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.

Notable Quotable of the Week.

"We're going to have to work the dark side, we're going to have to spend time in the shadows."

- Vice-President Dick Cheney, September 15, 2001.

Go see this film, folks.

Defending the Death Penalty

Not me (necessarily). The Bush Administration.

Funny that they feel that need to defend their decision to seek the death penalty against 6 Guantanamo inmates accused of various levels of involvement in the events of 9/11. After all, no international law prevents the US from executing convicts - though there may be an emergent international norm against the death penalty, the US is not bound by the Optional Protocol to the International Covenant on Civil and Political Rights. So the Bush Administration really doesn't need to bother justifying this.

Besides, the strategy being used - comparing the US military commissions to the Nuremberg tribunals - is going to backfire, because there is a significant difference and a significance similarity that doesn't work in the Bush Administration's favor.

The difference is 60-some years of international jurisprudence and the establishment of the International Criminal Court by multilateral treaty - a court which does not allow for the death penalty, even for the architects of genocide.

The similarity is the lack of due process in the two proceedings (required, by the way, by Common Article 3, Article 1(d) of the Geneva Conventions even for unlawful combatants - the Bush Administration has admitted this article applied to GWOT detainees). At Nuremberg, Nazis were executed for "crimes against humanity" - a concept that did not exist prior to the crimes being committed, so court's legitimacy was undermined by claims of ex-post-facto justice. As for the Guantanamo Six, at least one of them, Khalid Sheikh Mohammad, is known to have been tortured by the US government during interrogations, so evidence that could hang him is unlikely to be accepted by advocates of due process.

In other words, invoking Nuremberg was exactly the wrong strategy for the White House. Instead, they should have stuck to the letter of the Geneva Conventions. The conventions provide no immunity from prosecution and even execution for those who engage in political violence without formal combatant status - that is, being incorporated into the legitimate armies of parties to an conflict. The Guantanamo Six do not qualify and therefore the question of whether they can be executed is moot under international law.

It's ironic that the White House would raise this at all then, given its penchant for flouting well-established norms. In this case, the law seems actually to be on the US side. Rather, this would have been a great opportunity to demonstrate our adeherence... complete adherence... to the spirit and letter of the Geneva Conventions. Oh, but wait, there's still that due process / torture thing...

Alex Gibney has released a new documentary about the treatment of detainees in the Global War on Terror.



The film, "Taxi to the Dark Side," which has already won the best documentary award at the Tribeca film festival, will be released in January 2008. Not quite in time to enjoy it with your family over the holidays, but perfect to digest with impressionable middle-schoolers, now being fed a diet of "civics" that includes pledging daily their blind allegiance to our republic.


Of the film, Bill Larsen writes:

Have we, by pursuing such ruthless means, lost the moral high ground in the war on terror and made ourselves less safe? Even more important, have we compromised our own sense of humanity, our democratic values and our effectiveness as a world leader?

In my view, to even phrase these comments in the form of questions is to suggest a desperate naivete about the impact of our government's actions on our standing in the world. The truth is, we should all be more frightened than ever of our enemies.