Hello every body,
I am trying to catch up and as some know it where I am when it rains...
Mike, I read your comments on the art2 and 3 and your questions.
I come with some comments and begining of response to your questions.
If US have the liberty to recognize or not a government, US do not have the liberty to determine who is a High Contracting Party, it is Swiss as depositary of the signature, ratification and adhesions. (from my understanding).
The paradox is even expressed in your comments: Afghanistan never lost his status of High Contracting Party, while US did not recognize the Rabbani government, even before 2001.
Art 1, 2 and 3 are common to all the GC just as the final dispositions of all the GC. For GC3 it is art 133 to 143.
US ratified the GC3 with the only reserve that they will not recognize the use of the symbol of the red cross and the death penalty.
US had the obligation to provide written notification to Swiss Government of reserve on contracting party to denounce the GC. In that case, only US would had been no more bound to the obligation to apply the GC but also would not have been protected by GC. US did provide written notification concerning the recognition of South Viet Nam (18/01/1974) but not concerning Afghanistan.
Also, denouncing the GC takes 1 year and does not apply for parties at war or conducting military operation in the territory of another party. So even if a written reserve was given in time to Swiss government it would not had apply. (Art 142 GC3)
I understand the fact that US does not recognize any higher legal authority than its constitution would be the same with France with the addition of the universal declaration of Man Rights.
But still, the question is that Afghanistan what ever was its government was still a High Contracting Party and that the conflict occurred between two High Contracting Parties so the paragraph 1 of the Art 2 should had apply.
The quality of international conflict is not stated in the Art 2 paragraphe 1 it is induced by the fact that High Contracting Parties are government representing Nations. So an orthodox understanding and application of GC could be that 2001 operations in Afghanistan were actually falling under art2 paragraph 1.
There US have applied their understanding of recognized government and derogated to its obligations concerning an application stricto sensus of the GC. Also the US did pass an administrative act that would not have been possible in France. (People have rights, you have to preserve that).
This, in my understanding of US Law is possible only because of the status of the constitution that would stipulate the obligation of government administration to protect US citizen. (Which is ok for me)
What I have difficulties to figure out is the consequences of the precedent for any other treaty between let say US and France the day US does not recognize French government as a legitimate government.
Also, there is no designated body given for the settlement of such precedent in GC interpretation.
We have here a juridical question on the difference between High Contracting Party to the GC status and the recognition of a Government. I cannot answer that question and I believe that the answer can be given only by the permanent court of La Haye. Or would be left to each signatory appreciation but it is against the spirit of the GC. (Which does not count but is the way things have been handled).
For France, it would be against the 1789 Universal Declaration of Man Rights. The position is simple: human being have rights. The only question is what legal status has the concerned individual and then which rights goes with.
The Conseil Constitutionel would definitively size the question. By definition, in French Law, the individual must have rights, their rights cannot be denied. We have the same problem with criminals that are considered as danger for the society and have a law saying they will stay, after serving their sentence under medical detention. This law is highly controversial and is we by many as a breach in the legitimacy of Law. Once you serve your sentence you have to be released (that is my position) despite the fact you are a danger for the society. You cannot detain someone on the base he may be a danger. If you really want to put someone out of the system, you can sentence him for life (35 years in France) without possibility of revision of the sentence. (So he will serve 25 years). After you can put him under strict control with a possibility to serve another life sentence. Otherwise the charactere of justice (the second chance) is abandoned by the Law.
Secondly, the Art 1 is even larger as all High Contracting Parties, including US or France or Germany, have the obligation to apply GC3 (or 1,2, 4) in all circumstances. In my understanding that would mean that even if aliens from Mars were at war with France, France would be bound to apply the present GC. There is no definition of the opponent or the conflict status involved.
I would take this article to legitimate that anyway what ever are the circumstances, France is bound to apply the GC3. Here also my job is easier as France put the 1789 declaration of Man Rights at the same level as her constitution. My only question is in which box do I put the bonhomme.
But what ever, Art 3 fully applied to the situation and applies to the actual situation.
Now it is interesting to look at Afghanistan reserves and comments on GC.
PS: Concerning the Rawls theory, I am in position to discuss it only after several scotch very late at night, definitively not during the day. It is out of the subject and too high for me.
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