The Geneva Conventions and Habeas Corpus: Why the Left-Wing Reactionaries are Wrong
The reactionary hand-wringing about the Military Commissions Act of 2006 is wholly devoid of intellectual support and contradicted by the Geneva Conventions themselves. The flaccid objections are based in three parts: that unlawful combatants can be anyone, Habeas Corpus is a right enjoyed by military combatants, and a misunderstanding of the Geneva Convention documents (if they are read at all). Through on top a healthy dose of paranoia and you have basically the entire dogma of the liberal establishment on the issue.
First, there is such a thing as a lawful combatant (which makes anyone not living up to that standard unlawful). This is defined in the Geneva Conventions document “Geneva Convention relative to the Treatment of Prisoners of War”, Article 3. It falls into 4 basic parts: wearing a uniform of other distinctive insignia, having someone with command authority in charge, carrying arms openly, and conducting themselves in accordance to the laws of war. Now, according to some, in fact, most left-wing “thinkers”, killing Americans or Jews is a complete immunity to any infraction of international law, however, there are some reasonable people who do think there are some laws here that might possible apply.
For instance, Article 3 talks about the illegality of taking hostages. Presumably sawing off their heads with a dull knife also falls under this. Using mosques, hospitals, or schools as arms depots or locations to launch attacks is also included. In short, almost the entire battery of tactics used by Al Qaeda or the so-called insurgents in Iraq is illegal under international law.
Another point to note is the requirement to carry arms openly and to wear a distinctive and fixed sign (a.k.a. a uniform). This is to clearly identify which people are ok to shoot at and which are not. If you don’t wear a uniform, it makes it really hard to be sure you aren’t shooting a civilian. That’s why things like Haditha happen. In short, the tactics employed help ensure that more civilians get killed, and for that matter, it makes it just as hard for the authorities to be sure they killed a civilian or a combatant. This is one reason why the “civilian death toll” is exaggerated.
More importantly, these above two points (and others) show that the insurgents in Iraq, Al Qaeda, and the Taliban (to some extent) do not meet the criteria of being lawful combatants entitled to the Geneva Convention protections. As an aside, I studied international law under Francis Boyle… yes, that Francis Boyle. It was before the Iraq war but I did quiz him on these provisions. In fact, he was quite fond of saying that US mercenaries such as DynCorp were not entitled to the Geneva Conventions and could be summarily executed if a capturing nation wanted to do so. He also conceded that the tactics employed by Hamas, Hezbollah, Al Qaeda and others were illegal under international law. It just seems like the biggest supporters of international law think it only applies when you aren’t killing Jews, Christians, or Americans.
The important point is that unlawful combatants are a defined entity and not subject to a whole lot of interpretation. Article 5 says that everyone is entitled to a status hearing which everyone at Gitmo has had. Article 84 makes a particular emphasis that trials should be conducted by military tribunals. It’s clear what an unlawful combatant is and doesn’t need constant definition. In fact, everyone in military life is fully versed in the difference.
The Habeas Corpus objections are particularly odd. Never… ever… in the history of mankind has an army who has captured an enemy offered that enemy a trial and charged him with some crime, gave him a sentence, and then happily returned him to his home country while hostilities were still ongoing. In fact, more often than not, history shows when countries capture an enemy and subject them to trial, it’s often a show trial for propaganda purposes and not infrequently results in the execution of the prisoner of war in question.
Article 118 deals with repatriation and it says prisoners will be returned after the cessation of hostilities. There is nothing, absolutely nothing, in international law, the Constitution, state or local laws, or moral law that states we should only hold POWs for a certain time and then return them so they can continue fighting against us. In fact, the entire section that deals with repatriation before hostilities have ended only allows for returning POWs who no longer serve in a military capacity. The Geneva Conventions fully supports the right of a nation to hold POWs or illegal combatants until hostilities are over. If a war lasts 100 years, then they can be held until they are too sick or elderly to fight anymore. The Geneva Conventions is crystal clear on this point.
Nowhere in the history of man can it be found that a country held any class of enemy combatant, tried him in a civilian court for a civilian crime, sentenced him, and then returned him to his home nation before hostilities were over. It’s a complete invention of the left. And this skips past the huge jurisdictional issues with trying someone from Afghanistan for what they were doing in Afghanistan.
Last, the cherry-picking of particular sentences or sentence fragments from the Geneva Conventions is a particular bastardization of legal interpretation. The Geneva Convention framework has to be taken as a whole. Yes, torture is illegal and we can haggle over the grey areas, but I’m not a fan of those policies either. However, to skip past the requirements in Article 3 and 4 and then site later articles indicates a selective use of the law. It either all applies or it doesn’t apply at all.
The particular paranoia that dissenters will be picked up as enemy combatants is patent delusion. I challenge anyone to show me one case of a non-violent dissenter inside the US being picked up. Everyone knows what a combatant is. I don’t fear falling victim to this law because I don’t plan to start shooting at US troops. The canard that Bush is quashing dissent and silencing speech is absurd. I’ve been listening to anti-war agitprop for years, they won’t shut up, and I’ve not seen one of them picked up. They’re loud, they’re public and it wouldn’t be hard to bring up a couple black helicopters to take care of business. The fact remains, they are being allowed to dissent, even when it’s devoid of fact.
The reason why we have a GOP majority, that will likely remain as much as the GOP deserves to lose, is that the left has abandoned any factual or reasoned approach to issues. The Military Commissions Act is just another example of the hyperventilating hysterics of the Democrats and anti-war Left. It has all but bankrupted any real political discourse in this nation and strikes to the very heart of our democracy. It would be nice if some Election Day I’d have a real serious choice between candidates as opposed to between dumb and insane.
John Bambenek is the Assistant Politics Editor for Blogcritics and is an academic professional for the University of Illinois. He is a columnist for the Daily Illini and blogs at Part-Time Pundit deep from the corn fields of Illinois.
He is the current owner of BlogSoldiers, a blog-only traffic exchange.
John Bambenek is the Assistant Politics Editor for Blogcritics and is an academic professional for the University of Illinois. He is a freelance columnist who blogs at Part-Time Pundit and the executive director of The Tumaini Foundation which helps AIDS orphans and other children in Tanzania to get an education. He is the current owner of BlogSoldiers, a blog-only traffic exchange. | More from John Bambenek
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