Monday, August 11, 2008

Clarifying the Law Re. Treatment of Individuals Allegedly Detained by Russia

At Lawyers, Guns and Money, Robert Farley has some intel on the alleged capture of at least one American by Russian forces in Georgia. If true, and if this was a member of the US military fighting with Georgian troops, this would be a pretty big deal. (Of course the US will disavow this, claim he was at best a private contractor not a combatant and likely do nothing to protect him... so far no coverage of this in the Western press.)

In comments at Farley's blog there are various claims that if he was not a regular combatant this prisoner would have no rights under the Geneva Conventions. This is false. The Geneva Conventions apply in full to international armed conflicts, of which this is one. They apply to all persons who fall into the power of the enemy, not just lawful combatants. If not taking part in hostilities, this person would need to be treated as a civilian and repatriated to the US. If taking part in hostilities unlawfully (that is, without the authorization of his government) the person could be held and prosecuted, but all the provisions regarding the treatment of detainees, including the right to due process, would apply to him nonetheless.

Besides, even if this weren't an armed conflict in which the full conventions applied, Article 3 of the four 1949 conventions would still apply - this is where basic guarantees of humane treatment are laid out for everyone, not just for lawful combatants.

Of course, the US has given up its right to any moral high ground with respect to its own detainees by disavowing/reinterpreting international law. US hypocrisy, however, doesn't invalidate Russia's treaty obligations, and we shouldn't be acting as though it does.

As an aside, Dan Nexon has a fantastic post up at Duck of Minerva outlining the Russian perspective on recent events - a nice antidote to the propagandistic pro-Georgia bent of much of the US news coverage.

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