Newsgroup: it.politica.internazionale
Titolo: Il problema legale dei detenuti a Guantanamo

http://www.crimesofwar.org/expert/pow-goldman.html
Robert Kogod Goldman, Professor, Washington College of Law
American University
January 2002
I believe that the Administration misread Article 4 of the Third Convention
with respect to the Taliban. I think that under any fair assessment, the
Taliban constitute the armed forces of a party to a conflict. Even our own
military manuals, and no one is citing them, but if you take a look at Air
Force Law of War Manual, it says "upon capture, any person who does not
appear to be entitled to prisoner of war status but has committed a
belligerent act is required to be treated as a prisoner of war until his
status is properly determined."
The Administration is applying the wrong part of the Conventions. They have
invoked the provisions for irregular combatants not under Article 4-1, but
under Article 4-2.
[Cfr. 
http://www.yale.edu/lawweb/avalon/lawofwar/geneva03.htm#art4
 ]
They are treating them as though they are guerrillas or
partisans who were fighting for a party to the conflict. And that's wrong in
my view. The Taliban are the armed forces of the state. As far as I'm
concerned, this belies the Administration's other statements that the
Taliban are organized, they are dangerous, they have tanks, etc. I think the
Administration is definitely subverting the object and intent of the
Convention. These people are the armed forces to a conflict and they should
be judged against the standards in Article 4-1. They have a command
structure. They were fighting. The United States clearly knew who to target
which means they were distinguishable. And the fact that members of regular
armed forces may commit violations of the laws of war or do not always
comply with those does not in effect make them non-lawful combatants. It
just means that if they have committed a war crime they enjoy no immunity
from prosecution for that war crime. They don't forfeit their status as
lawful combatants entitled to POW status because they may have committed a
war crime.
There is a lot of misinformation coming out of the press. For example, you
can interrogate a prisoner of war for as long as you want. You can't torture
them, you can't beat them, but then you can't do that to an unprivileged
combatant either. The Administration has done something very dangerous in
stating that the Taliban are irregular combatants and don't meet the
standards of Article 4-2 and are unprivileged (combatants). In taking this
stance, the Administration has virtually said that the Taliban's resistance
to US Forces who invaded their country, or that merely pointing a gun an
American or shooting at an American troop would render them subject to a
prosecution under US criminal law for murder or attempted murder. An
unprivileged combatant is a person who without a privilege or license goes
out and engages in hostilities without having a right to do it. This is one
of the things people don't understand. The essence of prisoner of war status
is that lawful combatants authorized by a party to the conflict are entitled
to POW status because they have a license to go out and kill and destroy the
enemy. Upon capture, they are immune from prosecution for their lawful acts
of war. They could only be tried for violations of the laws of war or other
pre-capture offenses. If you are an unprivileged combatant however, you can
be punished for your mere combatancy and each and every one of your hostile
acts even if you complied with the laws of war.
I would make two distinctions between Al Qaeda members who are captured in
third countries and those captured in Afghanistan. Those captured in the
United States, the UK or elsewhere are essentially being treated as law
enforcement matters and are being tried under domestic statutes and criminal
law. If those Al Qaeda members would declare prisoner of war status, it
would be denied because that attack is the work of private individuals. To
make war, you have to be sanctioned by the state and this does not appear to
be the case so therefore they will be treated as common criminals. I think
the situation is different however with respect to those Al Qaeda members
who effectively fought on the side of the Taliban once the United States
undertook military action. And the reason that is different is that the
Geneva Conventions are not conditioned on the causes of the conflict or the
causes that the people espouse. It applies equally across the board. And in
that case, I think the United States could have said, that the Geneva
Convention applies to these particular Al Qaeda combat detainees but they
were not regular members of the Taliban's armed forces. They fall under
Article 4-2, and our reading under Article 4-2, and the Administration would
be right in my view, that they belong to an organization that openly and
notoriously has as its goal targeting civilians. They have concealed their
arms on other occasions. It would be very plausible if the Administration
used that logic to deny Al Qaeda members POW status. Again, it is still
arguable, and what I would have urged the Administration to do is go ahead
and give them an Article 5 tribunal. Any Article 5 tribunal is going to deny
them POW status. In point, I support the Administration's determination on
Al Qaeda, but I disagree with their reasons.
If the Administration had listened to the experts on this, they would have
said, "Hey guys, this has real implications for us if we don't give prisoner
of war status. We risk nothing. We can find that Al Qaeda are unprivileged
combatants and apply the convention to them. We'll even give them an Article
5 tribunal."
In the case of the Taliban, whether we like them or not is irrelevant to the
application of the Convention. And if they were involved in September 11 or
other kinds of acts and if they constitute either violations of US law or
international law, then we can still subject them to trial and still give
them prisoner of war status. A good example is Noriega. Noriega was held as
a prisoner of war. Nonetheless, he was tried on drug trafficking charges
that did not come within the jurisdiction of either a military commission or
a military tribunal and therefore he was tried for that offense in a US
District Court, but he is held as a prisoner of war to this day.
By denying the detainees prisoner of war status, the US finds itself at
variance with the International Committee of the Red Cross, with most
experts, and with most of our European allies. But the real danger is that
the kind of rhetoric that was used - the Geneva Conventions don't' apply to
this kind of war and that we will selectively apply the Conventions - can
open up problems for us down the line in military actions that we surely
will be undertaking where people in effect will try to say the same thing
about US special forces.

 about US special forces.
E' già successo nella prima guerra del golfo quando Saddam ha fatto
torturare prigionieri americani e inglesi in violazione delle convenzioni di
Ginevra. Quindo quanto Robert Kogod Goldman teme è già successo.
E ben prima di Guantanamo.
E come testimoniano i continui soldati americani e alleati uccisi dal
nemico, i terroristi iracheni non seguono le convenzioni di Ginevra quando
combattono.

 combattono.
Quindi sono "criminali di guerra"? OK. Processateli, quando li prendete. E,
magari, poi faremo i conti anche sui cadaveri delle due parti. Secondo
IraqBodyCount, i morti *civili* in Iraq, ad opera degli aggressori, sono
circa 9.000. Chi pagherà per loro? Quante "inchieste" sono state fatte dagli
USA sugli eccidi di civili? Perché non esistono nemmeno *stime* USA sui
morti civili iracheni (nemmeno sui militari iracheni, se è per questo)? Ti
consiglierei di leggere l'art. gentilmente segnalatomi da Serenissima. Te ne
stralcio una parte, molto interessante:
http://www.fff.org/comment/com0402h.asp
A small article on page A12 of the January 29 issue of the New York Times is
revealing with respect to the extent of the power of the military-industrial
complex in American life. The article reports that the Army's chief of
staff, Gen. Peter Schoomaker, told the House Armed Services Committee that
he is going to increase the size of U.S. forces by 30,000.
Did Congress authorize the increase? No. And when a few congressmen
indicated to the general that they'd be pleased to have Congress authorize
the increase, the general responded that Congress didn't need to trouble
themselves with providing such authority - that Secretary of Defense
Rumsfeld had already authorized the temporary increase under his "emergency"
power - and that the "emergency" would justify the increase for the next
four years. In other words, "Don't worry your pretty little heads, elected
representatives of the people; the military bureaucracy has the situation
well under control. Go back to your knitting."
Ecco le ragioni della "caciara" su Guantanamo. Siamo alla fine del
"bilanciamento dei poteri" (anche in Italia, btw) che ha sempre
caratterizzato la democrazia storica. Quello che ci aspetta, beh, chiamalo
un po' come ti pare: ma non è più "democrazia", bensì un'altra, e ben
peggiore, sbobba. Shalom.
Namib
--
"I don't *believe* in surrenders. No, I still got *my* saber, Reverend.
Didn't turn it into no ploughshare neither".
Ethan Edwards (da "The Searchers", di John Ford)

(nemmeno sui militari iracheni, se è per questo)?
Perche' dovrebbero esistere?  E se anche esistessero e non fossero
pubbliche?
-Stefano

 peggiore, sbobba. Shalom.
Preferivi l'Iraq sotto Saddam insomma. Buono a sapersi.

 combattono.
Gli stati di Diritto si distinguono dai terroristi quando rimangono in
punta di diritto.
Non quando piegano il diritto stesso o cercano cavilli per non
applicarlo... (vedi Guantanamo)
In questo caso, anche con gli psicologi (magari della Cia? :-)), il Corano,
e tutto il resto, l'Establishment americano violenta i principi della loro
stessa Patria!
Che poi la maggioranza degli americani sia d'accordo fa tristezza, ma non
cambia la sostanza.
shalom
 

stessa Patria!
Se lo dici tu...
-Stefano