# Legal expert sees trouble in Canadian war role



## Yard Ape (15 Jan 2002)

*Legal expert sees trouble in Canadian war role* 
By ALAN FREEMAN
Tuesday, January 15, 2002 – Page A1 
Globe & Mail 

LONDON -- Canadian soldiers who are being sent to Afghanistan to fight under U.S. command could find themselves in violation of the 1949 Geneva Convention if they hand over suspected members of al-Qaeda to the U.S. authorities, says a Canadian expert on international law.

Michael Byers, who teaches international law at Duke University, said yesterday that Canadian troops could be placed in a conflict of interest because of Washington‘s decision to ignore the convention covering prisoners of war and treat al-Qaeda and Taliban suspects captured in Afghanistan not as PoWs but as "unlawful combatants."

"Canada‘s obligations under the Geneva Convention exist regardless of what the U.S. does," Prof. Byers said in an interview.

That means a Canadian soldier may find himself torn between obligations to his own government and to his U.S. military commander.

"I would not want to be that Canadian soldier, and I don‘t think it is right for the Canadian government to put our soldiers in that position," he said.

In Ottawa yesterday, a spokesman for the Department of National Defence could not say what Canadian troops would do if they take prisoners.

So far, 50 captured Taliban and al-Qaeda suspects have been chained, manacled, hooded and sometimes sedated before being flown for 27 hours to the U.S. naval base at Guantanamo Bay, Cuba. They will be held in cages built of chain-link fencing on concrete pads with metal roofs; the cages measure 1.8 by 2.4 metres and are partly exposed to the elements.

Nearly 400 other detainees being held by U.S. forces in Afghanistan or on U.S. warships in the Arabian Sea are expected to follow and the prison is being expanded to hold 2,000. Many will face military tribunals.

Prof. Byers, who is on sabbatical at Oxford University, said U.S. Secretary of Defence Donald Rumsfeld is violating the Geneva Convention in deciding that the captives are not PoWs, rather than leaving that decision to an independent tribunal.

"Anyone detained in the course of an armed conflict is presumed to be a PoW until a competent court or tribunal determines otherwise," Prof. Byers said.

The International Red Cross, which is seeking access to the prisoners, said yesterday that however they are described, they are covered by the convention, which prohibits "cruel, degrading and inhumane" treatment.

...

Prof. Byers is also concerned about the decision to send the prisoners to Guantanamo.

Washington considers it foreign territory, which means the prisoners have no rights under the U.S. Constitution, much less those guaranteed under the international convention.

Prof. Byers can‘t understand why the Americans are not treating the captives better.

"It wouldn‘t cost them anything to treat them as PoWs," he said, adding that "we would not want our soldiers to be held in those cages."

Putting hoods on the men violates the 1984 international convention against torture and forcible sedation is against international law, Prof. Byers said.

As for shaving the beards of Islamic fundamentalists, he believes "it can only be designed to humiliate them."

Human-rights groups including Amnesty International and Human Rights Watch are also sharply critical of the U.S. treatment of the captives.

"Prisoners of war under the Geneva Convention are supposed to be housed in accommodations that are similar to those that regular troops are kept under," said Jim Ross, senior legal adviser for Human Rights Watch. "If U.S. troops were being held in a different country, under similar kind of conditions, I think the U.S. government would complain about it."

...


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## Infanteer (15 Jan 2002)

With the circumstances, I would not really concern myself with the Geneva Convention.  They were the ones who flew planes into our buildings, so we are playing by their rules.
Personally, I see the Conventions as the West‘s attempt to legitimize war, kinda tell ourselves its alright.  But it is bad either way, and someone has to do it.  If it came between soldiers lives and some set of "rules" to war, the choice would be obvious.  Remember, in the field, as the enemy is attacking, that we are probably the only ones who adhere to them.


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## rceme_rat (15 Jan 2002)

I can only hope that Infanteer‘s message is meant as sarcasm, along the lines of "kill them all and let God sort it out".  

If not, it represents what I would consider a most unprofessional ethic -- the sort that led to the AB debacle in Somolia and to the massacre at My Lai.

Review the article and consider the point about a soldier‘s obligations.  Recall that you are obliged to follow all legal orders - and that you are obliged to refuse all patently illegal orders.  "Just following orders" is a defence only if those orders can reasonably be considered legal.  

Blatant disregard for the Geneva Convention isn‘t exactly the way to establish reasonableness under the law.  And lawlessness in the affairs of nations is hardly a progressive move for civilization.


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## Disturbance (15 Jan 2002)

Would they treat american prisoners better or worse than what the tali‘s and alkayda have recieved thus far? 
You think the bodies of Randy Shughart and Gary Gordon were treated humanely?
Have they signed the geneva convention?

I dont know but I think it could be a lot worse than what is happening so far.


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## Pikache (15 Jan 2002)

Just because they do horrible stuff, does that mean we can?

Questions, questions, questions... of what makes us better than them.


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## Brad Sallows (15 Jan 2002)

Our manual on operational law can be found here:

 http://www.dnd.ca/jag/operational_pubs_e.html#top 

Bottom line: The 1949 Geneva Conventions (GC) I to IV (but not the 1977 Additional Protocols - AP I and II) are among the agreements which have gained the status of customary international law.  That means they are considered to apply to everyone now, not just those who ratified them.  The GC, and most other agreements, require one to abide by them even when fighting a foe who does not.  We do not throw away the rule book just because the other side fights dirty.

A definition of customary international law can be found in the glossary, which is in Part 1 of the manual.  Transcripts of various source documents of international law (including GC I-IV) are in the annex.  Bear in mind some of the texts are translated.

Who is considered a combatant and therefore entitled to treatment as a PW?  Evidently there is some disagreement, but my impression of the direction the agreements have taken over the years is to give the benefit of doubt and widen recognition of combatant status (and therefore protection as PW).  Regardless, there are other internationally recognized standards for humane treatment of detainees.


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## Infanteer (15 Jan 2002)

I‘ll take this down as it is not really relevant to the thread discussion.  See below for reply.
Infanteer


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## enfield (15 Jan 2002)

Infanteer.
Ok, great you‘ve thought about war. Congrats. You, nor I, have ever been in war, combat, or even anything more hostile than a bar fight.  

The Geneva Convention outlines certain actions that should be followed in combat - I would hardly consider them limiting, or restricting. Leaving the POW his gas mask and helmet doesn‘t hurt anyone. 

The entire point of every war this century is that we are morally superior to the enemy. Certainly this conflict is based, entirely, on the premise that civilization is better. A part of this civilization, which we are fighting for, is the Geneva Convention - and other things like hippies, Noam Chomsky, freedom of the press, and the right to get stinking rich.

These men are no real threat. Their war is over. They are controlled, they are essentially harmless. What possible reason is there to engage in barbaric treatment of them? Some sort of barbaric revenge? Half those guys have never been anywhere close to North America. They may be the enemy. They may be evil. But WE are still civilized.

Besides, we‘ve broken the Geneva Convention all sorts of times, so don‘t get high and mighty.


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## Spanky (15 Jan 2002)

Infanteer;
I have to agree with Enfield.  You are talking about two different things.  No one is questioning what happens in the heat of battle when it‘s kill or be killed etc.
The issue here, is what happens AFTER the battle is over.  One of the reasons we follow the Geneva Convention is because we are supposed to be better, morally, than the enemy.  Another is so we don‘t give the enemy reason to do the same or worse to our guys.
Did these guys start it?  Yes
Do they follow the "rules"? No
Do we stoop to their level? I hope not.
The Americans are not executing prisoners. The prisoners are being taken out of harms way, they are being fed and clothed, they are receiving medical attention, and they are going to be visited by the Red Cross.


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## Infanteer (15 Jan 2002)

Ok, I guess I went on a bit of a tirade there.  And This is only my opinon on what is definantly a touchy subject.  It does not really go with the context of the orginal arguement.
My problem with the article in question is that a law professor argueing through some legal approach that we were in the wrong and should feel bad about tieing some Taliban fighters hands behind his back.


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## Infanteer (15 Jan 2002)

Double Tap...


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## Disturbance (15 Jan 2002)

Are they really being treated that bad? Are their lives in danger because of the way they are being treated? Purhaps from their pov they are being treated ok considering their living conditions back home. What about the chaos that happened in the small uprising? Purhaps they dont want that to happen again. None of us know just how crazy these prisoners are. And lord knows I dont think Nic Cage would help us out again if another Con air were to happen.  

Enfield has already said our lines are being drawn and maybe if we follow the US lead on this issue it is going to make that line even thicker.


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## Pikache (15 Jan 2002)

Well, I don‘t think we want to get caught in another Koje-do incident during the Korean War again...
Or is that not relevant to the discussion here?

In any case, BBC reports some mildly interesting facts that we should be concerned about...

 http://news.bbc.co.uk/hi/english/world/americas/newsid_1762000/1762529.stm


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## garb811 (15 Jan 2002)

It‘s been a long time since I‘ve actually posted here but I can‘t let this one pass without comment.

Frankly I am shocked and disturbed by some of the comments and attitudes being expressed.  It does not matter whether or not "they" are signatories to the GC‘s or even if they abide by them in whole or in part. The important part is that Canada has signed them and, as such, they are Canadian Law as well as International Law. Saying things like "they flew the planes into our buildings so we‘re playing by their rules" does not make disregarding these vital pieces of law right, moral nor even justifiable.  How the other side chooses to fight and act does not, and can not, influence what we do in response.

In their treatment of these "detainees" the US is in the process of setting several very unsettling precedents and I am not sure we want to be involved in where they are heading lest we find our soldiers and citizens being treated in a similar manner in the future.


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## rceme_rat (15 Jan 2002)

Infanteer -

When commenting about "some law professor", consider that he is a well-recognised expert in his field:  PhD at one of the top law schools in the world, teaches at one of the best U.S. law schools, studied and published extensively in the area of international law over the past 12+ years.

Consider as well that our military actions are taken to achieve political goals.  Political goals are actions of governments -- and governments are subject to the rule of law.  Politics and law are entwined, so it should be expected that it would be "some law professor" who will be commenting.

He is not commenting on strategy or tactics, which you might say can‘t be learned until you‘ve been there - although I think many people with degrees in military science would disagree (implementation being a separate issue).  He is commenting on law.  I think his opinion counts -- it may not be correct, as only the courts will determine that, but it does raise some valid issues.

In short - we don‘t want the pols to tell us how to do our job, but we have to respect the parameters they give us to do our jobs within.  One of those parameters is the law.  In the short term, we‘re stuck with it as it is.  If a law is wrong, we can change it.  I have a feeling this one isn‘t going away.


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## Infanteer (16 Jan 2002)

Well, I invite Mr. Law Professor to go down to Khandahar and tell the the Marines and soon-to-arrive Patricias there what he feels is a serious violation of international law.
As for this arguement, I am going to withdraw as I can see I am taking some serious incoming rounds fighting for a losing side.
Infanteer Out......


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## Brad Sallows (16 Jan 2002)

Notwithstanding the fact I think some of those concerned with rights tend to grind the axe a little harder when the US is involved, I am interested to hear the US rationale for not treating the prisoners as PW.  I believe that in applicable law, "combatant", "non-combatant", and "unlawful combatant" are three distinct categories.  There is an article (1907 Hague Conventions) which states that "combatants" and "non-combatants" have a right to be treated as PW.  But an "unlawful combatant", I suppose, is neither.  I am also curious to know where it states that a country can‘t decide on its own whether combatants are lawful or not.

As for Canadian soldiers facing a dilemma, I don‘t see it.  If our gang is under opcom or opcon to a US formation, I would guess the US is the detaining power from the get-go, or Canada is an implied co-detaining power.  Battalions don‘t normally maintain PW pens.  Taken to a ludicrous extreme, if Taliban fighters surrendered to a Canadian on exchange with a US unit, would he be a war criminal for handing them over to US custody of the unit and its parent formation?  I think not.

I suppose the prisoners spending winter out-of-doors in Cuba are at least as comfortable as our soldiers spending winter out-of-doors in the Afghan wilderness, so I‘m not sure the accommodations are an issue.  I‘m also not sure wearing a bag on the head is any more inhumane than being forced to stay awake and sit on a wooden chair answering questions.


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## enfield (16 Jan 2002)

I as well have no problem with the way the PW - sorry, unlawful combatants - are being treated, detained, or transported. The US is completely correct to keep them under such tight control, there have been several incidence that prove these guys will keep fighting in custody. Separating and demoralizing them is a great way to start getting info. But they should be treated with basic human decency - no torture, food and medical care provided, etc. 
The only issue I see is why the US isn‘t calling them PW - there must be a reason they chose this (no doubt lawyers, equally if not better qualified than the one in the article., worked hard to choose it). I don‘t know enough about Int‘l law to speculate why.

I don‘t see this as a problem for Canada. Any PW exchanges will take place at a low level, an dvery quickly - the PPCLI won‘t hold them, there is a central processing scheme for them. These guys aren‘t just PW‘s - common PW‘s are being released - but suspects and witnesses.


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## Disturbance (16 Jan 2002)

garb- you talk about how the US is in the process of setting several very unsettling precedents. I still do not know what those are.

I totally agree with what brad and enfield and infanteer are saying. They are prisoners not guests at the Hilton. Do you guys also think they are going to be getting paid as well while they are being detained?  How about them opening up their own canteen? Cause I would definately want to buy a love-camel.  The US isnt a bunch of animals, they arent going to kill the prisoners or let them die on their own. All they have been so far is been protective  and that is for their own sake. 

How the other side chooses to fight and act does not, and can not, influence what we do in response. I am not so sure I agree with that. Sometimes you just have adapt simply because of the way the other fighting or acting.  I am assuming you do not agree with the men of Task Force Ranger and how they handled themselves in that dire situation. But if they didnt fight on their terms I am absolutely positive many more lives would have been lost.

I am also surprised noone has brought up Isreal yet. Because they are one of the "western" countries that fights dirty, and they kick ***  at fighting wars.


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## Marauder (16 Jan 2002)

Infanteer, Disturbance:
Just remember lads, after you, me, and Bloggins finish taking the trenches and the SGT calls for the re-org, the only things walking, creeping, crawling, or swearing should be another pendulating richard from our section, one who has a subdued maple leaf on his left shoulder and says "Eh" a lot. Then you don‘t give the law professors and peaceniks a chance to feel "western guilt" about the civilian-slaughtering *******s who were just busy trying to ventilate you and buddy... er, sorry, the "unlawfully detained dispossessed persons of a possible freedomfighter persuasion".


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## rceme_rat (16 Jan 2002)

Brad, the determination of status is a matter for the courts, not a matter for the state to determine arbitrarily.  I suppose that will be one of the first issues dealt with by the defence team.  I would expect such an issue would be dealt with promptly, much as with detention upon arrest.  Of course, questions have been raised about the arbitrariness of other related detentions.

The more interesting legal question is whether liability arises under the detention system - i.e., where a soldier turns over the captured combatant to a higher formation, does he bear any liability for the treatment of that combatant?

It is interesting because at first glance, it would seem that since the soldier has no control over the treatment, he couldn‘t be liable.  However, the concern arises that the soldier, being aware of an illegal detention policy, becomes liable if he turns over the combatant to be subjected to it.  

Personally, I would think that individual soldiers in this case would be shielded from liability, unless the policy is clearly illegal.  This doesn‘t resolve the issue of Canada‘s adoption of the U.S. policy -- while an individual Canadian soldier on exchange might be directly subject to U.S. command, the senior Canadian formation commander will have responsibilty to both the Canadian government and to his American operation commander.  If the Canadian analysis differs from the U.S. one, then a Canadian detention policy would be required. 

My other observation is that the thread really has two discussions - the first is roughly along the lines of "do we really have to follow the Geneva Convention, even if we don‘t like the other guys?" and the second is"are the captured combatants being treated appropriately?".  

Given that the answer to the first is clearly "Yes", the military problem is solved.  The problem posed by the second question is much more a political one.  In essence, the question revolves around civil rights.  The short answer is that governments - particularly large, powerful, democratic governments - ignore civil rights at their peril.  Here, I don‘t think it would be terribly difficult for the U.S. to treat these combatants as PW rather than as unlawful combatants until their status is resolved.  Taking the high road should be the preferred option. 

Finally, to suggest that the U.S. government isn‘t a bunch of thugs and therefore  what they do can‘t be that bad, is to be incredibly naive.  Not because they are hugs, but because the development of the U.S. Constitution, and of our own (including the Charter), is based on the opposite premise - that governments should not infringe on personal liberties except to the extent reasonably necessary.

As for certain comments made by others, I am really dismayed at the underlying tone.  E.g., to suggest a Rambo-esque "don‘t take prisoners" approach is to forget the experience of the Gulf War (where whole battalions surrendered) or the long lines of prisoners being marched to detention in WW II.  The reality is that professional, well-disciplined soldiers will take prisoners.  Cut and dried, to shoot a combatant who has surrendered is murder.


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## Yard Ape (16 Jan 2002)

*American avoids fate of foreign Taliban detainees* 
Wednesday, January 16
By PAUL KORING and ALAN FREEMAN
From Wednesday‘s Globe and Mail

The U.S. Justice Department unveiled plans Tuesday to prosecute its only American captive from Afghanistan in a civilian court while non-American detainees face different standards and are consigned to a military prison in Cuba that is coming under growing international criticism.

U.S. Attorney-General John Ashcroft said Tuesday his government plans to charge John Walker, the Californian who took up arms with the Taliban, with abetting terrorism and conspiring to kill U.S. soldiers. If convicted, the 20-year-old could face life in prison.

But he was spared a possible death sentence, Mr. Ashcroft said, because he will not be charged with treason.

...

But the same legal process will not be applied to scores of other pro-Taliban fighters, possibly including three Britons, who have been captured in recent weeks and sent to a controversial prison at a U.S. military base in Cuba, Mr. Ashcroft said.

He said Mr. Walker, unlike his fellow fighters, will not be tried in the military tribunals established by President George W. Bush because "according to the military order issued by the President, it‘s for dealing with non-citizens of the United States."

There is growing concern that the military tribunals to be held at Guantanamo Bay will not be subject to international law, and could order the execution of some prisoners. The U.S. military has been criticized for its treatment of prisoners, who have been manacled, hooded and shackled en route to Guantanamo Bay, where they are to be housed in cage-like enclosures.

The tribunals may also compromise Canadian soldiers who will join U.S. combat forces in Afghanistan, legal experts said Tuesday.

Toronto criminal lawyer Clayton Ruby said Canadian soldiers are bound to abide by the Charter of Rights and Freedoms, even if they are involved in operations outside the country.

...

Michael Byers, a Canadian who teaches international law at Duke University, believes the death penalty poses a serious legal problem to Canadian troops because of a landmark Canadian Supreme Court ruling last year. The court said Canada could not extradite two men in Vancouver accused in a triple slaying in the United States, unless U.S. authorities guaranteed that the accused would not face execution if convicted.

"Any transfer that could involve the death penalty would have to be subject to judicial review before it could go ahead," Prof. Byers said of the situation for Canadian troops.

...

So far, U.S. authorities have identified at least three Britons among the 50 men being held at Guantanamo Bay. British Foreign Secretary Jack Straw said Tuesday he raised the question of their fate in a weekend conversation with U.S. Secretary of State Colin Powell and was assured they would enjoy "rights customary to national law."

Mr. Straw refused to criticize the Americans for their treatment of the prisoners, telling the British Broadcasting Corp. that they are "potentially profoundly dangerous" men who may have played important roles in the Sept. 11 attacks.

...


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## Yard Ape (16 Jan 2002)

*When is a PoW not a PoW?* 
By MARCUS GEE
Tuesday, January 15, 2002 
Print Edition, Page A11

The third Geneva Convention, concluded in 1949 and signed by the United States, Canada and more than 180 other countries, sets out international standards for the treatment of prisoners of war.

Known formally as the Convention Relative to the Treatment of Prisoners of War, it says belligerents must treat prisoners humanely, providing them with adequate shelter, food, clothing and medical care; must supply information about them; must permit them to correspond with their relatives, receive relief supplies and be visited by neutral groups such as the Red Cross, and must not pressure them to reveal more than a minimum of information.

The United States argues that the prisoners it has taken in Afghanistan are not PoWs under the convention but "unlawful combatants."

Some legal scholars challenge that judgment. They point out that the convention has a broad definition of PoW. According to Article 4 (1), the term refers to "members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces."

It can also apply to irregular militias and resistance fighters provided that they are commanded by a "a person responsible for his subordinates;" that they have a "fixed distinctive sign recognizable at a distance," such as a uniform or other identifiable marking; that they carry their arms openly; and that they "conduct their operations in accordance with the laws and customs of war."

If that were not enough, Article 5 of the convention says that if there is any doubt that a captured person fits those criteria, "such persons shall enjoy the protection of the present convention until such time as their status has been determined by a competent tribunal."

Jordan Paust, who teaches international law at the University of Houston, says the prisoners from Afghanistan qualify as PoWs under the law, and Washington should treat them as such. "These may be nasty folks, but even nasty folks are entitled to the basic protections of international law," he said.

There is no immediate penalty for countries that break the Geneva Conventions. No tribunal enforces the conventions, which rely on the shame or the good faith of the signatories for their force.

But countries that break the convention could conceivably be taken to the World Court in The Hague. Thus, if Canada were to take part in the seizure of "unlawful combatants" in Afghanistan, it could technically be guilty of complicity in war crimes, Prof. Paust said.

"Canada has an obligation not to turn people over to another country when there is a risk they will be deprived of their rights under the laws of war," he added.

Ottawa could also face prosecution under Canada‘s own war-crimes law, said Prof. Michael Mandel of York University.


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## Brad Sallows (16 Jan 2002)

A quick skim of our own QR&O "Prisoner-of-War Status Determination Regulations" (on-line, "unofficial")
 http://www.dnd.ca/admfincs/subjects/qr_o/vol4/appx15_e.asp 
seems to indicate that determination of status is _not_ a matter for "the courts".  I must suppose Canada has determined we are within our rights to make the determination independently within the military chain of command, and I must also suppose the US and other countries may feel the same way within the LOAC as written.  As near as I can tell, a status tribunal consists of a sole appointed JAG lawyer.

It is clear that when doubt exists, a detainee is to be treated as a lawful combatant (ie. PW) until explicitly determined to be unlawful.  If the US has not undertaken determination procedures, they are in the wrong.  If the US has undertaken such procedures, there is only a difference of legal opinion.  I agree it would cost the US nothing to treat the prisoners better - perhaps tents inside a wire compound rather than individual cages.  As for the manner of transport, when the prisoners are part of a gang that has a demonstrated propensity for self-disregard, it is simple prudence to restrain them.  The LOAC constantly evolves; the 1949 drafters probably didn‘t foresee the custody problem of dealing with fanatics who would cheerfully die if they could take a few enemies with them.  Manacles seem in order.  Maybe for the same reason, individual enclosures are in order.

I didn‘t think Canadian non-military law had any jurisdiction on military persons serving outside Canada.  Comments?

I can‘t imagine why a combatant should be subject to risk of death or injury in war, and then by virtue of being a PW should suddenly be immune to execution because a nation‘s civil law doesn‘t permit it.  PW status should not be a "get-out-of-execution" free card for those who have committed grave crimes.  Rehabilitation is irrelevant.  Retribution and deterrence are relevant.

We can have an "angels on the head of a pin" discussion, but in practical terms I can‘t imagine a Canadian soldier being tried for turning over PWs to a superior US commander when the alleged mistreatment is such small beer.  It hasn‘t escaped my attention that crimes either need to be committed on a vast scale (eg. Milosevic) or of exceptional brutality (Somalia) to merit the effort of a trial.  I trust the well-meaning souls (lawyers, professors, and journalists) will first devote their efforts to the much larger crime against humanity of destruction of cultural artifacts (those large Buddha statues), or the fight for civil rights in places like Afghanistan, Tibet, China, etc.  Surely they‘re above plain old US-bashing and publicity posing.


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## Disturbance (16 Jan 2002)

rceme_rat: I am trying not to sound "incredibly naive" but that fact is that the world is watching the states right now and how they handle this prisoner deal. If the poopoo goes sour there could be serious reprecutions(sp), so based on that I am going to infer that the states will not shove bamboo slivers under their fingernails.

And again I will restate, from what I see it just looks like a maximum security prison. Of course it sucks but its not suppose to be fun. We cant comment on what we dont know and who knows what is happening behind closed doors so I am not going to guess.

And we are still sane here, just because we have different opinions doesnt mean marauder is going to kill someone when a guy waves a white flag. Well I guess I can only speak for myself.


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## Yard Ape (17 Jan 2002)

*Canada defies U.S. on PWs* 
By DANIEL LEBLANC
From Thursday‘s Globe and Mail
Thursday, January 17

Ottawa — The first Canadian troops have arrived in Kandahar to find their freedom of movement could be limited by a looming dispute with the United States over the treatment of prisoners.

The federal government said Wednesday that Canada will treat all prisoners of war in Afghanistan according to international law. Growing criticism around the world accuses the United States of ignoring Geneva Convention rules on PoW treatment as it moves the men it captured to a U.S. naval base in Cuba.

"All the individuals...captured or detained will be afforded humane treatments, according to the standards that are applicable to PoWs, and that‘s according to international law," Canadian Defence Department spokesman Sub-Lieutenant Pierrette LeDrew said Wednesday.

U.S. officials do not call the captured Taliban and al-Qaeda supporters PoWs but "unlawful combatants." Lt. LeDrew said Canada‘s policy will be different.

"If there is any doubt as to whether or not they are entitled to that [PoW] treatment, they will be treated as such until a special tribunal, or a properly constituted tribunal, has determined that this person is or isn‘t a PoW," she said.

The Americans, who are leading the military campaign in Afghanistan, have said that the combat troops of other countries are expected to hand over prisoners; if they don‘t, the troops will be positioned in areas where they will not come in contact with potential detainees.

"Either a country will indicate that they will turn them over to us — quite apart from whether or not their laws may be different with respect to the death penalty — or they will be positioned in places where they‘re unlikely to come in contact with someone that we would like to have control over," U.S. Defence Secretary Donald Rumsfeld said last month.

...

Mary Robinson, the United Nations High Commissioner for Human Rights, said Wednesday that most legal experts disagree with Washington‘s view that the fighters are "illegal combatants" and therefore not protected by the Geneva Convention on prisoners‘ rights.

Ms. Robinson noted that if there were any doubts about their status, the Geneva protocols, which the United States and Canada have signed, call for the question to be decided by a tribunal.

The issue is expected to be in the spotlight Thursday when Defence Minister Art Eggleton and General Ray Henault, Chief of the Defence Staff, appear before a joint meeting of the defence and foreign-affairs committees of the House of Commons.

...


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## rceme_rat (17 Jan 2002)

The tribunal ordered to determine the status of a prisoner is not a court of law ("Court") - in the same way that other tribunals in Canada are not Courts.  Trbunals are designated as the responsible agency for certain matters and may be thought of as "small-c" courts, however, since their decisions are ultimately reviewable by Courts.  Your career, for example, may be terminated by a Career Medical Review Board, a specific example of a tribunal.

As the regulation notes, the tribunal is a single JAG officer.  JAG officers are not under the chain-of-command but are independent, specifically to avoid influence from the chain-of-command.  The decision is reviewable, likely though a military judge, the Court Martial Appeal Court, and ultimately the Supreme Court.  There are also provisions regarding representation.  All in all, it is a pretty standard form of tribunal and is far from an arbitrary determination by the state.

As for the point regarding the detention centre being a maximum security prison -- when was the last time you were in one?  I have been in both a maximum and a medium, and have had the opportunity to fly over the Kingston Pen (strange, but true), and I didn‘t note any open-to-the-weather cages.  They were not particularly pleasant places to be in - too many murders and rapists for my liking - but they were not brutal by their very existence.

I‘m glad the article regarding the effect of the Burns decision was added.  The extradition question is interesting - does the Charter apply outside Canada?  Particularly to non-Canadians?  
While it would to Canadian soldiers charged under the Code, there is argument for and against its application to RCMP actions taken outside the country against Canadians.

As for when Canadian law applies to Canadian soldiers serving outside Canada, two quick observations.  The first is that all Canadian law, including Canadian military law, is subject to the Constitution.  The second is that little proviso in the code about acts that would be offences under the Criminal Code.  So, things you do outside the country might get you charged the same as if in the country, but civil actions might be under the law of the host country (it opens up a very specialized area of law referred to as Private International Law, or Conflicts -- not to be confused with the Law of Armed Conflict!).

Finally, we should always remind ourselves that these prisoners, regardless of status, have yet to be convicted of anything.  Being accused of something, no matter what it is, does not justify the exclusion of rights without proper legal proceedings.  For example, the shearing of the prisoners beards is an assault and a violation of religious freedoms.  It can serve only to degrade and humiliate.  It is not justifiable.


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## centurion (18 Jan 2002)

All the legal mumbo jumbo aside. I suppose the Cretin, our learned legal sytem, and our fifth estate will not be satisfied until these "TERRORISTS" are esconded within the low wire obstacles of Canada‘s minimum security facilities. They can go to BC, and enjoy golf, horseback riding and 12 hr passes to downtown Vancouver while they await trial.


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## Infanteer (18 Jan 2002)

ROTFLMAO!!!
Finally, someone has brought this thread back to Earth....


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## rceme_rat (18 Jan 2002)

I wonder whether there will be places for any criminals in BC.  Recent news is that 24 courthouses and 8 jails are being closed.  No details as to whether the 8 are local lock-ups or if they include more serious institutions.  Perhaps it will all be conditional sentences and electronic monitoring from now on.

For what it‘s worth, I can‘t imagine the DB is classed as anything more than a minimum security facility.  Of course, the daily schedule is a little more straining than it would be anywhere else.


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## rceme_rat (18 Jan 2002)

It looks like the point has been decided - and one would assume it was well-considered.  Then again, I‘m a little skeptical of the Minister‘s credibility in the press recently.  Btw, the land mines issue introduced at the end of the article is interesting.  If the U.S. troops lay the land mines, Canadian troops could rely on their protection --  a loophole in the mines treaty.

...........

From the National Post, online edition, 18 Jan 02

Canadians will turn Afghan prisoners over to the U.S., says defence minister

JOHN WARD
Canadian Press

Defence Minister Art Eggleton (right) and Chief of National Defence Staff General Ray Henault in Ottawa. (CP/Fred Chartrand)


OTTAWA (CP) - Canadian soldiers in Afghanistan will hand over any prisoners they take to the Americans, Defence Minister Art Eggleton said Thursday.

The minister, answering questions after appearing at a Commons committee, said Canadian troops won‘t have detention facilities for prisoners. However, soldiers will follow Canadian and international law in taking prisoners, the minister told the committee earlier. The Americans have flown some prisoners - blindfolded and shackled - to a camp at the U.S. base in Guantanamo, Cuba. Their treatment has raised an outcry in some circles.

But Eggleton told the committee earlier Thursday the U.S. military is treating prisoners in accordance with international law.

Outside committee he said he has "no reason to believe that they are not being handled in accordance with international law."

"I understand the concerns of people who have seen people hooded and taken away in airplanes to another area of operations," he said. "It is part of the responsibility of the United States to ensure that it follows international law.

"It is up to the International Committee of the Red Cross as a designated party to monitor that situation and to determine in fact whether these people have been treated fairly."

He said he has no evidence that prisoners have been mistreated.

Jim Wright, assistant deputy minister of foreign affairs for global and security policy, told the MPs later that Red Cross officials were in Ottawa on Monday and had no complaints about U.S. methods.

The officials were on their way to Guantanamo to inspect the facilities and talk to detained Taliban and al Qaida fighters. 

"At no point in these discussions did they turn around and say that the Americans were not living up to their obligations," Wright said. 

Darcy Christen, a Red Cross spokesman in Geneva, said the organization will comment publicly after inspecting the Guantanamo prison.

Human rights campaigners have criticized a decision to house prisoners in cramped cells open to the elements.

As of Thursday, 110 prisoners had been flown to Guantanamo from a holding centre at a Marines base in the southern Afghan city of Kandahar.

About 750 Canadian soldiers will join a U.S. unit in Kandahar next month. The soldiers, from the 3rd Battalion, Princess Patricia‘s Light Infantry and Lord Strathcona‘s Horse (Royal Canadians) from Edmonton, are expected to leave Canada near the end of this month and be operational in Kandahar by Feb. 15.

Eggleton said their rules of engagement and for handling prisoners are still being fine-tuned. But he said they would be similar to those of the United States.

Asked what Canadian soldiers would do if their U.S. counterparts deployed land mines, Eggleton said: "Canadians will not be laying land mines. I don‘t anticipate the Americans will be laying land mines."

Canada has outlawed the use of such mines; the United States has not.


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## Marauder (18 Jan 2002)

Yeah, I‘m all about blowing away another trained soldier fighting for his country after he decides he‘s had enough and he‘d rather just sit the rest out so he can go back to banging the wife and looking after his kids.   
I‘d much rather turn loose well-armed religious fanatics who pal around with someone who likes to get mindless numpties to fly planes full of women and kids into rather large buildings full of people whose crimes range from defending their country (huh, kinda like we want to) to making a buck to support the economy and keep their kids and partners housed and amused. Hey, I feel Al-Quada‘s pain.   

"Finally, we should always remind ourselves that these prisoners, regardless of status, have yet to be convicted of anything. Being accused of something, no matter what it is, does not justify the exclusion of rights without proper legal proceedings."

Kinda like the 3000 or so that had their right to breathe taken away by these guys idealogical brothers?

"For example, the shearing of the prisoners beards is an assault and a violation of religious freedoms. It can serve only to degrade and humiliate. It is not justifiable."

Well, I can think of a thing or two that can be hidden in a big old "Taliban Brand" beard and then used to harm/maim/kill a soldier, Marine, or airman before they can be locked into an iso cell.
Wonder if Micheal Spann would still be an anonymous face in the crowd if the Northern Alliance stooges in that prison had been a little more careful in controlling the TERRORISTS under their watch.


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## Gordon Angus Mackinlay (20 Jan 2002)

Ladies and Gentlemen,
This abridged article from the London, Sunday Times, 20 Jan 2002, is of interest to this discussion.

Yours,
Jock in SYdney  

Victors‘ justice helps revive the beaten monster 
By John Simpson

YOU can sense the growing unease. From the International Red Cross to the British Foreign Office (though not yet, apparently, Downing Street) there is a feeling that the way the United States is dealing with its prisoners from Afghanistan is not right.

The White House formula for conditions at Guantanamo Bay - "humane but not comfortable" - may come to sound increasingly embarrassing in the coming months. And the danger is that, after dominating the moral high ground for months, Washington could now be shifting away from it without realising.

The latest critic is Judge Richard Goldstone, the South African who served as chief justice of the international tribunal at The Hague in the 1990s. He takes exception to US efforts to make out that the prisoners are illegal combatants and therefore not protected by the Geneva Convention. Either they are prisoners of war, says Mr Goldstone, or they are ordinary criminals who should be brought before the courts. There can be no third category. The International Red Cross agrees.

Washington, though, is in a mood to brush aside these complaints. Most Americans find it hard to understand why distinguished jurists, human rights groups or Anglican bishops should be so worried about the prison conditions of men who have wholeheartedly supported terrorism.

Yet, if the "illegal combatant" formula has no standing in international law, and the Geneva Convention applies to the prisoners from Afghanistan as it does to any every conflict, the US has a problem. The convention doesn‘t approve of drugging or shackling prisoners, and it contains provisions covering the forcible shaving of beards - one of the key evidences of obedience for a devout Muslim.

Tony Blair tried hard last week to shore up the "humane but uncomfortable" line by pointing out that the Taliban kept their prisoners in abominable conditions. However, the Geneva Convention doesn‘t say that if the other side has treated its prisoners badly, you are allowed to treat yours the same. The whole point of it is to stop that kind of thing by setting out civilised rules of behaviour in time of war; and a country that is defending the standards of civilisation ought surely to stick to the rules with particular care.

After any war, the victors‘ behaviour determines the future of the dispute. Generosity and forgiveness will eventually draw the poison; vengeance and harshness merely cause it to fester and spread.

The US was wiser and more generous than Britain in its approach to Germany after Hitler‘s defeat and, as a result, Europe and the entire world have benefited. Britain and much of American public opinion wanted the German state dismantled and de-industrialised; but Presidents Roosevelt and Truman became convinced that only a decent and properly run Germany could be a reliable partner. They have been proved right.

The key to real, lasting success for President Bush after September 11 was not merely to destroy the Taliban and capture Osama bin Laden, it was to demonstrate to moderate Muslims around the world that the War on Terrorism wasn‘t a war against Islam.

An even-handed approach to the Palestinians would have done wonders. Instead, Washington has done almost nothing to stop Ariel Sharon‘s Israeli government from carrying on pretty much as it chooses. Increasingly, even middle-of-the-road Muslims feel anger and despair, and the extremists begin to sense a new opportunity.

When the Northern Alliance captured Kabul, it was clear there was no support for the Taliban in Afghanistan, and nothing but hatred for al-Qa‘eda‘s foreign volunteers. In places such as Pakistan, support for violent extremism fell away, but the way the US is treating its defeated enemies is helping to revive the monster.

A civilised country should behave according to the rules both during and after any war, or run the risk that it will have to fight again, perhaps with less success. At the moment, American public opinion seems to want revenge on al-Qa‘eda and the Taliban, rather as it wanted Germany to suffer in 1945. But a wise government consults more than the opinion polls - it looks to the future. And it should check out the international conventions it has signed.

John Simpson is the BBC world affairs editor.


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## portcullisguy (20 Jan 2002)

> Originally posted by Enfield:
> [qb]
> These men are no real threat. Their war is over. They are controlled, they are essentially harmless. What possible reason is there to engage in barbaric treatment of them? Some sort of barbaric revenge? Half those guys have never been anywhere close to North America. They may be the enemy. They may be evil. But WE are still civilized.
> [/qb]


I am almost positive that the Northern Alliance troops who were guarding the now infamous prison near Mazar-i-Sharif in November 2001 thought that their Taliban and al-Qaeda detainees were also "controlled" and "essentially no threat".  And then they revolted, used smuggled arms to kill a CIA agent, among others, and fight a 3-day pitched battle.

No, I think blindfolds and strict control of movement of these prisoners now being brought to the Guat are the safest and most effective means of preventing any further revolt or disturbance, and therefore increasing the safety of the detainees as well as the detaining power.


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## portcullisguy (20 Jan 2002)

> Originally posted by Yard Ape:
> [qb]The tribunals may also compromise Canadian soldiers who will join U.S. combat forces in Afghanistan, legal experts said Tuesday.
> 
> Toronto criminal lawyer Clayton Ruby said Canadian soldiers are bound to abide by the Charter of Rights and Freedoms, even if they are involved in operations outside the country.
> [/qb]


This quoted news article should tell it like it is and not dance around the issue.

Clay Ruby is a noted Toronto civil rights lawyer who happens to do criminal cases.  His bent is apparent to anyone familiar with him.  Of course he will argue the Charter applies.

The Charter didn‘t exist in 1945, when Canadian soldiers fought in Europe, nor did it exist when Canadians were in Korea.

To assume the Charter should apply to foreign citizens on foreign soil during armed conflict is absolutely beyond the pale.

Canadian courts have no business, nor jurisdiction, accounting for anything that happens under such circumstances.

It is strictly for military laws and courts, and within the jurisdiction of International laws of armed conflict.  Clay Ruby should go back to worrying about wrongfully arrested shoplifters.



> [qb]Michael Byers, a Canadian who teaches international law at Duke University, believes the death penalty poses a serious legal problem to Canadian troops because of a landmark Canadian Supreme Court ruling last year. The court said Canada could not extradite two men in Vancouver accused in a triple slaying in the United States, unless U.S. authorities guaranteed that the accused would not face execution if convicted.
> 
> "Any transfer that could involve the death penalty would have to be subject to judicial review before it could go ahead," Prof. Byers said of the situation for Canadian troops.
> [/qb]


Well, yet one more "opinion".  I don‘t see how the circumstances compare.  One is a triple-murder suspect not yet tried or convicted in a death penalty state, strictly a civilian criminal matter.  The other circumstance involves armed combatants (lawful or not) captured or who surrendered to soldiers on a battlefield in a foreign country.  I don‘t see the link.



> [qb]
> So far, U.S. authorities have identified at least three Britons among the 50 men being held at Guantanamo Bay. British Foreign Secretary Jack Straw said Tuesday he raised the question of their fate in a weekend conversation with U.S. Secretary of State Colin Powell and was assured they would enjoy "rights customary to national law."
> [/qb]


I am really surprised that Britain should take such an interest.

Where has Britain been when their citizens, many of them trained by their own government and with veteran service in Britain‘s armed forces, were fighting for various factions, governments, non-governments, and private companies in places like Africa during the 1970s and 1980s, who were captured as part of their mercenary activities?

Were they also fighting for the rights of these people, often deemed unlawful combatants and put to death by nations not so willing to accept the fundamental principles of international justice?

While it‘s fine that Britain should show some concern for the treatment of their citizens, anywhere in the world, let‘s put this into perspective:  They are prisoners, who were captured armed, and fighting a war in a foreign country, completely unrelated to any interest beneficial to the British Crown.  Regardless of whether they are treated as PWs or whatever, there are certain priorities here, adn the fact remains that it is the United States who has them in custody.  Let them do their job.

*Last but not least...* I have this to say:  All of this heady, political nonsense is for talking heads to sort out, not for soldiers to concern themselves with.  As far as I am concerned, the troops should (and have been) following their lawful orders, which they know are not contrary to their conscience, and the end result will be the safe detention of potentially murderous has-been combatants.


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## Fishbone Jones (20 Jan 2002)

Clayton Ruby is a feces stirring dink, plain and simple, has been for the last thirty years.


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## enfield (20 Jan 2002)

Personallyt, I think the US has taken the right step, but it needs clarification.
This is a war against Terrorism, not a nation or the mafia. They are criminals, but on such an internationla scale that nationla constitutions, laws, etc., cannot apply. 
These men are suspected of being directly involved in a world wide terrorist organization. If they are treated as PW‘s, well, they can all go free - but they are not soldiers of a nation. They are criminals.
However, to treat them as criminals raises problems- should they be read their rights? Were they exposed to brutality in arrest? Were they truly "arrested" or "captured"?
The Military Tribunals are another expression of this. I think it‘s too much to expect all - what 300? - of them to go through an American court battle. Evidence and due process cannot exist in this situation.

There‘s a new extra-national entity out there. 
I personally have no problem with them being shaved and locked up in a corner of the Caribbean in cages.


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## rceme_rat (21 Jan 2002)

The underlying theme of the last few posts seems to be that civil rights are not a concern as long as the violations are aimed at large numbers of non-citizens accused of heinous crimes.

Sorry, can‘t buy it.  These prisoners may or may not be guilty of the crimes they‘ve been accused of.  Most probably are, but this doesn‘t justify violating their rights.  The ends does not justify the means when it comes to justice.

Large numbers of accused?  It‘s been dealt with before; it can be dealt with here.  They will either have a series of individual trials, or more likely a number of trials of groups of individuals involved in similar circumstances, events, etc.

Weapons hidden in beards?  Did someone really suggest this?

As for personal attacks on lawyers -- I‘m sure Mr. Ruby has been called far worse things in far more imaginative terms.  Nonetheless, he does a good job at protecting your rights by standing up for people who only deserve his help because they live in a society which recognizes that if you don‘t protect everyone‘s rights, you might as well return to lynch mobs.

Agian, for the common soldier, there probably is no problem with capturing people and turning them over to higher authority.  Somewhere along the line, though, there will be an assessment of whether human rights were violated - and if so, what the remedy should be. In the U.S., Canada and elsewhere, confessed murderers have been allowed to go free because of such violations.  Why allow the possibility here when it could be easily avoided?


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## JRMACDONALD (22 Jan 2002)

HEY EVERYBODY- how many Wehrmacht soldiers died under Allied control in Europe,( what conditions were they kept under, theres a book out , forget the name.) after war ceased? Were they sent home right away?  not going to mention what the Soviets did. Geneva COnvetion is like a telephone- it works both ways!!!


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## Spr Earl (22 Jan 2002)

I posted on another thread but as I said there I‘m glad I‘m not one of our lad‘s over there due to the fact I would be thinking " Will I go To jail " if I carry out this order?Who is giving me this order a Yank or Canadian Officer?
Also this would I trhink it will effect operational 
attitude of the our people there.

 To one and all the Geneva Convetion and the U.N. Bill of Human right‘s applies to every one in the world but the Yank‘s don‘t seem to think so even there own CONSTITUTION seem‘s to only apply to them selve‘s?

 Even at the Nuremberg Trial‘s all had due process and legal aid according to International Law wheather they were military or civilian and all were traeted better than those who are in Cuba now.

 Those of us who have been over sea‘s and have had our course on how to treat prisoner‘s know right now as Canadian‘s if we treated prisoner‘s as the Yank‘s are now we would be in jail according to our own Military Law and cival law!

 Two wrong‘s do not make it wright!


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## Infanteer (22 Jan 2002)

> As for personal attacks on lawyers -- I‘m sure Mr. Ruby has been called far worse things in far more imaginative terms. Nonetheless, he does a good job at protecting your rights by standing up for people who only deserve his help because they live in a society which recognizes that if you don‘t protect everyone‘s rights, you might as well return to lynch mobs.


Nope, I think I do a good enough job of protecting my rights with my C-7.  I don‘t need no lawyer who makes a living off of trying to set rapists free to help me do that.


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## RCA (22 Jan 2002)

I am reading a lot of crap on this thread that doesn’t make this country great. I hope it has nothing to do with the fact these people aren‘t the same as you and I. I didn‘t hear this much bulls**** when Yugoslavia blewup and thousands were slaughtered by non-soldiers. Interestingly enough, they were put in front of an international court for crimes against there own, whereas 9/11 was international with multi-countries involved. Proves who ever has the biggest stick gets to make the rules. (as an aside, the US did not sign an international treaty in regards to war crimes because of the possibility of US citizens being tried by foreigners, but obviously they have no qualms about doing the same to others.

The unilateral declaration of “unlawful combatants” is just a ploy to try the persons under secret military tribunals. And why is it subject to some and not others. (ie Walker) Is the actual crime linked to Sept 11. or is it backing the wrong side. Basically the US declared war on Afghanistan, and for those who chose to fight back and defend their territory can’t be declared “unlawful combatants”. Otherwise the same could have applied to VC or Iraqis.

Regardless of circumstances, reason and logic dictate and we d follow the Geneva Convention. As to turning prisoners over, it is a non-issue. The PPCLI will do so under US command. The US treatment however is suspect. Open air cages and the shaving of beards is strictly punitive and will cause problems latter on by its short –sightedness. The shaving of beards is a direct insult to Muslims and done for no other reason then humiliation. For that ignorant member who suggested that they might conceal a weapon in there. Give your head a shake dopey. It like saying they are going to take your crucifix away because you can sharpen it into a knife. Give me a break.

For those who think their treatment is better then they deserve, I’m surprised you didn’t suggest saving the expense of flying them at all, and just take them behind the wall and shooting them. Hasn’t Somalia taught us anything. If any of you are in the CF, god help us all. Because you are neither ethical nor professional, and I sure wouldn’t want you beside me, because to you get emotional carried away, and are blinded to what is right and wrong.

The means does not justify the ends


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## Yard Ape (22 Jan 2002)

We may find out soon what the US legal system thinks of the detentions.

*Prison camp faces rights challenge* 
By JOHN IBBITSON
With reports from Reuters, AP and The Guardian
Tuesday, January 22, 2002 – Page A1
Globe and Mail 

WASHINGTON -- Civil libertarians launched the first legal challenge yesterday to the U.S. government‘s handling of al-Qaeda and Taliban prisoners at Guantanamo Bay, even as British Prime Minister Tony Blair dismissed concerns about alleged mistreatment of the detainees.

Former U.S. attorney-general Ramsey Clark and other civil-rights advocates have petitioned for a writ of habeas corpus, challenging the murky legal status of the prisoners at the Cuban military base-turned-penitentiary.

U.S. District Court Judge A. Howard Matz has agreed to hear their petition this morning.

If granted, the writ would force Washington to bring the prisoners before a court and list the charges against them. Thirty-four more detainees arrived at the base from internment camps in Afghanistan on Sunday and 14 more arrived yesterday, bringing the total to 158.

"These individuals were brought out of their country in shackles, drugged, gagged and blindfolded, and are being held in open-air cages in Cuba," said coalition member Erwin Chemerinsky, a law professor at the University of Southern California. "Someone should be asserting their rights under international law."

The first question Judge Matz must answer is whether the U.S. District Court in Los Angeles, where the petition was filed, has jurisdiction over prisoners held at a military base outside the United States.

It is to frustrate such legal challenges that President George W. Bush‘s government chose Guantanamo. The administration has refused to classify the captured Taliban and al-Qaeda as prisoners of war, which would qualify them for the protections of the Geneva Convention, or as civilian arrests, which would bring them within the scope of civilian courts.

Instead, while observing most of the strictures of the Geneva Convention, U.S. officials want the freedom to question the prisoners without benefit of counsel and to choose whether to deport them to their country of origin, to refer them to the civil courts or try them under special military tribunals that Mr. Bush created late last year.

...


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## Infanteer (22 Jan 2002)

Unfortunatly, "right and wrong" can be very relative to the situation and to the participants involved.  This preaching of morality that appears in the articles (and on this page) appears to have the same bent as Lloyd Axworthy‘s "pulpit diplomacy".  How can Canadians sit back and declare what (or who) is right or wrong, just or unjust, legal or illegal?
To me, all this arguement is besides the point, as we have no choice but to accept American actions, for "the standard of justice depends on the equality of power to compel and that in fact the strong do what they have the power to do and the weak must accept what they have to accept."


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## rceme_rat (22 Jan 2002)

Canadians not only  _can_  but  _must_  decide if these actions are appropriate if they are going to be a major player in the on-going actions.

Otherwise, it shows that Canada is merely an American pawn without the ability to assert its own values.  Worse, if western democracies look the other way at their allies‘ questionable conduct, it would only serve to reinforce the position of those who would like to destroy those democracies.

We may not have the clout to force the US to do anything, but our investigation (which seems to be called for) and eventual dissent (if it is called for after investigation) displays the strength of democracy -- the inability of the state to run ramshod over the individual.


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## enfield (23 Jan 2002)

I thought we had become pawns to America long ago...
There is an air hypocritism here. "Legal Experts" "Canadian MP" - none of these people will EVER have to face the results of their recommendations. If the USMC says they need to do what they do, I‘ll believe it - they‘re professionals doing their job, and they are the ones who must face the consequences - and I‘d rather face a Human Rights Tribunal than 300 fanatical terrorists.

Canada has no right to preach to the Americans. We signed over our Defense a long time ago. They defend us, secure our position, and keep North America and our interets safe. If we want to start telling the Americans how to handle massive numbers of extremely dangerous prisoners, maybe we should start paying our own bills on the world stage. 

Right now we‘re no better than movies critics who have never made a movie telling directors what they did wrong and how bad they were.


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## Yard Ape (23 Jan 2002)

> Originally posted by Enfield:
> [qb]Canada has no right to preach to the Americans. We signed over our Defense a long time ago. They defend us, secure our position, and keep North America and our interets safe. If we want to start telling the Americans how to handle massive numbers of extremely dangerous prisoners, maybe we should start paying our own bills on the world stage. [/qb]


Maybe we should start paying . . . or at the very least stop blaming the US for not providing what we need to do our part.  

I wonder should this discusion make distinction between al-Qaeda and the Taliban?  One is a terrorist group and could arguably be excluded from the rules of war, the other is the former military government of Afghanistan (and did clearly carry arms in the open and engage in operations).

*Al-Qaeda fails Geneva Convention test* 
Jonathan Kay
23 Jan 02
National Post 

Read the Geneva Convention Relative to the Treatment of Prisoners of War and several anachronisms jump out. Article 26 says "The use of tobacco shall be permitted." Article 60 says the detaining power must provide each prisoner ranking below sergeant a monthly pay advance of "eight Swiss francs." Article 74 says prisoners must be offered cut-rate telegrams.

These oddities reflect the context in which the Geneva Convention was adopted. It was 1949, a time when wars were massive conflicts between major powers. The drafters had fresh memories of the Germans‘ treatment of millions of Russian prisoners taken in 1941 and 1942, and the hellish conditions of GIs captured by Japan. It would have been regarded as absurd then to suggest that the treaty would be applied to protect a group such as al-Qaeda, a nihilistic, ununiformed terrorist organization with no concrete territorial ambitions. Article 4 stipulates that "organized resistance movements" are covered by the treaty only insofar as their members brandish their arms openly, wear uniforms and conduct operations "in accordance with the laws and customs of war." Al-Qaeda fails each and every test.

So it is strange to see human rights pressure groups brushing off the United States‘ contention that al-Qaeda suspects held at Guantanamo are "illegal combatants" not covered by the Geneva Convention. In 1942, seven years before the Geneva Convention was adopted, the U.S. Supreme Court declared, in a case involving German saboteurs: "The law of war draws a distinction between ... those who are lawful and unlawful combatants." The latter category was said to include "an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property." He is "generally deemed not to be entitled to the status of prisoner [of] war." And if, as the court found, a German soldier ferried in a U-boat to blow up a U.S. aluminum plant is an illegal combatant, it is hard (not to mention ridiculous) to argue that the same description does not apply to a terrorist cabal striving to rain upon us -- to quote al-Qaeda‘s October boast -- "a storm of airplanes."

So why do the Red Cross, the UN Human Rights Commission and numerous international NGOs insist that the Geneva Convention applies to al-Qaeda? There are two reasons. First, these organizations are dominated by activists who see the expansion of human rights law as inherently beneficial. Second, they have an inborn hostility to what they consider American "hegemony." Nothing makes their leaders madder than when supposedly hegemonistic operations go down beautifully, as did the U.S. mission in Afghanistan. Henpecking Uncle Sam over his treatment of al-Qaeda prisoners is a way to blow off steam, demonize America and humanize its enemies.

This is why Amnesty International lectures us that security on prisoner transport flights from Kandahar to Guantanamo "may violate international standards prohibiting ‘cruel, inhuman or degrading‘ treatment." (I am curious to know how Amnesty squares this complaint with the Geneva Convention, for the U.S. military is merely making sure the passengers do not crash the plane, and Article 20 of the Convention requires captors "take all suitable precautions to ensure [prisoners‘] safety during evacuation.")

It is tempting to see the question of whether the Geneva Convention applies to al-Qaeda as a political sideshow. But it is not. The greatest dividend captured terror suspects might yield is information about future terror attacks. If the UN and the Red Cross have their wish, the U.S. military will not be permitted to get this information: Effective interrogation is verboten under Article 17 of the Convention, which says "Prisoners of war who refuse to answer [questions] may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."

Such a prohibition might be sensible as applied to the sort of rank-and-file military grunts who are actually covered by the Geneva Convention; in a conventional war between sovereign nations, the battle-lines are clear, and most soldiers have little intelligence to offer. But al-Qaeda is different. It is a network of free-ranging, one-man human bombs that threaten to strike all over the world. It is foolish to suggest America should be prevented from sniffing out some of the at-large bombs by interrogating the hundreds it has in captivity.


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## Jungle (23 Jan 2002)

I agree with Enfield... there is a saying I like: "I‘d rather be judged by twelve than carried by six". Says it all. None of these lawyers, judges etc... ever had to make a split second decision that could make the difference between life and death, yours and others around you. It‘s very easy for a JAG officer to brief us about ROE‘s here, they have a textbook answer for every situation... theoretically!!! Now, when we captured pro-indonesian militiamen in East-Timor, we turned them over to the Kiwi Battalion, who turned them over to the Aussie Brigade, and they were finally sent to an INTERFET compound in Dili to await future trial. And you know what ? I never cared how they were treated, and it was not my problem. When they were in my hands, I treated them to the best of my knowledge that the situation permitted, then... out of sight, out of mind.


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## rceme_rat (23 Jan 2002)

Jungle -

there are really two different points here.  The first is what do you do as the soldier on the ground.  I think its pretty clear that you follow the SOPs detailed for the situation.  Those SOPs are not outrageous from your perspective, especially when you consider that they have been reviewed at every level, including legal, before being issued.

The second level, though, is more political and/or academic for those of us here.  It only becomes a pressing concern to those drafting and reviewing the SOPs.  

I think the question posed about the difference between Al-Qaeda and the Taliban is an interesting one.  If the prisoners being held are charged with events prior to the US declaration of war, are they "unlawful combatants" or just common criminals?  Is the Taliban immune as a government, or not, since it was never recognized by the majority of legitimate nations?


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## McG (25 Jan 2002)

> Originally posted by rceme_rat:
> [qb]there are really two different points here.  The first is what do you do as the soldier on the ground.  . . .
> 
> The second level, though, is more political and/or academic for those of us here.  It only becomes a pressing concern to those drafting and reviewing the SOPs.   [/qb]


I think that despite the different perspectives, the answer comes out to be the same.  We cannot deny prisoners the basic rights entitled to them, we must not deny a human the same rights we would demand our soldiers be treated with.  Even in combat, it is not acceptable to shoot enemy soldiers as they surrender (and it frightens me that some of my fellow soldiers seem to be suggesting, here, that they would not think twice before doing it).   

The argument that "they do worse, so we can do this," would be quickly thrown out by even the greenest of kindergarden teachers.  Some people have put forward the conduct of the Axis powers of WW II or the Norht Vietnamese as justification that the other side never treats our side aswell as we treat theres.  I suggest the people making these arguments consider the their contempt the atrocities that they use to justify lowering our morals.  Do they want others to look on us, as we look on the governments and people who were responsible for these events?

For those people who want to refer back to the dangers of combat and making the decision that will keep you alive, take a closer look at what we are talking about!  These are prisoners who have been removed from combat and are a significantly reduced threat.  For those who point to the prison riot as proof that even prisoners are not safe, give yourself\ves a smack.  That situation was poorly orchestrated especially inview of the prisoners being half-heartedly checked for weapons.  Avioding the same mistakes does not require jumping to some extreem.

RCA is ecactly right. I too am reading a lot of crap on this thread, and I hope that at least a few people will give their heads a shake.

That being said, I would not feel guilty about handing PWs to the US.  Two protocols were signed in 1977 to add to the Geneva Convention.  Article 75 (of the first protocol) outlines the rights to be given to a prissoner who does not meet the condition to be recognised as a PW.  I am confident, givne the presecne of Red Cross observers, that the US will meet these requirment of human rights.  I belive that the observation presented by Yard Ape is correct;  Taliban are PWs and Al-Qaeda are not.  I anticipate that this will be brought to light through the court challenge being launched in the US.  Eventually, the US will have to resolve that issue, but untill then, I belive the prisoners will recieve humane (if not comfortable) treatment.


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## rceme_rat (25 Jan 2002)

I would expect you are correct when you suggest that the US will respect these rights (more or less, anyway) under the observation of the International Red Cross.  The question is whether they would have without the outcry by human rights watchers.  To simply trust that the US would is naive or hopeful - actions to date with the prisoners indicate this already.

However, any violations to date are unlikely to undermine the legal proceedings as long as they haven‘t infringed on right to counsel, etc.  Other remedies may be possible to address minor violations -- and some violations may be found to have been unavoidable or reasonable in  the circumstances.  While the US application of the legal principle and ours is different, the effect is basically the same - rights are not absolute. 

More important in the long run is whether the legal proceedings follow with due regard for fundamental legal rights -- as are expressed in the US Constitution, our Charter of Rights and Freedoms, the UN‘s declaration, or just under common law.  

Given the attention the issue has addressed, the importance of presenting the world with a just resolution, and the fundamental imprtance of the issue under the law, I would hope that there really is more smoke than fire with this issue. 

Throughout, my concern has been with the attitudes expressed in certain posts and not with any particular action taken by the US.  I hope that my posts, and those of RCA, McG, and others at least cause people to reflect on their own ethics and responsibility.   

That said, I think that this thread really should be wound down unless some startling new development hits the news.


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## Yard Ape (28 Jan 2002)

*US reviews Cuba prisoners‘ rights* 
Monday, 28 January, 2002, 17:54 GMT 
BBC 

Reports from Washington say a rift has developed in the US administration over the status of al-Qaeda and Taleban suspects held at the American military base in Cuba. 
American newspapers say the US Secretary of State, Colin Powell, is likely to urge colleagues to reconsider the status of the detainees sent to Camp X-Ray at Guantanamo Bay. 

He is arguing that a case-by-case assessment should be made of whether detainees should be declared prisoners of war, the reports say. 

But US Defence Secretary Donald Rumsfeld insists they cannot be treated as POWs because they did not belong to an army, or wear distinguishable uniforms and insignia, but were people engaged in attacks on civilians.

...

US newspapers said the reason for the shift advocated by Mr Powell is that the State Department wants to ensure that any US irregular troops captured would also be covered by the convention. 

The Washington Times quotes a memo from President Bush‘s legal adviser which says that Mr Powell wants Mr Bush to reconsider his 18 January decision to term the prisoners "illegal combatants" - a new term which is unknown in international law. 

"Specifically, he has asked that you conclude that GPW - the Geneva Convention on the Treatment of Prisoners of War - does apply to both al-Qaeda and the Taleban," the memo from White House Counsel Alberto Gonzales is quoted as saying. 

...

The American authorities say the detainees are being treated humanely in spite of international criticism of the camp. 

...


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## cagomez (29 Jan 2002)

IF you check out CBC.ca there is a story that the JTF already handed over prisoners to the US. Egglington didnt give much detail.

 http://www.cbc.ca/cgi-bin/templates/view.cgi?/news/2002/01/29/prisoners_alqaeda020129. 

Not sure how to link so I just copied the address. Hope it works


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## Marauder (30 Jan 2002)

You know what, you guys are right. Screw giving them to the Americans. Lets do everything possible to make sure we kindly and gently apprehend them no matter the cost in our fellow soldiers‘ blood and tears, and then ship them back to Canada. We can "detain" them in some lmin sec uxury bungalow estate "correctional facilitiy" where they can enjoy golfing, sailing, horseback riding, and interpretive dance classes. We can even give them day passes to go roam the countryside to soak up some culture and scenery. (Surely that would disuade the poor misguided fellows from that minor  yet unfortunate  "slaughtering civilians" tendency of theirs into join the winning team over ‘eah, eh gov?) Meanwhile, their cases would have to go into the queue (sp) behind the child porn advocates and pot heads fighting for recreational legalization, dragging the procedings on for a few years, while Clayton Ruby and all the other commie, er sorry, socially consciouable lawyers mugged for the camera and pronouced that all their clients had done was be in the wrong place at the wrong time when those big bad soldiers of indiscriminante sex, race, age, physical ability, and intelligence unlawfully detained them over the minor matter of pointing loaded firearms (not guns, however; ‘guns‘ are evil things the common person couldn‘t be trusted with) and then had several hundred accidental discharges. All a misunderstanding you see. Then predictably, some quisling buffoon Supreme Court jurist looking for a seat in the Senate will suck a little political chub by dismissing the case and burying it so deep no reporter could ever see any govenrment bungling that might be involved. The unlawfully detained persons can then apply for welfare, suck the common taxpaying schmoe dry, and then hop the border to kill a couple American civilians for old times sake. It‘s now a "tradition" and part of their "heritage" , so it‘s okey-dokey that they grease a few innocent imperialist running dogs of The Great Satan.

Hey, we do it with every other cast off from a Third World ****  hole, why not with these misunderstood gentlepersons?

Your quite correct I‘m giving my head a good firm shake, but it is far from the PC, adore thine enemy reasons you want me to.

As far as Somalia teaching me anything: damn right it did. It reminded me that a band of too-powerful politicians and noload toady senior military beauracrats have an infinitely easier time utterly decimating a revered and highly capable combat unit than any collection of drug crazed thugs with a decent armoury filled with AKs and RPGs.


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## Yard Ape (30 Jan 2002)

Marauder, you seem to have the confused opinion that this war is about revenge.  It is not about revenge, it is about ensuring that no similar incidents of terror are ever impossed on the world again.  Tearing punishment out of the hides of men who may or may not have had innvolvment/prior knowledge of the terror attacks will not help this cause.

The issue is not how "kindly and gently" we can apprehend them.  The issue is treating them like humans once we have apprehended them.


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## Yard Ape (5 Feb 2002)

*Ottawa proposes detainee deal* 
Liberals admit limitations of Geneva Conventions: In talks with U.S. about special tribunals to divide terrorists from prisoners of war
Robert Fife, Ottawa Bureau Chief and Sheldon Alberts
National Post,  with files from The Associated Press

OTTAWA - Canada is negotiating with the United States to set up tribunals to determine whether prisoners being held in Afghanistan and Cuba are terrorists or legitimate prisoners of war, John Manley, the Deputy Prime Minister, said yesterday.

The Chrétien government also signalled, for the first time, that Canada believes the Geneva Conventions might be out of date and do not properly cover the treatment of "unlawful combatants" such as the al-Qaeda terrorists who planned the Sept. 11 attacks.

Mr. Manley said that in recent days Canada has held discussions with the Americans to establish a legal process -- either a civilian or military tribunal -- to distinguish whether some of the captured fighters are POWs or terrorists.

Art Eggleton, the Defence Minister, discussed the issue with Donald Rumsfeld, the U.S. Secretary of Defence, last week.

"The fundamental principle is this: Do the Geneva Conventions apply? Everybody agrees on that and that hasn‘t changed," Mr. Manley said.

"Is there a process for determining who is a prisoner of war and who is an unlawful combatant? We need to be satisfied on that. It only really came into doubt in recent days and we are working with the United States to try to make sure that we see eye to eye on it. Does it require a civilian court or even a court martial proceeding [or] does it require some tribunal process that meets the requirements [of the convention]. That‘s what we seek to be satisfied on."

The United States calls the detainees "unlawful combatants" and says there is nothing for a court to consider.

"We are not going to call them prisoners of war," said George W. Bush, the U.S. President. "These are killers, these are terrorists, they know no countries." But, stung by criticism from European governments and human rights groups, he said he would further study the issue.

The United States has faced international protest, including some in Canada from backbench Liberal and Opposition MPs, over its treatment of almost 160 al-Qaeda suspects in custody at Camp X-Ray in Guantanamo Bay, Cuba. Another 300 are being detained in Afghanistan.

Under the plan proposed by Canada, detainees judged to be prisoners of war would be entitled to full protection under the 1949 Geneva Conventions -- a set of rules on the conduct of warfare, designed to protect civilians and wounded or captured fighters.

Under the proposed rules, the detained fighters would be protected from detailed interrogation and be required only to provide basic information to their captors, like their name, rank and serial number.

U.S. officials fear this might prevent them from interrogating the captives to learn about any future terrorist plots.

If any of the prisoners are determined by a tribunal to be terrorists, they would fall outside the legal protections provided to captured uniformed members of armed forces.

...


February 5, 2002

Ottawa proposes detainee deal
Liberals admit limitations of Geneva Conventions: In talks with U.S. about special tribunals to divide terrorists from prisoners of war

Robert Fife, Ottawa Bureau Chief and Sheldon Alberts
National Post, with files from The Associated Press

OTTAWA - Canada is negotiating with the United States to set up tribunals to determine whether prisoners being held in Afghanistan and Cuba are terrorists or legitimate prisoners of war, John Manley, the Deputy Prime Minister, said yesterday.

The Chrétien government also signalled, for the first time, that Canada believes the Geneva Conventions might be out of date and do not properly cover the treatment of "unlawful combatants" such as the al-Qaeda terrorists who planned the Sept. 11 attacks.

Mr. Manley said that in recent days Canada has held discussions with the Americans to establish a legal process -- either a civilian or military tribunal -- to distinguish whether some of the captured fighters are POWs or terrorists.

Art Eggleton, the Defence Minister, discussed the issue with Donald Rumsfeld, the U.S. Secretary of Defence, last week.

"The fundamental principle is this: Do the Geneva Conventions apply? Everybody agrees on that and that hasn‘t changed," Mr. Manley said.

"Is there a process for determining who is a prisoner of war and who is an unlawful combatant? We need to be satisfied on that. It only really came into doubt in recent days and we are working with the United States to try to make sure that we see eye to eye on it. Does it require a civilian court or even a court martial proceeding [or] does it require some tribunal process that meets the requirements [of the convention]. That‘s what we seek to be satisfied on."

The United States calls the detainees "unlawful combatants" and says there is nothing for a court to consider.

"We are not going to call them prisoners of war," said George W. Bush, the U.S. President. "These are killers, these are terrorists, they know no countries." But, stung by criticism from European governments and human rights groups, he said he would further study the issue.

The United States has faced international protest, including some in Canada from backbench Liberal and Opposition MPs, over its treatment of almost 160 al-Qaeda suspects in custody at Camp X-Ray in Guantanamo Bay, Cuba. Another 300 are being detained in Afghanistan.

Under the plan proposed by Canada, detainees judged to be prisoners of war would be entitled to full protection under the 1949 Geneva Conventions -- a set of rules on the conduct of warfare, designed to protect civilians and wounded or captured fighters.

Under the proposed rules, the detained fighters would be protected from detailed interrogation and be required only to provide basic information to their captors, like their name, rank and serial number.

U.S. officials fear this might prevent them from interrogating the captives to learn about any future terrorist plots.

If any of the prisoners are determined by a tribunal to be terrorists, they would fall outside the legal protections provided to captured uniformed members of armed forces.

The International Committee of the Red Cross, a neutral Swiss-run agency, insists the Guantanamo detainees be given POW status at least until a court considers the issue.

The capture of three suspected al-Qaeda fighters by Canadian forces in Afghanistan on Jan. 21 -- and their immediate handover to the American military -- has brought Ottawa under new pressure to intervene with the United States about their treatment.

Canada has accepted U.S. assurances the detainees are being treated humanely.

Meanwhile, Mr. Eggleton and Bill Graham, the Minister of Foreign Affairs, said the 53-year-old Geneva Conventions did not envision the threat posed by modern terrorists, who do not adhere to any conventional rules of warfare and have vowed to continue killing American civilians.

The Geneva Conventions "were written at an earlier time," Mr. Eggleton said. "Not all of them are easily applicable to the conditions that exist today."

Mr. Graham said the Sept. 11 hijackers, for example, would never have been classified as prisoners of war if they had been thwarted in their mission to destroy the Pentagon and World Trade Center towers.

"I think it is fair to say that the Geneva Conventions were not drafted with this type of situation in mind. That is not to say they don‘t apply. But it does mean we have to look at them in a certain light," Mr. Graham said.

"I think there would have to be more clarity as to what is the nature of nonconventional warfare?"


 ...


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## rceme_rat (5 Feb 2002)

> Mr. Graham said the Sept. 11 hijackers, for example, would never have been classified as prisoners of war if they had been thwarted in their mission to destroy the Pentagon and World Trade Center towers.


Right -- they would have been classified as persons accused of criminal acts in the U.S., and would have been afforded the rights available to them under the jurisdiction of their capture - or of the US, if they were extradited.

It is one thing to say that they are not being taken into the US for security concerns.  E.g., it has been suggested that their holding facility could become a target in a release attempt.

It is another matter to keep them out of the US so that US rights don‘t apply to them.  If the US thinks their rights afford these accused persons too much protection, they should recognise their hypocrisy and turn them over to someone else for trial.

In any case, all accused persons are to be afforded certain basic legal rights, and all people - accused or not - are entitled to certain civil rights.  We expect as much for Canadians travelling outside Canada, and we should demand it for others.


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## FredDaHead (5 Feb 2002)

I‘m wondering.... I don‘t have the text of the convention, but doesn‘t it say something to the effect of wearing a uniform/distinctive mark to be a POW? I don‘t remember seeing Taliban/Al Qaeda on TV wearing any kind of uniform. They looked more like civilian clothes, well for me anyway...

Just wondering

-Fred


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## FredDaHead (5 Feb 2002)

Sorry for the double post


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## Yard Ape (7 Feb 2002)

*It takes two to Geneva* 
By WILLIAM JOHNSON
Thursday, February 7, 2002 The Globe and Mail – Page A17  

Are those 180 prisoners held at Guantanamo Bay -- or 300 others still held by U.S. troops in Afghanistan -- entitled to treatment as "prisoners of war" under the Geneva Conventions? And should Canadians serving under U.S. command in Afghanistan take prisoners who will then come under U.S. control?

For some, this poses an existential dilemma worthy of Hamlet. Liberal MP John Godfrey agonized over it: "George Bush has declared the war on terrorism to be the cause of his generation. The cause of Canadian sovereignty will be ours."

The test of sovereignty, for Mr. Godfrey and others, is to challenge the U.S. pretension that prisoners taken in Afghanistan are "unlawful combatants" rather than "prisoners of war." He argues: "Article 4 of the Geneva Convention [Relative to the Treatment of Prisoners of War] has such an extensive and inclusive definition of who qualifies as a prisoner of war that it is difficult to imagine that most of the prisoners thus far taken by the Americans would not be included."

I beg to differ. As I read the convention, it clearly does not protect the prisoners retained by the Americans.

Consider. They hold about 500 prisoners. That small number proves they have no interest in holding former Taliban foot soldiers. They‘re after a worldwide conspiracy of terrorists. They‘re after those who were trained in camps run by al-Qaeda, numbering "tens of thousands," according to U.S. Defence Secretary Donald Rumsfeld. They‘re interested only in Taliban militants who worked with the al-Qaeda leadership, who aided and abetted the network of terrorism.

But the text of the convention makes clear that, under Article 4, it does not protect terrorists, who, by definition, operate clandestinely and attack civilians: "Prisoners of war, in the sense of the present convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: . . .

"2. Members of other militias and members of other volunteer corps . . . provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war."

Neither al-Qaeda nor the Taliban constituted a recognized government; neither constituted an army with a military chain of command, a uniform and arms openly carried. Yet these set the conditions for protection as prisoners of war.

Terrorist networks, including those who support and protect them, do not operate "in accordance with the laws and customs of war," and so cannot claim rights under the Geneva Conventions.

The issue is critical because "prisoners of war" may not be interrogated beyond establishing their "surname, first names and rank, date of birth, and army, regimental, personal or serial number." The U.S. needs to interrogate the detained terrorists and uncover the identities of all who were trained in the terrorist camps and, now disseminated in every country, are apt to set up sleeper terrorist cells.

The stakes are too high for dainty psycho-dramas. The cabinet ministers were wrong to evade and hide. Canada must turn over terrorists for detention and interrogation.


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## Yard Ape (8 Feb 2002)

*Bush willing to give Taliban PoW status* 
globeandmail.com, Thursday, February 7, 2002
Reuters News Agency
BREAKING NEWS

 U.S. President George W. Bush decided on Thursday to apply the Geneva Conventions to Taliban fighters held by the United States but not to al-Qaeda members, a decision that will not change the captives‘ treatment but may help to protect U.S. soldiers and to blunt foreign criticism.

 Mr. Bush‘s decision, criticized by some human rights groups, does not confer prisoner-of-war status on the Taliban detainees, which would have given them protections including the right to disclose only their name, rank and serial number under interrogation and to return home once the conflict is over.

 Announcing Mr. Bush‘s move, White House spokesman Ari Fleischer said that as a practical matter the decision would have little effect on the daily treatment of the captives, 186 of whom are detained at the U.S. military base at Guantanamo Bay, Cuba.

 Despite harsh foreign criticism of their treatment, the spokesman said the United States had treated the captives humanely and would continue to do so, giving them three meals a day, medical care and the opportunity to worship.

 Foreign nations including close U.S. allies like Britain and Germany expressed strong misgivings about the Guantanamo Bay captives after the Pentagon released a photograph showing some of them bound, blindfolded and on their knees.

 Analysts said Mr. Bush‘s decision may have been designed in part to protect the rights of U.S. soldiers who might be captured in the U.S. military campaign in Afghanistan or elsewhere as Washington prosecutes its war on terrorism.

 The Third Geneva Convention of 1949 was designed to protect prisoners of war from inhumane treatment at the hands of their captors in conflicts covered by the treaty, ensuring that they receive such things as proper nutrition and medical care.

 "President Bush today has decided that the Geneva Convention will apply to the Taliban detainees but not to the al-Qaeda international terrorists," Mr. Fleischer told reporters in a hastily arranged appearance in the White House press room.

 "The Taliban detainees are not entitled to PoW status," Mr. Fleischer said, adding there would be "no change" in their treatment, which he said had been consistently humane.

 The White House said al-Qaeda prisoners were not covered by the treaty because the group "is not a state party to the Geneva convention; it is a foreign terrorist group."

 The decision appeared to be a victory for U.S. Secretary of State Colin Powell, who argued that the prisoners should be covered by the conventions despite opposition from others, reportedly including Defense Secretary Donald Rumsfeld.

 The announcement came as a fresh group of al-Qaeda and Taliban prisoners arrived at Guantanamo Bay from Afghanistan on Thursday, two weeks after the U.S. military suspended flights to build more cage-like outdoor cells to hold the captives.

 Some human rights groups criticized Mr. Bush for not extending the convention to al-Qaeda prisoners, saying the treaty was designed to protect all combatants and the White House did not have the right to decide who deserved prisoner of war status.

 "They‘re stating that the Geneva Conventions apply, and in the same breath not applying them," said Alex Arriaga, head of government relations for Amnesty International USA. "It requires a competent tribunal to decide if they are PoWs.

 "It‘s not left to the president of that country or the secretary of defense," she said. "If U.S. soldiers were captured, we wouldn‘t want the president of that country making that determination."

 Prisoner of war status would have given the Taliban detainees a number of rights, including release once the conflict has ended, a monthly stipend, and even access to musical instruments during their detention.

 It would also have allowed them to restrict their answers under interrogation to name, rank and serial number.

 Interrogation has been of particular concern to the United States, which hopes to gain intelligence from the prisoners that may prevent future assaults like the attacks on New York and Washington, which Washington blames on the al-Qaeda group run by accused Sept. 11 mastermind Osama bin Laden.

 Tom Malinowski, Human Rights Watch‘s Washington advocacy director, said the issue had never been the actual treatment of the detainees  saying he believes they have been treated humanely by the United States and would continue to be.

 "The issue is the legal precedent and the extent to which the U.S. fully embraces the Geneva Convention," he said. "What they have done is partially embrace them which is not going to fully satisfy anyone. To the extent they had a problem on this issue yesterday, they still have a problem today."

 Mr. Fleischer said for the captives to qualify as prisoners of war under the convention they would have to meet four conditions: be part of a military hierarchy, wear uniforms or other visible insignia, carry arms openly and conduct military operations in accordance with the "laws and customs" of war.

 "The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan," Mr. Fleischer said.


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## Infanteer (8 Feb 2002)

Good, We can kill this thread now.....


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## Spr Earl (10 Feb 2002)

Infanteer I agree , but alway‘s remember as a member of the Force‘s you are subject to Federal Law ,Military Law ,Geneva Convention and the U.N.Charter of Human Right‘s and if you controvene any of these you are up the creek and may be labeled a War Crimanal.


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## King (12 Feb 2002)

One question, can someone tell me how the actual treatment of these prisoners will or has changed? It‘s not like they were being tortured to begin with.


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## Yard Ape (20 Feb 2002)

*Suspects take case to U.S. court* 
_Two Britons, Australian demand rights equal to those given American prisoner_ 
Associated Press   
Wednesday, February 20, 2002 
Globe & Mail - Page A15 

WASHINGTON -- Foreign nationals captured in Afghanistan and held in Cuba filed suit against the U.S. administration and military yesterday, saying they are entitled to the same legal rights as Taliban member John Walker Lindh, a U.S. citizen.

In contrast to Mr. Lindh, who has a lawyer, has been charged and is being tried in federal court, Britons Shafiq Rasul and Asif Iqbal and Australian David Hicks are being unlawfully held incommunicado, lawyers for their families said.

"We are asking that British citizens be treated with as much respect as Americans," said Clive Stafford Smith, a lawyer for Mr. Rasul‘s and Mr. Iqbal‘s families.

The suit "tests the power of the federal government and the President of the United States to hold whomever he chooses simply because he does not like them," added William Goodman, director of the Center for Constitutional Rights, which co-signed the petition in U.S. District Court.

A spokesman for the U.S. Attorney‘s office in Washington said it is unclear how long it will take the court to issue a ruling.

...  Continued


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## herbie (20 Feb 2002)

just a thought hope i‘m not repeating some one else

If you call terrorists prisoners of war than you justify terrorist acts as legtimate acts of war.  Which as we all know that aren‘t.  Its that easy.

nuff said


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## Sapper Bloggins (5 Mar 2002)

i COULDN‘T AGREE MORE W/ hERBIE. tHEY ARE TO BE TREATED ACCORDINGLY--- AS TERRORISTS. tAKE AWAY ALL THEIR NICETIES, BEING A PRISONER WASN‘T MEANT TO BE HOSPITABLE.


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## Infanteer (5 Mar 2002)

AAAHHH.....
DIE, THREAD, DIE........


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## Sapper Bloggins (6 Mar 2002)

beating a dead horse here lads...


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