 2005 04:43 PM
States may have been part of the conspiracy of 9-11. Rumsfeld's argument is about being able to extract information because of national security concerns.
I defy you to find that terrorism has not been a common feature of international warfare. The SS was one in WWII. It is false to say that this is all new and that everything is out the window.
The problem in Iraq is that the US says that the rules apply but don't apply them. Justification of secret detainees because of the War on Terror is no justification. Human Rights Law can apply in times where the Law of War does not.
There are Laws to adjust the rights of States to cases of terrorism. Imminent threat may have a different meaning today. Some words of the UN charter and their understanding may have to be adapted to current context.
Once you have armed conflict, minimum rules apply. Regardless.
Posted by: AtochaWorkshop11 at March 11, 2005 04:51 PM
[Post] The theme of the conference is terrorism.
[Meintjes] Geneva conventions apply to all sorts of conflicts. Some attacks may not merit categorisation as conflict. Common laws of prosecution may apply. The US didn´t want to apply them.
Are there circumstances where because of nuclear threat the conventions should not apply?
[Mendez] I was a victim of torture. The ticking bomb exception should never apply because once you establish an exception and allow for torture. You don't get information that way and you descend to the level of terrorists.
[Herrero] One question: how could it have been done otherwise than how the Bush administration has carried out the War on Terror?
Posted by: AtochaWorkshop11 at March 11, 2005 04:58 PM
[Goldman] Torture is counterproductive.
[Meintjes] The professional military has said to the administration that they must convince detainees rather than torture them.
Posted by: AtochaWorkshop11 at March 11, 2005 05:00 PM
Although the legal arguments are unprecedented and implausible, there is a long history of torture. Are the legal pressures now stronger?
There will always be matters of degree. Nothing compares to what we are seeing done in Abu Ghraib where the highest echelons of the administration descend to these levels of orchestrated torture.
Posted by: AtochaWorkshop11 at March 11, 2005 05:03 PM
Human Rights Law in fact should apply extraterritorially. What we need is to upgrade protecting power to help supervise application. The ICRC has been denied access. And the ICRC does not publicise non-compliance. Human Rights Law has a big job ahead to upgrade application. Courts have been able to apply law to hybrid conflicts. If a State wants to torture its going to apply torture.
Posted by: AtochaWorkshop11 at March 11, 2005 05:07 PM
When Spain applied torture and lost legitimacy in dealing with terrorism is when they proved the least effective in dealing with terrorism.
Propose inclusion of terrorism in the Roma Status when it is ammended and a definition of terrorism. Terrorism can fall into the category of war crimes or crimes against humanity and investigated and prosecuted.
[Goldman] The definition must be clear and apply to both state and non-state actors.
[Dworkin] 9-11 can constitute crimes against humanity.
[Goldman] The problem is with the sole definition. The devil is in the details. When you try to specify. US policy is based on holding for interrogation versus trial.
Posted by: AtochaWorkshop11 at March 11, 2005 05:20 PM
[Goldman] You can't use preventive detention indefinitely and classify people as unpriviledged combattants. It is Alice in Wonderland.
[Dworkin] Fundamental Human Rights should apply regardless.
[Post] I agree. Now this is post-war.
[Goldman] Afghanistan was an armed conflict.
[Mendez] If Spain had chosen a military response post 3-11, they would have had to abide by the Geneva Conventions.
[Goldman] There simply is no situation in which the State is free to act and not follow IHL and Human Rights Law. The problem is filling the void to protect these Human Rights. (Guantanamo)
[Mendez] Abu Grahib and Guantanamo are almost the easy cases. At the very least, the Coalition should account for all cases of violations of Human Rights.
[Goldman] Every conflict as of 9-11 has become part of the war on terror (Colombia, Chechnia...). The nature of hostility, status and duties of the parties in conflict have not changed. The Law of War prohibits terrorism.
[Post] We now have a global jihad which is really not war in a conventional sense...But then crimes against humanity apply-
[Dworkin] Domestic Law and Human Rights Law then still apply. The US government is using laws in a permissive way and should not be able to.
[Goldman] You must distinguish domestic law from international obligations.
Posted by: AtochaWorkshop11 at March 11, 2005 05:35 PM
The Geneva Convention should not be updated as it still applies.
There are valid laws to apply to current situations.
Posted by: AtochaWorkshop11 at March 11, 2005 05:43 PM
The US should have listened to its professional military.
The law of armed conflict is adequate. The problem is the lack of application in genuine situations of armed conflict.
Posted by: AtochaWorkshop11 at March 11, 2005 05:46 PM
International Humanitarian Law cannot be unilaterally altered by the non-conforming actions of States.
Posted by: AtochaWorkshop11 at March 11, 2005 05:49 PM
The US is not even counting casualties anymore. It is really scary.
Posted by: AtochaWorkshop11 at March 11, 2005 05:54 PM
In periods of conflict, the Geneva Accords apply. The application is the real problem.
Posted by: AtochaWorkshop11 at March 11, 2005 05:58 PM
Overall this was an amazing discussion.
Posted by: Eric Schaubel at March 29, 2005 03:29 PM
Is there a net place where this type of discussion on how prisoners(war or political) are treated in Russia, China, Cuba, Egypt et al. What is the focus on US only? Transgresions were outed as usual in an open democracy, fixed and moved on. Has that been the case in the above mentioned locales? Or is this just a run of the mill diatribe on anti-US? If so, move on unless your view of diverse ideas are the Ward Churchills of the world such as Al Jazera.
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