Protecting your Legal Self

[Matthew]

Hello,
I heard an International Law expert speaking on CBC recently regarding the issue of turning over prisoners to another country's military/police.  She brought up the Nurenburg trials, where some who claimed just to be "following orders" were not left off the hook for their war crimes.  Relevant to those in Afganistan, the owness is on the soldier who hands over the prisoner to ensure that the party they are handing them over to will not commit war crimes (torture), and will not pass that prisoner on to another country that might commit war crimes (torture) on that prisoner. In other words, it would be really important to get either a written note signed by a CO, or failing that, at least a recording (using your mp3 player voice record feature) of a CO saying these prisoners are being handed over to a country that will not torture them, and neither will turn them over to another country that might torture them.  No one wants to spend their retirement being prosecuted and jailed by an International War Crimes Tribunal at the Hague, so protect yourself.
Peace,
Matthew

 

[Brad Sallows]

I have a bit of a beef with the "experts" and the "concerned citizens".  Sometimes it helps to actually read the articles.  For example, here is Article 12 of the GC for PoW:

"Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.

Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.

Nevertheless if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with."

That's very clear.  If there haven't been any subsequent refinements of international law that have altered the applicability of that article - and I can't state categorically that no such changes have been made* - then all the attempts to apply pressure to soldiers as individuals regarding their liability should cease.  It's an underhanded ploy to intimidate soldiers into taking responsibility for something that states and their governments (including their enfranchised citizens) haven't been able to sort out.  If someone has a problem with the treatment of detainees, he should focus his remarks to our government, not to our soldiers.

But if the "law" isn't enough, here's another reason.  There are three things a soldier can do to an enemy combatant who wishes to become a PW: kill him, detain him, or release him to fight again.  That the third course of action should be taken is absurd.  If we don't have any detention facilities, the second course of action is not open.  So I suppose firefights might go on a little longer, and missions not conducted with a purpose of capturing prisoners may result in higher numbers of enemy dead.  Those deaths will be the indirect result of browbeating soldiers into reluctance to take prisoners and failing to pressure our government to provide (fund, construct, staff, and maintain) PW camps if we are so worried about what might happen to detainees in the hands of others.  I haven't much respect for people who won't accept the unintended consequences of their meddling and their good intentions.

*And if there have been changes, I haven't much respect for the governments which decided to pass the buck by enacting such changes.

 

[Franko]

Another "barrack room" lawyer    :

Mathew....it seems you are yet again straying out of your lane. 2 posts, well done you.

Do some research on your topic prior to posting if you want an intelligent, coherent reponse.

Many of the serving members here on this site know the GC inside and out...your post has been an example of BS the media at times likes to push on the masses.

Thanks for your concerns about us having to C.Y.A.

Regards

 

[Forgotten_Hero]

the owness is on the soldier who hands over the prisoner to ensure that the party they are handing them over to will not commit war crimes (torture)

Untrue. The soldier handing over the prisoner has no problem with the law unless he hands over the prisoner knowing and intending that the party will torture them, I think.

and will not pass that prisoner on to another country that might commit war crimes (torture) on that prisoner.

Any country can commit war crimes.

 

[Fishbone Jones]

Matthew,

The word is 'onus' not 'oweness'. As in - ' The ONUS is on you to get your facts straight, before you open your mouth, and prove yourself an idiot'. You'd think someone that's written as many technical papers as you and was employed by the CBC as long as you would know that from experience.

 

[Franko]

Matthew,

The word is 'onus' not 'oweness'. As in - ' The ONUS is on you to get your facts straight, before you open your mouth, and prove yourself an idiot'. You'd think someone that's written as many technical papers as you and was employed by the CBC as long as you would know that from experience.

 

[Matthew]

Untrue. The soldier handing over the prisoner has no problem with the law unless he hands over the prisoner knowing and intending that the party will torture them, I think.

Any country can commit war crimes.

Well, what this International Legal expert said was that International Law is case based. It does not matter whether there is a Geneva Convention saying that the soldier is not responsible when handing over a prisoner.  By precedence, the soldier is responsible for his/her actions.  If they hand that prisoner over to a country that is known to torture it's prisoners, or that the prisoner is likely to thereafter to be handed over to a country that tortures it's prisoners, then the soldier handing over the prisoner could very well be liable.  It does not matter whether they 'intend' that the prisoner be tortured or not.
Peace,
Matthew

 

[couchcommander]

There is a signed agreement between the Governments of Canada and Afghanistan regarding the transfer of detainee's availible http://www.forces.gc.ca/site/operations/archer/agreement_e.asp which clearly states:

"The Participants will treat detainees in accordance with the standards set out in the Third Geneva Convention" - unless the officer effecting the transfer had reasonable grounds to assume that this agreement was in fact not being followed I'd have a hard time envisioning a situation where the officer could be charged with something.

I'm no expert, but on this one i don't really think you need to be to figure it out.

 

[Matthew]

There is a signed agreement between the Governments of Canada and Afghanistan regarding the transfer of detainee's availible http://www.forces.gc.ca/site/operations/archer/agreement_e.asp which clearly states:

"The Participants will treat detainees in accordance with the standards set out in the Third Geneva Convention" - unless the officer effecting the transfer had reasonable grounds to assume that this agreement was in fact not being followed I'd have a hard time envisioning a situation where the officer could be charged with something.

I'm no expert, but on this one i don't really think you need to be to figure it out.

Assuming that in fact the Afganistan government has turned a 180 and stopped torturing prisoners, then there is still liability since it is common knowledge that most prisoners handed over to the Afganistan forces will in turn be turned over to US forces.  WIth Guantanamo Bay the Americans have tarnished their reputation by torturing prisoners there. It is well documented.  All it takes is one prisoner turned over that has access to a good lawyer, and our Canadian forces soldier could find his/her self in a legally liable situation, or so the expert on CBC claimed.
Peace,
Matthew

 

[Forgotten_Hero]

Well, what this International Legal expert said was that International Law is case based.

Then why are you here generalising and telling us that it is always the way you claim?

By precedence, the soldier is responsible for his/her actions.

The soldier's actions dont include torturing the prisoner.

If they hand that prisoner over to a country that is known to torture it's prisoners, or that the prisoner is likely to thereafter to be handed over to a country that tortures it's prisoners, then the soldier handing over the prisoner could very well be liable.  It does not matter whether they 'intend' that the prisoner be tortured or not.

If the soldier hands the prisoner to another country bound by the GC, unless he knows outright that the prisoner will be tortured, theres no way of blaming him at all.

 

[Fishbone Jones]

Assuming that in fact the Afganistan government has turned a 180 and stopped torturing prisoners, then there is still liability since it is common knowledge that most prisoners handed over to the Afganistan forces will in turn be turned over to US forces.  WIth Guantanamo Bay the Americans have tarnished their reputation by torturing prisoners there. It is well documented.  All it takes is one prisoner turned over that has access to a good lawyer, and our Canadian forces soldier could find his/her self in a legally liable situation, or so the expert on CBC claimed.
Peace,
Matthew

Not proven if fact. Only in the wild fantasies of the left wing loonies.

 

[McG]

it is common knowledge that most prisoners handed over to the Afganistan forces will in turn be turned over to US forces. 

That is not common knowledge.  It is not even true.

 

[the 48th regulator]

Mathew,

You are quite amusing,  tell the story again about the spec ops guy and your interogation.  That made me sit up and giggle....

diileas

tess

 

[Matthew]

Then why are you here generalising and telling us that it is always the way you claim?

The soldier's actions dont include torturing the prisoner.

If the soldier hands the prisoner to another country bound by the GC, unless he knows outright that the prisoner will be tortured, theres no way of blaming him at all.

Many countries claim they adhere to the Geneva Conventions, but NGO watching those countries report that they routinely torture their prisoners, among other human rights abuses.  'The reasonable man' would know that prisoners handed over to Afganistan forces would be handed over to the Americans, and that the Americans are outinely torturing prisoners in Guantanamo Bay, and other hidden prisons around the world.
Peace,
Matthew

 

[Matthew]

Mathew,

You are quite amusing,  tell the story again about the spec ops guy and your interogation.  That made me sit up and giggle....

diileas

tess

Well Tess, the entire thread was deleted by the moderator. So there is not point in my posting it again now is there?

 

[George Wallace]

Assuming that in fact the Afganistan government has turned a 180 and stopped torturing prisoners, then there is still liability since it is common knowledge that most prisoners handed over to the Afganistan forces will in turn be turned over to US forces. 

Really.  And where are these prisoners in American custody?  Surely the Island of Cuba could not hold them all, as you are alluding to.

WIth Guantanamo Bay the Americans have tarnished their reputation by torturing prisoners there. It is well documented. 

Well documented, or just well speculated by Conspiracy Theorists?  I don't think you have any idea of what is going on in Guantanamo Bay, and are listening to too many illinformed, actually uninformed, people.

All it takes is one prisoner turned over that has access to a good lawyer, and our Canadian forces soldier could find his/her self in a legally liable situation, or so the expert on CBC claimed.

And of course these prisoners are all going to be outstanding citizens who would never have an agenda to smear their jailers and the West.  Just you unbiased honest victims who never touched a weapon in anger as a Religious Fundamentalist/Fanatic.  Totally innocent of any wrong doing, who hold no malice to anyone.  

 

[paracowboy]

and that the Americans are outinely torturing prisoners in Guantanamo Bay, and other hidden prisons around the world.

oddly, the Red Cross, which has unrestricted access to Guantanamo, disagrees. Having spoken with a woman who has been in there on inspections, I'd say you need to stop cheaping out on the tinfoil. Go for the heavy ply stuff.

 

[Forgotten_Hero]

WIth Guantanamo Bay the Americans have tarnished their reputation by torturing prisoners there. It is well documented.

With all the cases of torture (sleep deprivation and sensory deprivation, as commonly pointed out by these bleedin hearts) in Guantanamo Bay, I'd have expected the US government, as well as any government of the world, to be accused of torturing their soldiers similarly in any standard FTX...

This "torture" in G'Bay has actually not been well documented, and seeing as the US government does not condone torture (at least, publicly), all that money wasted on suing the Canadian troops responsible for the transfer (as if they'd ever be found) would not be won back.

the Americans are outinely torturing prisoners in Guantanamo Bay, and other hidden prisons around the world.

How do you know what happens in hidden prisons?

 

[a_majoor]

Much of this topic is moot anyway. The Geneva convention applies to enemy soldiers,

Combatants have protections under the Geneva Conventions, as well as obligations.

Convention I offers protections to wounded combatants, who are defined as members of the armed forces of a party to an international conflict, members of militias or volunteer corps including members of organized resistance movements as long as they have a well-defined chain of command, are clearly distinguishable from the civilian population, carry their arms openly, and obey the laws of war. (Convention I, Art. 13, Sec. 1 and Sec. 2)

See wounded combatants for a list of protections.

Convention II extends these same protections to those who have been shipwrecked (Convention II, Art. 13)

Convention III offers a wide range of protections to combatants who have become prisoners of war. (Convention III, Art. 4)

For example, captured combatants cannot be punished for acts of war except in the cases where the enemy’s own soldiers would also be punished, and to the same extent. (Convention III, Art. 87)

See prisoner of war for a list of additional protections.

However, other individuals, including civilians, who commit hostile acts and are captured do not have these protections. For example, civilians in an occupied territory are subject to the existing penal laws. (Convention IV, Art. 64)

The 1977 Protocols extend the definition of combatant to include any fighters who carry arms openly during preparation for an attack and during the attack itself, (Protocol I, Art. 44, Sec. 3) but these Protocols aren’t as widely accepted as the four 1949 conventions.

In addition to rights, combatants also have obligations under the Geneva Conventions.

In the case of an internal conflict, combatants must show humane treatment to civilians and enemies who have been wounded or who have surrendered. Murder, hostage-taking and extrajudicial executions are all forbidden. (Convention I, Art. 3)

In several specific instances noted above, terrorists and groups like the Taliban fail to qualify as soldiers. We may choose to keep them as prisoners, or, since they have committed crimes against the legally constituted government of the state they are captured in or originated from, there are several options including deporting captured terrorists and other illegal combatants to their point of origin or the nation they committed a crime in.

I would suggest NOT delivering a captured terrorist or illegal combattent to where they can be tried for their crimes is a miscarriage of justice on our part, and the sooner these people are handed over, the better.

 

[Scott]

Maybe I'm just cranky, maybe I'm just sick of conspiracy theorists or maybe I am going to enforce the guidelines here.

Matthew,

Provide proof for your claims or STFU.

Do neither and you'll be introduced to the Warning System.

How's that for torture?