Crimes, War Crimes and the War on Terror

[marct]

Hi Schmedlap,

Forgive me if this is an exceedingly dumb question, but I am a pretty unsophisticated observer of legal whatnot, especially the international variety (but I think that my input is useful because I tend to have the same confusion over this issue that most average schmoes do). So long as the "war on terror" continues, why is it not permissible to simply keep these folks locked up? Isn't standard practice to keep POW's in detention until hostilies cease?

On the surface, it makes sense. The unfortunate thing is that "terror" is not a nation state. How can that "war" end? Will the President for Life of "Terror" sign a peace treaty ? Sorry, the sarcasm is coming from being incredibly frustrated with the confusion caused by assuming rhetoric as reality - it's certainly not with you or your question!!!

The GCs assume a state on state conflict, so keeping someone as a POW makes sense, and they can be returned after the end of hostilities. I do think that the Taliban should be counted as a "government" (government in exile). For them, and their fighters, this would mean that the "war" would end IFF (if and only if) they are brought back into negotiations with the Afghan government and some accommodation is reached. AQ and the other irhabi groups are another matter...

It also seems to me that, rather than haggling over the current interpretations of international law, we should be pushing for revisions. In the past, we coerced a nation into submission and then their military hierarchy diseminated the order to cease hostilities. That cannot occur now, as al-Qaeda and similar organizations do not function this way, so it seems that we need to update our laws in order for them to be workable.

I definitely agree that we need to change international law and the GCs to account for the current reality. We have to be able to account for para-state groups such as Hamas, Hezbollah, etc. as well as groups of the irhabi-network types. It might be an idea to go back to examine the situation in the Holy Roman Empire just after the Treaty of Westphalia and use that as an example for further consideration. After all, you had a really odd situation where "states" were members of another "state" (the HRE).

Understood, but there are a fair number of people who think that they should be tried in our court systems, as if they were normal defendants in a criminal case. That was my reason for emphasizing their non-US status.

Hmmm, I think the problem is with the precedent being established. For example, there is a general agreement that citizens of one country may be tried by the legal system of another country for crimes committed in their jurisdiction and will enjoy all the legal protections of the country in which they are tried. There is also precedent for trying your citizens for actions in another country that contravene the laws of your country. But there really isn't much of a legal precedent for holding citizens of one country with whom you are not at war without trial.

Khadr, and I'm sticking with him right now, is a Canadian citizen and his continued incarceration in Gitmo is being viewed by some as a breach of treaties with Canada. Think about it for a second.. If we captured a US citizen in Afghanistan fighting as a Taliban and held him in Canada without trial, what would the US reaction be?