(06-05-2014 09:08 PM)ncbeta Wrote: (06-05-2014 06:13 PM)Owl 69/70/75 Wrote: To anyone who knows anything about international law, this is now a full-blown mess.
To be fair to Obama, the Bush administration got this off on the wrong foot with their unilateral decision to extend the protections of the Geneva Conventions to anyone we captured in Afghanistan and Iraq (protections to which they were not entitled under the Geneva Conventions themselves, for at least two reasons, and also not entitled under settled principles of international law). We've been in legal never-never land with them ever since then. What they essentially established in Gitmo is a facility to which nobody knew what law applied or how to apply it. At this point, there is no outcome which comports with all potentially applicable laws.
What protections were extended to them? I thought both administrations tried to skirt Geneva protections with the whole "enemy combatant" and "the rules don't apply because they don't follow them either" arguments. I was under the impression that this is why we've been allowed to keep them in GITMO in the first place.
Number one, well settled international law (tradition and custom, international "common law" if you would) provides that captured enemy combatants can be held for the duration of the conflict, for the purpose of preventing their return to the battlefield against you. That would provide adequate legal basis for keeping them at Gitmo.
The "rules don't apply because they don't follow them" is a specific provision of the Geneva Conventions themselves, so that claim is on solid ground. The other reason why the Gitmo detainees would not be entitled to Geneva Conventions protections is that there is a convention for uniformed enemy combatants and another convention for non-uniformed innocent civilians, but there is no convention for non-uniformed enemy combatants, which is what those people were, so there really is no Geneva Convention that applies.
What rules do apply to non-uniformed enemy combatants? Under international common law, they are spies and as such can be put to death at the sole discretion of the captor. The simplest solution was probably to have shot them all in the desert. The argument against that was that we wanted to get as much information as we could from interrogating them. If you kill them, you won't get any more information from them. If you put it on the basis of, "If you talk, you live, if you don't talk, we kill you," then you probably run afoul of the anti-torture conventions, which unlike the Geneva Conventions apply to everyone.
They would not under any provision of international law be entitled to domestic constitutional protections, such as no detention without trial, right to counsel, right to speedy trial, etc.
The bottom line is that the unilateral decision to make the detainees subject to Geneva Conventions protections created a sort of legal never-never land where what was the law and how to apply it were not easily determined.
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Obama just called Bergdahl situation "A whipped up controversey"
