Posted by
Asp on Sunday, April 26, 2009 8:46:23 PM
Opinion on the applicability of the Geneva Conventions in the war on terror.
When
it comes to discussions of terrorists and GITMO detainees, there are
considerable references to violations of the Geneva Conventions. Those
who hold these opinions have, in my opinion, not bothered to read and
understand the conventions for had they done so, they would understand
that the conventions do not apply. That does not mean that we can’t, or
shouldn't, follow them unilaterally, it only means that as a matter of
law, in my opinion, we are required to follow them. So lets take a look
at a few of the articles of the Convention IV so that I can explain why
I have come to my opinion.
Art.
2. The provisions contained in the Regulations referred to in Article
1, as well as in the present Convention, do not apply except between
Contracting powers, and then only if all the belligerents are parties
to the Convention.
The key word here is ‘powers,’ and means
‘countries.’ Contracting powers are countries who have signed the
Conventions (contracts). Since Al Qaida is not a country, it is not a
power, it cannot be a contracting or non-signatory power and thus
cannot, legally, be protected by the conventions. The next word of
great significance is the word ‘between.’ It means that there are two
‘powers,’ both of whom are ‘contracting.’ The third word of importance
is the word ‘belligerents,’ which is defined in Chapter I, Article 1
and 2. (see below).
Art. 6. Non-Signatory Powers may adhere to the present Convention.
The
Power which desires to adhere notifies in writing its intention to the
Netherlands Government, forwarding to it the act of adhesion, which
shall be deposited in the archives of the said Government.
CHAPTER I
The qualifications of belligerents
Article
1. The laws, rights, and duties of war apply not only to armies, but
also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.
In
countries where militia or volunteer corps constitute the army, or form
part of it, they are included under the denomination "army."
It
could be argued that the ‘insurgents’ are ‘commanded by a person
responsible for his subordinates,’ but they do not have ‘fixed
distinctive emblem recognizable at a distance,’ they do not ‘carry arms
openly,’ and they do not ‘conduct their operations in accordance with
the laws and customs of war.’ Thus, they are not covered by this
article.
Art. 2. The inhabitants of a territory which has not been
occupied, who, on the approach of the enemy, spontaneously take up arms
to resist the invading troops without having had time to organize
themselves in accordance with Article 1, shall be regarded as
belligerents if they carry arms openly and if they respect the laws and
customs of war.
Since the overthrow of the Hussein government and
it can be argued that Iraq has been occupied; in the years since the
occupation, the insurgents have had time to organize themselves in
accordance with Article 1; they do not carry arms openly and they do
not respect the laws and customs of war. Thus they need not be regarded
as belligerents with the scope of this article.