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Old 09-30-2008   #1
jmm99
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Default Defending Hamdan

Defending Hamdan - Comments - part 1

The Complex Terrain Laboratory completed last week a five-part article by Brian Glyn Williams, "Defending Hamdan". Williams was an expert witness for Hamdan's defense team. The article has some controversial points (IMO).

The links to the five-part article are here:

Quote:
HAMDAN SYMPOSIUM
DEFENDING BIN LADEN'S DRIVER
Brian Glyn Williams' account of his experience as an expert witness in the Guantanamo Bay trial of Salim Hamdan, "bin Laden's driver", in five instalments.
Part I: Bin Laden's Driver
Part II: On Ruffling Establishment Feathers
Part III: Letter and Spirit of the Law
Part: IV: Digging Deeper for the Defense
Part V: Trial and Verdict
Full Text (Parts I-V)
http://www.terraplexic.org/review/

I owe this one to Selil, who advised me of it last week.

---------------------------------------------
As I started writing this part yesterday (12:00 29 Sep), five comments were up at terraplexic review (url above). Here are snips from their leads, which suggest some topics for discussion here:

Quote:
Combatant Status of the Ansars
.....
For my part, I want to focus on the distinction between lawful and unlawful combatancy, which was at the core of Hamdan’s defence strategy.
Quote:
The Flexibility of the Military Commissions
....
The military commissions now operating at Guantanamo Bay are more flexible than the federal civilian courts established pursuant to Article III of the Constitution.
Quote:
A Minute Focus on Uniforms
........
It has been fascinating reading Brian William's brief account of this trial. I am writing from Cairo where I'm in the middle of a quick stint of anthropological fieldwork, and as I hoof about this hot and smoggy but cheerful city chatting with people, I'm reminded daily of the truth of what Brian writes about when he says that one of the major issues at stake in trials that test the legality of Guantanamo is the international image of the U.S.
Quote:
Lipstick on a Pig?
.......
I also agree that it provides some indication that at least the US officer corps can maintain a level of impartiality despite the interest of the civilians in the Defense Department for manipulating the process. The verdict has caused me to wonder even more about the views of the officer corps regarding Iraq, the War on Terror, and the longer term implications these views will have for military morale.
Quote:
Out Here On The Perimeter
.....
The outgoing U.S. administration has not had a smooth ride in 2008. In June, the Boumediene v. Bush decision restored the constitutional right of habeas corpus to detainees at Guantanamo Bay . It also challenged the constitutionality of the Military Commissions Act (2006), the first example of which – the trial of Salim Ahmed Hamdan – ended with only partial victory for the administration. It also called into question both the status of the commissions and of 'unlawful combatants'.
------------------------------------------------
There are many more points in the article (and the above links) that can be addressed pro & con.

Any takers ?
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Old 09-30-2008   #2
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Default Defending Hamdan - part 2

The "Out Here On The Perimeter" comment (url in part 1) points to some more links, which are worth reading for their own opinions:

The thrust of the Corn article (below) is the need to articulate a clear standard for what is a "war" - since, without a "war", how can we speak of "war crimes" ?

Quote:
The Hamdan Trial: Can Three 'Rights' Correct a 'Wrong'?
JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.), a former Special Assistant to the Judge Advocate General for Law of War Matters and currently a professor at South Texas College of Law, says that Salim Hamdan's recent military commission trial - in which he was called as an expert witness for the defense - should remind us that true legitimacy for the US military commissions has never been and will never be defined by the role of the military in the commission process, but instead by the process that civilian leaders create for that role...
http://www.terraplexic.org/review/20...perimeter.html

The thrust of Marty Lederman's comment (below) (I think I referenced it somewhere in "War Crimes") is similar to Corn's - "what is a war"; as well as whether the Ex Post Facto Law Clause applies. He raises this point, which should be of interest to all serving military officers - especially those in special ops - and to those in the CIA who are responsible for paramilitary activities:

Quote:
.... But what's the theory under which it [delivery of weapons in a war zone] is a war crime? The government's argument is that any attempt, like this one, to aid in the killing of U.S. forces on a battlefield is a violation of the laws of armed conflict if it is committed by an unprivileged combatant, i.e., a nonuniformed person.

This is a fairly radical theory -- that any belligerency by nonprivileged persons is itself a war crime. If I'm not mistaken, it would mean that CIA officials and many U.S. Special Forces are not only regularly violating the domestic laws of the nations where they operate, but are committing war crimes. Can that be right? .....
http://balkin.blogspot.com/2008/08/w...ch-hamdan.html

Marty Lederman's post (like "Out There") also refers to this post by Heller, which is a good example of "special pleading" (IMO). It generated 27 comments - some worth reading.

Quote:
Why Hamdan’s Material Support Convictions Violate the Ex Post Facto Clause
by Kevin Jon Heller
As Marty points out in his post, whether convicting Hamdan of “material support for terrorism” (MST) violates the Ex Post Facto Clause will be a major issue in Hamdan’s appeal. Having now read Judge Allred’s decision carefully, I strongly disagree with his conclusion that it does not. ....
http://opiniojuris.org/2008/08/07/wh...-facto-clause/

This is a very short (non-legal comment) by Patrick Lang, with this little message to all you colonels and prospective colonels out there:

Quote:
Hamdan will be released before the end of the year [JMM: we shall see]. The six officers have all had soldier or sailor drivers. They decided that they knew what the role of a driver is, and that this role did not justify further confinement for Hamdan. ...
....
The prosecution sought to use this military commission to communicate a message to the world. This message was to be that any association with any group the United States chooses to call "terrorist" will lead, at the least, to a long, long prison sentence.

The prosecution's, and presumably the Bush Administration's, desire to send that message was thwarted by six officers who preferred justice. Colonels can be unpredictable people.
http://turcopolier.typepad.com/sic_s...n-will-go.html

Andy Worthington has written many, many articles on GWOT, OEF and OIF - all of a very critical bias - so, there were no surprises here - it does provide a decent picture of what happened at the trial (AW's opinions aside, IMO):

Quote:
A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict ....
http://www.andyworthington.co.uk/200...bious-verdict/

Also in the critical catagory is this from Dave Glazier at National Security Advisors ("A national security law blog"), which sets out the issues and does not "brief" them:

Quote:
The Hamdan Verdict - A Government Stroke of Fortune?

The verdict returned by the trial panel (no one should ever mistake a group hand selected by the authority responsible for the decision to prosecute as a "jury') in Guantanamo today reflects extremely well on the six officers given the unenviable task of participating in a badly flawed system. The government is already proclaiming the outcome as vindication of the commission process. The ironic reality is that the partial verdict - conviction on five specifications of providing material support to terrorism but acquittal on the charge of conspiracy and three other specifications of providing material support - is actually a much better outcome for the prosecution than a more complete conviction would have been. By limiting the grounds on which the defense can appeal, the verdict as returned largely saves the government from its own egregious overreaching.
http://natseclaw.typepad.com/natsecl...mdan-verd.html

Glazer also (as does Marty Lederman above) comments on this:

Quote:
The judge's instructions to the trial panel, which failed to state that delivering missiles to be used against military forces constitutes a war crime also ultimately works to government advantage in my view. If the government had prevailed on this point, it means that everyone from Ronald Reagan to Charlie Wilson, to my colleagues at the Pentagon during my service in the South East Asia branch of the Joint Chiefs of Staff in 1984-85, to the CIA folks involved in supporting the Mujahidin in Afghanistan during the Soviet Afghan war are war criminals. While U.S. prosecutions for such conduct are obviously unlikely, such an outcome could have consequences from emboldening nations like Russia to press charges to the more mundane but perhaps real possibility that they might persuade some U.S. judges to overturn the conviction to avoid attaching this stigma to fellow Americans.
Of course, saying that something is so doesn't make it so, since one can find exceptions to every rule.

The question is what are the rules ? We all can probably agree that modern warfare - especially in its paramilitary aspects - has raced far ahead of the neat, little boxes contemplated by the GC, etc. They have about as much direct relevance today to unconventional warfare, as the neat, little boxes at Waterloo have today to conventional warfare.
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Old 09-30-2008   #3
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I think the perspective Williams brings is very interesting. Less vitriol and more analysis than the press has provided. Of course, he was there and was a witness. I think the near lack of prosecutorial vigor in the case towards Williams is interesting. With cases like Frye, Daubert, Kumho hanging out there simplistic challenges to his assertions as an expert could have been made but weren't. I'm no attorney or an expert in military affairs but I have sat through hundreds of court cases and I did not even perceive some of the normal courtroom wrangling yet the prosecution puts up a host of counters. I guess that puts me in the position of being much of what I sound like. Confused. That is not a good situation when looking at any court proceeding.
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Old 09-30-2008   #4
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Default Defending Hamdan - part 3

Two more comments have been posted at terraplexic. One is very succinct, by Tony Waters,

Quote:
Trials as Ritual Mechanisms
Tony Waters
Trials themselves are ritual mechanisms through which governments demonstrate the legitimacy of their power (what Max Weber called the “monopoly of the legitimate use of physical force in a given territory”). The advantage of jury trials, including that of Hamdan, is - as de Tocqueville wrote - that they tell everyone who's in charge, since "He who punishes the criminal is therefore the real master of society." In a slow but imperfect fashion, the Hamdan trial may be signaling that the executive branch of government is no longer the unquestionable master of society, at least when it comes to the War on Terror. Independent judicial review may be returning.
I don't think it (independent judicial review) ever really disappeared, but it certainly is now rearing its head (which, IMO, seems a good thing). Of the three branches, the Federal judiciary is the weakest branch. It is dependent on Congress for financing and organization of its courts. It is dependent on the Executive for enforcement of its decisions ("John Marshall has made his decision. Now, let him enforce it."). Its primary power is the credibility of its decisions.

The second comment is by one Marc Tyrell (Le Canada ...),

Quote:
....As I read it, I found myself having several reactions which made me want to examine some of the presuppositions behind the entire military tribunal system and, especially, as it applies to those being held in Guantanamo Bay. ...
....
My first question, then, would be “when does a non-state actor become a state”? Or, to phrase it subtly differently, when does world opinion hold that the use of violence by a specific, identifiable group, shift to the point that the rules applied to its use of violence are those of “international relations” (e.g. “lawful combatants”) rather than those of a single, sovereign, legal system (e.g. “unlawful combatants”)? ...
...
.... my second question: why should any group accept the state-based conceptualization of international relations?

This question is especially important when one considers that the post-Westphalian concept of a “society of states” is based on a radically different religious, historical and cultural view of “reality” from that of much of the world today. And, possibly more importantly, when the force a transnational non-state actor can now apply is much greater than at any other time in our species history thanks to the growth of global integration in economics and communications and the increased development of diaspora communities? ...
....
My question is this: what possible interpretation of international law allows the military of one sovereign nation to detain the citizens of another sovereign nation and charge them under a national, as opposed to an international, legal system?
Both posted at

http://www.terraplexic.org/review/
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Old 09-30-2008   #5
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Default Jurisdiction to legislate - Jurisdiction to detain

from Marc Tyrell in his comment at terraplexic

Quote:
My question is this: what possible interpretation of international law allows the military of one sovereign nation to detain the citizens of another sovereign nation and charge them under a national, as opposed to an international, legal system?
First of all, this is two questions in one, which can be separated as follows:

1. What possible interpretation of international law allows one sovereign nation to charge the citizens of another sovereign nation under a national, as opposed to an international, legal system?

2. What possible interpretation of international law allows one sovereign nation to detain the citizens of another sovereign nation under a national, as opposed to an international, legal system?

Many "interpretations" allow the results. Here is a brief explanation.

-------------------------------------------
The first question hunges on jurisdiction to prescribe (legislate). The simplest case is territorial jurisdiction. I go to Canada and murder someone. Canada can legislate that anyone who murders someone while both parties are within its territory can be charged and tried in a Canadian court. Assuming I haven't fled Canada, Canada can also detain me under its territorial jurisdiction.

Marc's question goes beyond this simple case to the more complex issue of extraterritorial jurisdiction; that is where the crime involves acts or omissions outside of the nation's territory, and the criminal is located outside the nation's territory. BTW: a nation's territory is geographic; but may extend outside of its geographic territory to such things as ships, planes, space craft, diplomatic enclaves ("constructive territorial jurisdiction", "extended territorial jurisdiction", "quasi territorial jurisdiction", etc.). Assume that is not involved (let us not get into Gitmo and US foreign bases, right now).

Four bases in international law exist as justifications for exercise of extraterritorial jurisdiction to prescribe (legislate).

1. Effects-based jurisdiction. I stand in Michigan and shoot someone in Canada. Canada can legislate that as a Canadian domestic crime.

2. Protective jurisdiction. Similar to effects-based jurisdiction, this basis allows a state to criminalize conduct directed at the state from outside of the state. I sit in Michigan at my computer and direct a conspiracy to overthrow Canada's government. Canada can legislate that as a Canadian domestic crime.

3. Passive-personality jurisdiction. "Passive personality is also known as passive nationality because it refers to the nationality of the victim, while active nationality refers to the nationality of the perpetrator." I murder a Canadian national anywhere in the world because I don't like Canadians. Canada can legislate that as a Canadian domestic crime - Mexico, in fact, has done just that.

4. Universal jurisdiction. I commit a crime regarded as heinous by Canada anywhere in the world - e.g., piracy on the high seas. Canada can legislate that as a Canadian domestic crime. The German Code and others have expanded that concept into war crimes, etc.

-----------------------------------------
The second question hinges on jurisdiction to detain. That is obvious where the criminal is within the territorial jurisdiction of the detaining nation. If not, then the practical problem is how to get the criminal before the domestic court - physical control over that person.

So, we have extradition (formal), rendition (informal) and extraordinary rendition (kidnapping, in effect). The situation where a nation's military invades another nation, or occupies it (different legally from a simple invasion), provides a fourth means of obtaining custody of the criminal - if he falls into the hands of the invading army.

Now, the two questions and their answers lead to quite different results when the criminal appears before the domestic court, since question 1 goes to the subject matter jurisdiction of the court, while question 2 goes to the court's personal jurisdiction over the person charged.

If there is no subject matter jurisdiction, the case must be dismissed. So, the issues are

(1) Can Canada legislate the charge as a Canadian domestic crime (most likely, especially if under jurisdictions 1 & 2); and

(2) Has Canada legislated the charge as a Canadian domestic crime (depends on interpretation of the statute, or common law).

As to personal jurisdiction, a court may or may not dismiss even if the means of obtaining custody of the person were "extreme". Yes, persons kidnapped from foreign countries have been successfully tried. That is a messier area of the law.

The international law of jurisdiction to prescribe (legislate) is nicely summarized in this survey article:

Quote:
FindArticles > Washington and Lee Law Review > Fall 2002 > Article > Print friendly
Script kiddies beware: The long arm of U.S. jurisdiction to prescribe
Eisinger, John
.....
This Note concludes that the effects principle allows the United States to prescribe laws against releasing viruses that substantially affect U.S. computers. [42] Furthermore, the protective principle is applicable in cases in which a computer virus specifically targets the U.S. government. [43] However, because passive personality is not as well recognized, it may provide additional justification for jurisdiction, but rarely would justify jurisdiction by itself. [44] Although universal jurisdiction enjoys wide acceptance, it does not cover computer viruses and therefore is not applicable. [45] In addition to having jurisdiction, it is reasonable for the United States to exert its jurisdiction in cases in which a virus substantially affects the United States or targets the United States government, and in which the country of the virus's origin is unable to prosecute. [46] Finally, this Note concludes that Congress intended the 1994 Act to apply extraterritorially. [47]

42. See infra notes 141-49 and accompanying text (explaining how effects principle applies to computer viruses).
43. See infra text accompanying notes 184-94 (noting how computer viruses can invoke protective principle).
44. See infra notes 220-34 and accompanying text (maintaining that passive personality is not well suited for computer viruses).
45. See infra notes 257-60 and accompanying text (concluding that computer viruses do not implicate peremptory norms and thus do not justify universal jurisdiction).
46. See infra notes 307-09 and accompanying text (determining that extraterritorial jurisdiction does not offend international comity in computer virus cases).
47. See infra notes 330-31 and accompanying text (arguing that Congress intended 18 U.S.C. [sec] 1030 (1994) to apply extraterritorially).
http://findarticles.com/p/articles/m...g=artBody;col1

What is nice about this article is that it is without the excess baggage and political spin that tend to obscure articles specifically written about detention and trial in GWOT matters.
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Old 10-01-2008   #6
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Thanks for the answer, JMM - I appreciate it .

Let me toss out an hypothetical situation. Let us suppose that we have a crime judged as heinous by one nation (your point 4 Universal Jurisdiction"- say "blasphemy" - that is either not regarded as "heinous" (or is defined radically differently) by either your country of citizenship or by your country of current residence. In our opinion, could a valid argument be made to support the extraordinary rendition of the person so named? In a slightly different situation, could a military or para-military unit operating in your place of residence during an "undeclared war" (i.e. state vs. non-state actor) validly seize you and both detain and charge you?
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Old 10-01-2008   #7
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Default Next time, let's try actual facts - see PS.

Your question combines a multiplicity of questions. Lawyers like neat, little boxes to start with (no matter how much we bitch about them), since we can then test for possible solutions - and exceptions. Anyway, here is a hypothetical, which covers your facts and a bit more.

Quote:
Flatland - legislature enacts - blasphemy (defined as X, but NOT Y, in statute) is a crime committed by any person anywhere in the world, and subject to the "universal jurisdiction" of Flatland's courts.

Curvedland - legislature enacts - blasphemy (defined as Y, but NOT X, in statute) is a crime committed by any person anywhere in the world, and subject to the "universal jurisdiction" of Curvedland's courts.

Topsyland - constitution (which supercedes all other laws, national and international) provides - blasphemy (whether defined as X or Y) is NOT a crime; no Topsyland national shall be detained, charged, tried or convicted for blasphemy anywhere in the world; and any such action by any other nation shall be considered an act of war against Topsyland.
------------------------------
Now, recalling that jurisdiction to prescribe (legislate) is separate from jurisdiction to detain, we have to start with jurisdiction to prescribe (legislate). From a domestic law standpoint, each nation will consider its law to be correct. Thus, a stalemate between Flatland and Curvedland; and Topsyland's ICBMs will be aimed at both of the other nations. Can I Law provide an answer ? Maybe.

First we look to substance and then to procedure. As to substance, the basic rule is that Universal Jurisdiction applies to crimes made "heinous" by a vast majority of nations (no set number or percentage, since there is no International Constitution). Assuming the three nations are representative of the world, blasphemy cannot be a crime of universal jurisdiction because there is nothing approaching a common rule. Hence, only Topsyland has it right on that point.

Note that this scenaero could turn on its head if, in fact, most nations regarded X as blasphemy, Y as NOT, and that Topsyland should be regarded as an atheistic pariah nation.

-----------------------------
The procedural devil is in the details - and the detail here is how does one enforce our hypothetical I Law principle (blasphemy is not a crime of universal jurisdiction). Unless the nations have in one way or another agreed to submit the issue to an international body with enforcement powers, that principle will not be enforced except by nations, individually or collectively.

Extraterritorial enforcement by nations, individually or collectively, of what it or they believe to be the correct I Law principle is problematic because it clashes with the general I Law principle that "Thou shall not infringe on the domestic sovereignty of any nation" - and there are also a zillion limitations on the use of armed force, etc. So, in a world where there are shifting alliances, etc., I Law is an ideal and not a reality.

Now, let us take Flatland which wants to enforce its law extraterritorially against a national of Plateauland, who has blasphemed by saying X. Now, there are few imaginary situations we can posit for Plateauland:

Quote:
1. Plateauland has the same law as Flattland. In that case, Plateauland probably will prosecute anyway; and everyone in Flatland and Plateauland will be happy - except the blasphemers.

2. Plateauland has no law on blasphemy, but believes X is blasphemy because of its religious beliefs. Now, we have a split again depending on the facts. If the blasphemer is a Plateauland national, Plateauland would probably not be willing to hand him over to Flatland by extradition (formal). It is possible that a segment in Plateauland (say, its security police) would be willing to do that - so, we might have rendition (informal). If the blasphemer were a national of Curvedland or Topsyland, extradition might well occur.

3. Plateauland has no law or religious position on blasphemy (assume it is multi-cultural), but has not gone as far as Topsyland. Plateauland is not likely to either extradite or render what it considers an alleged blasphemer to Flatland. Which brings us to your question about extraordinary rendition.
---------------------------------
Extraordinary rendition, since it does not have the formal (extradition) or informal (rendition) consent of the nation in which it occurs, is an intrusion into the territorial sovereignty of that nation. Whether it is an act of war or not depends on the extent of the intrusion. For example, the British detention of seaman on US registered ships was regarded as an act of war in 1812 - whether the detentions or the declaration of war would be valid under present I Law is another question.

Note that traditionally the remedy for the intrusion is left to the nation whose territory has been violated - it may not care. Also, extraordinary rendition may or may not be a defense for the person rendered, since a domestic court may not care about the means used to bring the criminal before it.

Finally, we might have some nation decide that extraordinary rendition is a "heinous" crime subject to universal jurisdiction - in which case, around and around we go again.

-------------------------------------
Quote:
In a slightly different situation, could a military or para-military unit operating in your place of residence during an "undeclared war" (i.e. state vs. non-state actor) validly seize you and both detain and charge you?
Yes, depending on the facts, of course. BTW: throw out the term "undeclared war" - it is not material to I Law which deals with "armed conflict". It may or may not have relevance in domestic law.

PS: General hypothetical questions are not particularly useful here. It would be better to set out the facts of an actual case and deal with them.
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Old 10-01-2008   #8
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Thanks again JMM.

BTW, I'm explaining why I phrased the questions the way I did in my next post at the symposium.
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Old 10-02-2008   #9
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Default OK, Marc, you tagged me ...

Quote:
Legitimacy as a Battlespace
.....
As a note, I should point towards an absolutely excellent answer to my final question was recently posted at the Small Wars Council (thread; post) by JMM99, who is following the CT Lab symposium (and enjoying "educating" me).
http://www.terraplexic.org/review/20...ttlespace.html

and now, I'm going to have to live with being judged by a standard of "absolute excellence" - a standard that will not be met. In any event, thank you for the kind words - I think.

Your factual point in your post above, which is ..

Quote:
For most people, I suspect that the idea that a person can be taken from their home in one country and charged by another nation under its domestic laws (and without their same protection) is terrifying. Not only is it terrifying, it will, inevitably, undermine the perception of a rule of law, especially if the "law" can be changed and those changes applied retroactively. This strikes at the heart of the perception of a legal system as "legitimate", by attacking people's perceptions regardless of the actual legality of the action.
certainly has perceptive reality - especially with the caveats you list:

1. "without their same protection" - not necessarily fatal in legal logic: that is, to say, US citizens will receive greater rights when prosecuted for the same crime than aliens (JW Lindh vs. Hamdan) - after all, JWL received a longer sentence (and that, after a plea bargain !). Where it becomes more than a capillary cut is where the perception previously created is just the opposite. For years, the US admins (joined often times by the courts) have pushed the concept that we treat everybody in the world the same - you're all just as good as US citizens - one fuzzy, cuddily little world. We are all citizens of the world ! When reality crashes against that perception, we are getting into arterial cuts - from an agitprop, not legal, standpoint.

2. "especially if the "law" can be changed" - again not necessarily fatal from either a legal or agitprop standpoint. In fact, it could be a plus - admission of a screw-up should be regarded as a strength, not a weakness. In our current culture, admission of error seems not the norm - unless an abject apology keeps you out of the Big House, or mitigates the punishment. Admittedly, the sad legislative and administrative history of DTA and MCA is not a good example of how to admit error and to correct them. In fact, the changes seem to have created an even bigger sinkhole, which ended up being tossed in the laps of the DC District and Circuit judges.

3. "and those changes applied retroactively": - I haven't talked about that much in "War Crimes". No definitive decision has held the Ex Post Facto Law Clause applicable. SCOTUS may have to decide that issue. I have a bias there, to the extent that I (like Robert Taft, Sr) questioned the validity of Nuremberg and Tokyo - because of the ex post facto doctrine, despite the very real crimes charged. Having said that, I also have to recognize the WWII War Crimes Trials as precedents, which seem controlling here - since their judgments gave fair warning to future man-eaters.

My bottom line feeling (just that) is that the DTA-MCA system can be salvaged - but it will take people like M.J. Keith Aldred and the working DC judges to do it. While some at terraplexic look at what happened after 9-11 as "seige mentality", I look at the legal aspects largely as a matter of incompetence; and a refusal to admit reality when that reality did not fit the perception that was desired.

Last edited by jmm99; 10-02-2008 at 03:43 AM.
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Old 10-02-2008   #10
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Default Part Terrorist - Part Not Terrorist ...

Can you be partly pregnant ?

Quote:
Absurdities, Ironies, and Other Observations
Brian Glyn Williams
Oct 1, 2008 at 4:50

As to Marc Tyrell's question of "when does a non-state actor become a state," in the case of Al Qaeda in Afghanistan, it had become a state-within-a-state by about 1998. Bin Laden and his commanders sat in on Taliban shuras (councils), helped formulate foreign and domestic policies, and may have made up as much as 20% of the Taliban fighting force in many campaigns. The Taliban were not a state sponsor of terrorism, but a state sponsored by terrorism in this sense (although I would argue that the vast majority of Arabs in Afghanistan were not involved in terrorist operations, they were involved in military operations. It was these same non-state actors who were defined as unlawful combatants or terrorists after 9/11).
http://www.terraplexic.org/review/20...ervations.html

He makes the same points in his main article.

Some legal comments (fairly brief) here.

1. The Taliban was not a state; AQ was not a state, within or without Taliban. Afghanistan was and is the state (nation). Williams (who should know better) is confusing a government (recognized or not) with a state (nation). Once a nation is recognized by the international community, that nation continues until it is absorbed in another nation (and becomes part of that state), or partitions itself into two or more nations (e.g., Russias's claim as to S. Ossetia and Abkhazia). That basic I Law 101 rule applies even if the nation has no government - a case which Afghanistan approached on 9-10-2001.

2. The Taliban was not generally recognized as the government of Afghanistan. True, it controlled a large amount of its territory (85% ?), but hostilities were still in process. Lest we get into the different concepts that supposedly control recognition (it is ultimately a political question) - de jure vs. de facto; legitimate existence vs. effective existence, etc., I have a few factual questions about the Taliban (and AQ's Ansar "brigade"), which avoid the recognition issue:

Quote:
Did the Taliban state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did the Taliban abide by the provisions of the GCs in their armed conflicts with the Northern Alliance, US and allied forces ? If so, make your case - prove it

Did AQ-Ansar state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did AQ-Ansar abide by the provisions of the GCs in their armed conflicts with the Northern Alliance,
US and allied forces ? If so, make your case - prove it
If you wonder why I am asking these questions, consult the Reporter's Notes to common Article III and preceding Articles I & II of the 1948 GCs.

3. Agree factually on the AQ influence within Taliban. Happened to be re-reading vol 1 of the Pentagon Papers the other night - a cure for insomnia - about the VM and VC organizational structure and control of their Popular Fronts. Now, if AQ happened to be an international war criminal organization, would not that make Taliban part of that conspiracy - because, as Williams says: "The Taliban were not a state sponsor of terrorism, but a state sponsored by terrorism in this sense [of AQ participation in Taliban]. Cite: Numerberg judgments on international criminal organizations.

4. Agree factually that "... the vast majority of Arabs in Afghanistan were not involved in terrorist operations, they were involved in military operations. It was these same non-state actors who were defined as unlawful combatants or terrorists after 9/11." Yes, they all were run through basic training and the foot-soldiers were separated from those who were suited to special operations. The same argument was made at Nuremberg - that the Waffen SS should be distinguished from the Gestapo and the executioners. That argument didn't work then - why now ?

-----------------------------------------
Comment (very much IMO)

The first principle of trial work is primacy - the attack is aimed at the arteries (head and heart shots are rare) as soon as you find a seam (open door), taking your best shot (or shots, if you can MIRV your attack). Never go after the capillaries, except to probe for a seam.

Applying that principle, the prosecution in the "War Crimes" cases should have been directed to go after the senior man-eaters (KSM, etc.), with everything that the Nuremberg and Tokyo precedents would allow - AQ as an international criminal organization, aggressive war, crimes against humanity and run of the mill war crimes where applicable. You either win that or you don't - nothing ventured, nothing gained.

Instead, the initial attack was aimed at such as Hamdan (partly cleared) and Parhat (wholly cleared) - the most sympathetic cases (for the defense) that could have been selected.

Consider that for a moment.
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Old 10-02-2008   #11
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What about the Indian Tribes of the United States? They are an association of nations within the United States and have limited sovereign powers. I don't believe they've ever been recognized by anybody yet they are given that status.
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Old 10-02-2008   #12
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Default Indian Nations

Hey Selil,

Actually know a bit about that topic, but it will move us off-topic here. They do have a special status - similar to that of ASSRs in the old Soviet Union.

I'll send you a PM on that.
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Old 10-02-2008   #13
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Default 1949 GC III - Art. 2 - Text & History

Since this Article will enter into the discussion, everybody might as well have access to it without having to search the Red Cross website.

The text of Article 2 is short, but has a much longer legislative history which is reflected in the Commentary.

1949 GC III - Treatment of Prisoners of War - Article 2

Quote:
Art 2. In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
The Commentary is generally held to be pursuasive, but not binding on a court, when considering the text of the Convention

Quote:
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Commentary
Part I : General provisions

[all snips in this and following parts are from pp.19-27 of the Commentary]

[p.19] ARTICLE 2. -- APPLICATION OF THE CONVENTION
GENERAL AND HISTORICAL

[pp.19-20]
...
.... Since 1907 experience has shown that many armed conflicts, displaying all the characteristics of a war, may arise without being preceded by any of the formalities laid down in the Hague Convention.

Furthermore, there have been many cases where Parties to a conflict have contested the legitimacy of the enemy Government and therefore refused to recognize the existence of a state of war. In the same way, the temporary disappearance of sovereign States as a result of annexation or capitulation has been put forward as a pretext for not observing one or other of the [p.20] humanitarian Conventions. It was necessary to find a remedy to this state of affairs and the change which had taken place in the whole conception of such Conventions pointed the same way. The Geneva Conventions are coming to be regarded less and less as contracts concluded on a basis of reciprocity in the national interests of the parties, and more and more as a solemn affirmation of principles respected for their own sake, a series of unconditional engagements on the part of each of the Contracting Parties ' vis-à-vis ' the others. ...
....
[pp.21-22]
...
But the draft text said nothing about the relations between a belligerent, or belligerents, bound by the Conventions on the one hand, and a belligerent, or belligerents, not bound by it on the other hand. The ' clausula si omnes ' (4) which was included in the 1906 Geneva Convention -- but which was never invoked during the First World War, although it might appropriately have been in the case of Montenegro -- was omitted in 1929. But although the Convention was binding upon the Contracting States in their relations as between each other, they were still under no obligation in regard to States which were not parties to that instrument. The ideal solution would obviously have been that all the Parties to a conflict should be obliged to apply the Convention in all circumstances, i.e. even if the adversary was not a party to it, and despite the fact that the Convention would be a ' res inter alios acta ' for the latter.

There could be no question of reverting to the ' clausula si omnes ', which had fortunately been abandoned in recent times, since it no longer corresponded to humanitarian needs. The 1929 Convention had already departed from it by stating in the second paragraph of Article 82 that "in time of war, if one of the belligerents is not a party to the Convention, its provisions shall, nevertheless, remain binding as between the belligerents who are parties thereto". Thus the provisions concerning prisoners of war were given the binding force of which they had been deprived by the solutions adopted at the Peace Conferences. The fact that one of the belligerents was not a party to the Convention could no longer nullify its applicability.
Although from the legal point of view there was no way to extend the scope of the Convention, it was necessary to find one on the humanitarian plane. The Committee accordingly suggested to the Governments represented at the Diplomatic Conference of 1949 that the following two sentences be added to Article 2 :

"In the event of an international conflict between one of the High Contracting Parties and a Power which is not bound by the present Convention, the Contracting Party shall apply the provisions thereof. This obligation shall stand unless, after a reasonable lapse of time, the Power not bound by the present Convention states its refusal to apply it, or in fact fails to apply it." (5)

[p.22] The Diplomatic Conference also considered two other proposals (6) -- one, from the Canadian Delegation, suggesting that the Convention should also be applicable to a Power not party to the Convention so long as that Power complied with its provisions, and another, from the Belgian Delegation, which read as follows: "The Powers which are a party to the Convention shall invite the Power which is not a party to it to accept the terms of the said Convention; as from the latter Power's acceptance of the Convention, all Powers concerned shall be bound by it."

The fact that there was no objection to this principle was a sure sign that the time was ripe for this step forward in international law. The discussion turned solely on the conditions to be fulfilled. The condition underlying both the Canadian proposal and the proposal of the International Committee of the Red Cross was resolutive, while the Belgian proposal was based on a suspensive condition. As agreement could not be reached on any of these proposals, they were discarded in favour of the compromise wording of the present text.

The Rapporteur of the Special Committee gives the following explanation of the motives which guided his Committee: "As a general rule, a Convention could lay obligations only on Contracting States. But, according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized. The text adopted by the Special Committee, therefore, laid upon the Contracting State, in the instance envisaged, the obligation to recognize that the Convention be applied to the non-contracting adverse State, in so far as the latter accepted and applied the provisions thereof" (7).

(4) [(1) p.21] Clause providing that obligations are binding on a belligerent only of ' all ' the belligerents on the opposing side (principal adversary and allies of that adversary) are also bound by the same obligations;

(5) [(2) p.21] See ' Remarks and Proposals submitted by the International Committee of the Red Cross, ' p. 9;

(6) [(1) p.22] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-B, pp. 53-54 and 107-108;

(7) [(2) p.22] Ibid., Vol. II-B, p. 108 (First Report drawn up by the Special Committee of the Joint Committee);
Rather long, but the history of the "accept" and "apply" clause has special relevance here.
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Old 10-02-2008   #14
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Default 1949 GC III - Art. 2 - Para 1

Text

Quote:
Art 2. In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
Commentary

Quote:
PARAGRAPH 1. -- ARMED CONFLICTS INVOLVING
THE APPLICATION OF THE CONVENTION

By its general character, this paragraph deprives belligerents, in advance, of the pretexts they might in theory put forward for evading their obligations. There is no need for a formal declaration of war, or for the recognition of the existence of a state of war, as preliminaries [p.23] to the application of the Convention. The occurrence of de facto hostilities is sufficient.

It remains to ascertain what is meant by "armed conflict". The substitution of this much more general expression for the word "war" was deliberate. It is possible to argue almost endlessly about the legal definition of "war". A State which uses arms to commit a hostile act against another State can always maintain that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence.

The expression "armed conflict" makes such arguments less easy. Any difference arising between two States and leading to the intervention of members of the armed forces (8) is an armed conflict within the meaning of Article 2 , even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4 . Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.

The Convention provides only for the case of one of the Parties denying the existence of a state of war. What would the position be, it may be wondered, if both the Parties to an armed conflict were to deny the existence of a state of war? Even in that event it would not appear that they could, by tacit agreement, prevent the Conventions from applying. It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests. Even if the existence of a state of war is disputed, Article 3 can be applied.

(8) [(1) p.33] This was the Special Committee of the Joint Committee. The provision in question was discussed, first as Article 2, paragraph 4 (i.e. with the numbering it had in the Stockholm draft), and later as Article 2A. See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-B, pp. 40-48, 75-79, 82-84, 90, 93-95, 97-102;
This is self-explanatory - the key is that a "declared war" is not a material factor.
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Old 10-02-2008   #15
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Default 1949 GC III - Art. 2 - Para 2

Text

Quote:
Art 2. ...
.... The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Commentary

Quote:
PARAGRAPH 2. -- OCCUPIED TERRITORIES

This new provision is particularly pertinent for the protection of civilian persons under the Fourth Convention, but its inclusion is none the less appropriate in regard to prisoners of war, since, even in the absence of resistance, the Occupying Power might be tempted to intern all or part of the armed forces of the adversary in the interests of its future security. For that reason it was necessary to ensure that such internees would be treated as prisoners of war throughout their detention.
While not expressly mentioned in the Commentary, Art. 2, para 2 has obvious application to a situation where two factions (each claiming to be the legitimate government of a "High Contracting Party", assuming the nation in question previously adopted the Convention) are fighting over that nation's territory. In that case, only one of them can be the legitimate government (and representative of the "High Contracting Party") of the nation. The other faction would be covered as a "Power" to the conflict by Art. 2, para 3.

The situation would be altered factually (and somewhat legally) if one of the factions claimed that it was forming a new nation (state). In that case, the other faction would continue as representative of the "High Contracting Party", and the "new nation" faction would still be covered as a "Power" to the conflict by Art. 2, para 3.

Afghanistan 9-10-2001 involved either situation 1 or 2. Post 9-11-2001, a number of "High Contracting Parties" entered the picture. Which of them, and for what time frame, was an "Occupying Power" is a mixed question of law and fact.
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Old 10-02-2008   #16
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Default 1949 GC III - Art. 2 - Para 3

Text

Quote:
Art 2. ...
.... Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
Commentary

Quote:
[p.24] PARAGRAPH 3. -- CONFLICTS IN WHICH THE BELLIGERENTS
ARE NOT ALL PARTIES TO THE CONVENTION

1. ' Relations between belligerents party to the Convention '

This provision appears to state an elementary truth; but that was not always the case. The Hague Conventions of 1907 and the Geneva Convention of 1906 all contained a ' clausula si omnes ' (9), and that provision was in force when the First World War broke out in 1914. But despite the fact that the application of the Convention might have been suspended on the ground that one of the belligerents -- Montenegro -- was not a party to it, all the Contracting States in general honoured their signature (10).

It was essential, however, to clarify the position and to prevent any future recurrence of a situation similar to that of 1914. It should be noted that this problem of relations between opposing Powers is quite distinct from that of the relations between allied Powers fighting under a unified command. The latter case, which is also very important, is considered later in this volume, in connection with Article 12 .

2. ' Relations between Contracting and non-Contracting Parties '

The second sentence, added by the Diplomatic Conference of 1949, has certainly the characteristics of a compromise, for it does not come to a decision between the suspensive and resolutive conditions. At first sight it appears to incline towards the Belgian amendment. But whereas the latter only made the Convention applicable as from the time of its formal acceptance by the non-Contracting Power, the sentence adopted by the Diplomatic Conference drops all reference to an invitation to be made to the non-Contracting Power, and substitutes for the words "as from the latter Power's acceptance" the words "if the latter accepts and applies the provisions thereof".

What, then, is the position in the interval between the launching of hostilities and the non-contracting belligerent's acceptance?

[p.25] The First Report by the Special Committee of the joint Committee, to which reference has already been made, states: "according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized" (11). This passage shows how this not very clear provision should be interpreted.

The spirit and character of the Conventions lead perforce to the conclusion that the Contracting Power must at least apply their provisions from the moment hostilities break out until such time as the adverse Party has had the time and an opportunity to state his intentions. That may not be a strictly legal interpretation; it does not altogether follow from the text itself; but it is in our opinion the only reasonable solution. It follows from the spirit of the Conventions, and is in accordance with their character. It is also in accordance with the moral interest of the Contracting Power, inasmuch as it invites the latter to honour a signature given before the world. It is finally to its advantage from a more practical point of view, because the fact of its beginning itself to apply the Convention will encourage the non-Contracting Party to declare its acceptance, whereas any postponement of the application of the Convention by the Contracting Party would give the non-Contracting Party a pretext for nonacceptance.

There are two conditions to be fulfilled under this part of the paragraph -- (a) acceptance and (b) de facto application of the Convention. What happens if the non-Contracting Party makes no declaration, but in actual fact applies the Convention? Before answering this question, it must be seen what is meant by "accepting" the provisions of the Convention (11).

Is a formal and explicit declaration by a non-Contracting State indispensable? The Rapporteur of the Special Committee seems to say that it is. "A declaration" he wrote "was necessary, contrary to the Canadian amendment, according to which an attitude on the part of the non-Contracting State in conformity with the Convention would have sufficed to make it applicable". He added, it is true, that it was not possible to lay down any uniform procedure in the matter, and that "the Convention would be applicable as soon as the declaration was made. It would cease to be applicable as soon as the declaration was clearly disavowed by the attitude of the non-contracting belligerent" (12).

[p.26] Does it follow from this that, if the second condition -- namely the application of the Convention de facto -- is alone fulfilled, the Contracting Party is released from its obligations?

Closely as that may seem to follow from the letter of the text, it does not appear possible to maintain such an interpretation. It would make the application of the Convention dependent on a suspensive condition even more rigid than that of the Belgian proposal, which was itself regarded as being too strict. It would bring about a paradoxical -- not to say, a monstrous -- situation. It would entitle a Power to disregard rules solemnly proclaimed by itself, while its adversary, though not legally bound to those rules, was scrupulously applying them; and all this only because of the omission of the latter to make a declaration, or because of delay in the transmission of such a declaration.

' Summum jus summa injuria. ' The saying may often be true; but it should never be cited in reference to a humanitarian Convention. The Third Convention, like its three sister Conventions, rightly condemns reprisals against persons in the most categorical terms. But would it not be worse than any reprisals to ill-treat prisoners even before one's adversary had done so, merely because it was inferred from his silence that he was intending to do so?

The two conditions laid down for the non-Contracting Power are that it should ' accept ' and ' apply ' the provisions of the Convention. In the absence of any further indication, there is no reason to assume that "acceptance" necessarily implies an explicit declaration. It can equally well be tacit. It may be implicit in de facto application. These considerations do not in any way minimize the importance of an explicit declaration by the non-Contracting Power. It is, on the contrary, most desirable that the latter should make such a declaration, and with the least possible delay. The International Committee of the Red Cross for its part, when offering its services at the beginning of a conflict, never fails to ask Parties to the conflict which are not legally bound by the Convention to declare their intention of applying it or of observing at least its principles, as the case may be.

In practice, any Contracting Power in conflict with a non-Contracting Power will begin by complying with the provisions of the Convention pending the adverse Party's declaration. It will take into account facts above all.

Furthermore, although the Convention, as a concession to legal form, provides that in certain circumstances a Contracting Power may legally be released from its obligations, its spirit encourages the Power [p.27] in question to persevere in applying humanitarian principles, whatever the attitude of the adverse Party may be. (13)

(9) [(1) p.24] See above, p. 21;

(10) [(2) p.24] As stated in the Commentary on the 1929 Geneva Convention, "the facts backed by the signatures of the signatories and by the humanitarian interests of all, outweighed the law." Paul DES GOUTTES, ' Commentaire de la Convention de Genève du 17 juillet 1929, ' Geneva, 1930, ad Article 25, p. 188;

(11) [(1) p.25] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-B, p. 108;

(12) [(2) p.25] Ibid., p. 109;

(13) [(1) p.27] This paragraph of Article 2 was applied during the Suez conflict in the autumn of 1956, when the opposing Parties were Egypt, on the one hand, and France, Israel and the United Kingdom, on the other. Of these, only the United Kingdom was not bound by the Conventions, which it had not yet ratified. Nevertheless, in reply to a telegram from the International Committee of the Red Cross the
British Prime Minister stated that, pending their formal ratification, the United Kingdom Government accepted the Conventions and fully intended to apply their provisions, should the occasion arise. The ICRC informed the other States Party to the conflict of this statement, and none of the belligerents contested the applicability of the Conventions.
The provisions of GC III, Art. 3 are roughly twice as long as the above parts. Those of GC III, Art. 4 are roughly twice as long as those of GC III, Art. 3. I suggest resolving issues under GC III, Art. 2 before attacking the other parts.
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Old 10-02-2008   #17
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Default Constitutional History of Afghanistan

This is a boring slog, since all of these documents are much the same. However, they prove how Afghanistan looked at itself as a nation (state).

They also prove that Afghanistan was a state from 1923 to the present - the relevant period in Afghan constitutional history which encompasses the 1949 GCs, to which Afghanistan was and is a "High Contracting Party".

Quote:
Geneva Conventions of 12 August 1949.
State Parties Afghanistan
Signature 08.12.1949
Ratification / Accession 26.09.1956
Reservation / Declaration - None
http://www.cicr.org/ihl.nsf/WebSign?...rm&id=375&ps=P

Constitution of Afghanistan (1923)

Quote:
The Constitution of Afghanistan April 9, 1923
....
Article 1
Afghanistan Is Completely Free and Independent in the Administration of its Domestic and Foreign Affairs. All Parts and Areas of the Country Are under the Authority of His Majesty the King and Are to Be Treated as a Single Unit Without Discrimination Between Different Parts of the Country.
http://www.afghan-web.com/history/const/const1923.html

Constitution of Afghanistan (1964)

Quote:
The Constitution of Afghanistan 1964
.....
Title One
The State
Article 1
Afghanistan Is a Constitutional Monarchy; an Independent, Unitary and Indivisible State. Sovereignty in Afghanistan Belongs to the Nation. The Afghan Nation Is Composed of All Those Individuals Who Possess the Citizenship of the State of Afghanistan in Accordance with the Provisions of the Law. The Word Afghan Shall Apply to Each Such Individual.
http://www.afghan-web.com/history/const/const1964.html

Constitution of Afghanistan (1976)

Quote:
The Constitution of Afghanistan 1976
....
Chapter Three
The State
Article Twenty: Afghanistan Is a Republican, Democratic, Independent, Unitary and Indivisible State.
Article Twenty One: National Sovereignty in Afghanistan Belongs to the People. The Nation of Afghanistan Consists of All Those Individuals Who Hold the Citizenship of the State of Afghanistan in Accordance with the Provisions of the Law. The Word Afghan Shall Apply to Each and Every Individual of the Nation of Afghanistan.
http://www.afghan-web.com/history/const/const1976.html

Constitution of Afghanistan (1987)

Quote:
The Constitution of Afghanistan 1987
....
Chapter One
Foundations of the Political System
Article One:
The Republic of Afghanistan Is an Independent Unitary and Indivisible State Having Sovereignty over the Whole of its Territory. The National Sovereignty in the Republic of Afghanistan Rests with the People. The People Exercise National Sovereignty Through Loya Jirga, National Assembly and Local Councils.
http://www.afghan-web.com/history/const/const1987.html

Constitution of Afghanistan (1990)

Quote:
The Constitution of Afghanistan 1990
.....
Chapter One
Foundations of the Political System
Article One:
The Republic of Afghanistan Is an Independent, Unitary and Indivisible and Islamic State, Having Sovereignty over the Whole of its Territory. National Sovereignty in the Republic of Afghanistan Belongs to the People. The People Exercise National Sovereignty Through Loya Jirga and National Assembly.
http://www.afghan-web.com/history/const/const1990.html

Constitution of Afghanistan (2004)

Quote:
The Constitution of the Islamic Republic of Afghanistan
(Ratified) January 26, 2004
....
Chapter One: State
Article One
Afghanistan shall be an Islamic Republic, independent, unitary and indivisible state.
Article Two
The sacred religion of Islam is the religion of the Islamic Republic of Afghanistan. Followers of other faiths shall be free within the bounds of law in the exercise and performance of their religious rituals.
Article Three
No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.
Article Four
National sovereignty in Afghanistan shall belong to the nation, manifested directly and through its elected representatives. The nation of Afghanistan is composed of all individuals who possess the citizenship of Afghanistan. The nation of Afghanistan shall be comprised of Pashtun, Tajik, Hazara, Uzbek, Turkman, Baluch, Pachaie, Nuristani, Aymaq, Arab, Qirghiz, Qizilbash, Gujur, Brahwui and other tribes. The word Afghan shall apply to every citizen of Afghanistan. No individual of the nation of Afghanistan shall be deprived of citizenship. The citizenship and asylum related matters shall be regulated by law.
OK, all of that proves that Afghanistan has been a nation (state) at all times relevant to this discussion. The next issue is the successive governments of Afghanistan - in short, who had authority to speak for the "High Contracting Party" under the 1949 GCs.
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Old 10-02-2008   #18
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Default Governments in Afghanistan

Presidents

Nur Muhammad Taraki - 30 April 1978 – 16 September 1979
Hafizullah Amin - 16 September 1979 – 27 December 1979
Babrak Karmal - 27 December 1979 – 24 November 1986
Haji Mohammad Chamkani - 24 November 1986 – 30 September 1987
Mohammad Najibullah - 30 September 1987 – 16 April 1992
Abdul Rahim Hatef - 16 April 1992 – 28 April 1992
Sibghatullah Mojaddedi - 27 April 1992 – 28 June 1992
Burhanuddin Rabbani - 28 June 1992 – 27 September 1996, 27 September 1996 – 13 November 2001 (President of the Northern Alliance), 13 November 2001 – 22 December 2001
Hamid Karzai - 22 December 2001 (acting until 7 December 2004 - under 2004 Constitution)

wiki bios start at:

http://en.wikipedia.org/wiki/Nur_Muhammad_Taraki

You can just follow along via the links at the bottom of the page.

Chronological History of Afghanistan

http://www.afghan-web.com/history/chron/index4.html

United Islamic Front for the Salvation of Afghanistan (Northern Alliance)

http://en.wikipedia.org/wiki/United_...of_Afghanistan

Note: these Wiki articles are not cited as evidence - but merely as a quick entry into the timeline and characters.

------------------------------------------
Taliban

Head of the Supreme Council of Afghanistan
Islamic Emirate of Afghanistan
Mohammed Omar - 27 September 1996 – 13 November 2001

http://en.wikipedia.org/wiki/Mohammed_Omar

Quote:
Islamic Emirate of Afghanistan [1] was the name given to the nation of Afghanistan by the Taliban during their rule, from 1996 to 2001. At the peak of their influence the Taliban never controlled the entire area of Afghanistan, as about 10% of the country in the northeast was held by the United Islamic Front for the Salvation of Afghanistan. [simple map shows area of Taliban control].
.....
Only Pakistan, Saudi Arabia, and the United Arab Emirates ever recognized the Taliban government. Turkmenistan also de facto recognized the Taliban government, as it had official meetings and agreements with Taliban government ministers.

One reason for this lack of international recognition was the Taliban's disregard for international law. One of the first acts of the Islamic Emirate was the killing of the former President of Afghanistan, Mohammad Najibullah. Before the Taliban had even taken control of Afghanistan's capital they sent out a squad to arrest, torture, mutilate and kill Najibullah, leaving his body hanging from a street lamp outside the presidential palace for two days. As Najibullah was staying in the United Nations compound in Kabul, this was a violation of international law.[4] The Taliban regime was also heavily criticised for the murder of Iranian diplomats in Afghanistan[4] [5] in 1998.
....
[1] Directorate of Intelligence (2001). "CIA -- The World Factbook -- Afghanistan
[4] Mullah Omar : WarlordsofAfghanistan.com [This link adds absolutely nothing of present value]
[5] [15 Sep 1998] SC/6573 : SECURITY COUNCIL STRONGLY CONDEMNS MURDER OF IRANIAN DIPLOMATS IN AFGHANISTAN
http://en.wikipedia.org/wiki/Islamic...of_Afghanistan

Quote:
15 September 1998
Press Release
SC/6573
SECURITY COUNCIL STRONGLY CONDEMNS MURDER OF IRANIAN DIPLOMATS IN AFGHANISTAN
19980915
http://www.un.org/News/Press/docs/19...15.sc6573.html

These facts cut against the Taliban's having authority to speak for the nation of Afghanistan, as a "High Contracting Party" under the 1949 GCs.

The below facts, if true, could lead to another legal theory concerning the Taliban:

Quote:
Governance

The Taliban did not hold elections, as their spokesman explained:

"The Sharia does not allow politics or political parties. That is why we give no salaries to officials or soldiers, just food, clothes, shoes and weapons. We want to live a life like the Prophet lived 1400 years ago and jihad is our right. We want to recreate the time of the Prophet and we are only carrying out what the Afghan people have wanted for the past 14 years. " [32]

Instead of an election, their leader's legitimacy came from "Bay'ah" or oath of allegiance in imitation of the Prophet and early Muslims. On 4 April 1996, Mullah Omar had the "the Cloak of the Prophet Mohammed," taken from its shrine "for the first time in 60 years." Wrapping himself in the relic, he appeared on the roof of a building in the center of Kandahar while hundreds of Pashtun mullahs below shouted "Amir al-Mu'minin!" (Commander of the Faithful), in a de facto pledge of support.

Also in keeping with the governance of early Muslims was a lack of state institutions or "a methodology for command and control" standard today internationally even among non-Westernized states. The Taliban didn't issue "press releases, policy statements or hold regular press conferences," and of course the outside world and most Afghans didn't even know what they looked like, since photography was banned.[33] Their regular army resembled "a lashkar or traditional tribal militia force" with only 25,000 to 30,000 men, these being added to as the need arose. Cabinet ministers and deputies were mullahs with a "madrassa education." Several of them, such as the Minister of Health and Governor of the State bank, were primarily military commanders who left their administrative posts to fight when needed. If and when military reverses trapped them behind lines or led to their deaths, this created "even greater chaos" in the national administration.[34] In the Ministry of Finance there was no budget or "qualified economist or banker." Cash to finance Taliban war effort was collected and dispersed by Mullah Omar without book-keeping.

[32] March 1996 interview in Kandahar with Mullah Wakil, an aide to Omar by Ahmed Rashid, from Rashid's book Taliban (2000), p.43
[33] Rashid, Taliban (2000), p.5
[34] Rashid, Taliban (2000), p.100
http://en.wikipedia.org/wiki/Taliban

Note: I am not citing Wiki as an "expert witness" - the links are simply a quick way for someone to get the general drift of the situation (s) over the years.

Here are the two legal theories which might fit the Taliban 1996-2001:

Quote:
1. The Taliban was a "Power" in the Afghan conflict - not the recognized government of Afghanistan. Hence, it would have had to accept the GCs and apply them in order to enjoy their benefits under Art. 2.

2. The Taliban, in fact, created a new nation in that large portion of Afghanistan which they controlled. Given the vast divergence of what seems to have been their "organic law" from the norms of the written Afghan constitutons, that is a plausible argument. It does not help them under the GCs since they would then be a non-contracting party. So, we would be back to the requirements of Art. 2 - a "Power" in the armed conflict, who would have had to accept the GCs and apply them in order to enjoy their benefits.
We are back to my four questions, concerning acceptance and application of the GCs by the Taliban and AQ-Ansar.

I am no factual expert on Afghanistan. There should be a zillion people here with factual expertise on the key factual issues. Like to hear from you.
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Old 10-12-2008   #19
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Default Where We Are - Where We Are Going

Before going on with what could become a very long-winded series, we might re-capitulate - where have we been and where we are going. In short, what is the end goal here ?

The purpose is to refute (my present view), or to confirm (less likely IMO), the heart of Bryan William's basic argument (post #1 refs): (1) that the Taliban was a nation (state), or alternatively the government of a recognized nation (state; i.e., Afghanistan); (2) that, as a nation or government, the Taliban had armed forces which included AQ's Ansar "brigade" as a constituent part; and (3) that, as such, the "troops" of the Taliban and AQ's Ansar "brigade" were protected persons via GC III, Arts. 2 and 4. The key to the discussion is the correct interpretation of those articles.

GC III, Art. 2 (posts ## 14-16) is primarily based on the concept of a High Contracting Party (a nation which has formally accepted the GCs), introduced in Art. 1, which is bound to abide by the GCs (whether it does so or not is a separate issue). Thus, the terms "party" or "parties" in Art. 2 initially refer to a High Contracting Party (more on Art. 2, para 3, below). Post #17 establishes that Afghanistan, as a recognized nation, was and is a "High Contracting Party" to the GCs.

Art. 2 also recognizes that other groups (not High Contracting Parties) may be involved in an "armed conflict". Thus, all organized groups involved in an armed conflict may fall within the definition of Powers involved in that conflict. For example, the Taliban was clearly a Power in the Afghan conflict (1994-2001), under Art. 2, para 3, (post # 16); and an Occupying Power (once it occupied much of Afghanistan, a High Contracting Party), under Art. 2, para 2 (post # 15).

GC III, Art. 2, para 3 (post # 16), establishes a procedure whereby a Power (not a High Contracting Party) can become a Party (for purposes of Art. 4 and the rest of the POW articles) by accepting and applying the GCs (thus my four questions, post # 10).

Of course, if a Power is or becomes the recognized government of the High Contracting Party (here, Afghanistan), that Power is the representative of a High Contracting Party; it is bound by and entitled to the protections of the GCs; and we proceed directly to GC III, Art. 4.

If a Power does not meet the requirements of Art. 2, para 3, we then have to consider application of common Art. 3 (included in all four GCs).

The recognized governments of Afghanistan have been cut and dried (from the standpoint of US diplomatic recognition) over much of its history. However, the situation during the period 1996-2001 was not so cut and dried (see, post # 18, for the conflicting "governments" in 1996-2001). We will address that period - and those before and after it - in subsequent posts.

As to the Taliban (and AQ's Ansar "brigade", assuming it was part of the Taliban's armed forces), we have the following flowchart:

Quote:
1. Taliban was the recognized government of Afghanistan - go directly to GC III, Art. 4 (POW status for its armed forces as defined in Art. 4); or

2. Taliban was not the recognized government of Afghanistan, but accepted and applied the GCs (as defined in GC III, Art. 2, para 3, post # 16) - go directly to GC III, Art. 4 (POW status for its armed forces as defined in Art. 4)[*]; or

3. Taliban was not the recognized government of Afghanistan, and did not accept or apply the GCs - do not go to GC III, Art. 4 (which cannot then apply), but consider the application of GC III, Art. 3. That has been the stance of the US government; albeit not always well-expressed.
The first step is determination of what group (if any) was the recognized government of Afghanistan during the relevant period (1996-2001). We are dealing with that issue in the context of the US judicial system (Article III Federal courts and US Military Commissions). Thus, we have to abide by the US judicial standard for diplomatic recognition of a government.

Anyone may argue (here or elsewhere) that this or that government was (is) or should have been (should be) the "recognized government" of Afghanistan - whether de facto or de jure, efficient or legitimate, and so on - and even put together a "mock trial" to "adjudicate" the question. However, that argument will fail in a Federal court (see next post).

It is entirely conceivable that a court in another nation could reach a different determination. For example, a Pakistani court (if it followed the same basic rule) would be compelled to hold that the Taliban was the recognized government of Afghanistan during the period 1997-2001 - since that was the position of the Pakistani government.

[*] fn - "new nation". The same requirements and result would apply if it is argued that the Taliban's "state" was a new nation (since, as that nation, it would not be a High Contracting Party to the GCs). Since the US government (Executive branch) never recognized the Taliban "state" as a new nation, that argument would be rejected out of hand by any Federal court following established precedents.

The HAMDAN SYMPOSIUM (Terraplexic) has now closed, without substantial discussion of GC III, Arts. 2, 3 & 4. The Hamdan case is also pretty much history. However, the issues discussed in this long series of posts will return in the forthcoming MCA trials. So, I am proceeding with this as a reference for others and for me as those cases develop.

Last edited by jmm99; 10-12-2008 at 03:53 AM.
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Old 10-12-2008   #20
jmm99
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Default US Judicial Standard - Executive Branch Recognition

As you will find from this Wiki article on diplomatic recognition, standards differ among nations once you get beyond the basic definition.

Quote:
Diplomatic recognition in international law is a unilateral political act, with domestic and international legal consequences, whereby a state acknowledges an act or status of another state or government. Recognition can be accorded either de facto or de jure, usually by a statement of the recognizing government. .....
http://wapedia.mobi/en/Diplomatic_recognition

In US courts, the vagaries of I Law do not come into play in determining whether a government is recognized or not. The courts are required to take judicial notice of the Executive's position on diplomatic recognition of a particular government. That rule is established by many cases - here are two:

United States v. Belmont, 301 U.S. 324 (1937)

Quote:
Page 301 U. S. 330
....
We take judicial notice of the fact that, coincident with the assignment set forth in the complaint, the President recognized the Soviet Government, and normal diplomatic relations were established between that government and the Government of the United States, followed by an exchange of ambassadors. The effect of this was to validate, so far as this country is concerned, all acts of the Soviet Government here involved from the commencement of its existence. The recognition, establishment of diplomatic relations, the assignment, and agreements with respect thereto, were all parts of one transaction, resulting in an international compact between the two governments. That the negotiations, acceptance of the assignment, and agreements and understandings in respect thereof were within the competence of the President may not be doubted. Governmental power over internal affairs is distributed between the national government and the several states. Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty-making clause of the Constitution (Art. II, § 2), require the advice and consent of the Senate.
http://supreme.justia.com/us/301/324/case.html

United States v. Pink, 315 U.S. 203 (1942)

Quote:
Page 315 U. S. 229

.... The powers of the President in the conduct of foreign relations included the power, without consent of the Senate, to determine the public policy of the United States ....

"What government is to be regarded here as representative of a foreign sovereign state is a political, rather than a judicial, question, and is to be determined by the political department of the government."

Guaranty Trust Co. v. United States, supra, 304 U.S. at p. 304 U. S. 137. That authority is not limited to a determination of the government to be recognized. It includes the power to determine the policy which is to govern the question of recognition. Objections to the underlying policy, as well as objections to recognition, are to be addressed to the political department, and not to the courts. See Guaranty Trust Co. v. United States, supra, p. 304 U. S. 138; 55 U. S. 50-51. ...
.....
Recognition is not always absolute; it is sometimes conditional. 1 Moore, International Law Digest (1906), pp. 73-74; 1 Hackworth, Digest of International Law (1940), pp. 192-195. Power to remove such obstacles to full recognition as settlement of claims of our nationals (Levitan, Executive Agreements, 35 Ill.L.Rev. 365, 382-385) certainly is a modest implied power of the President, who is the "sole organ of the federal government in the field of international relations." United States v. Curtiss-Wright Corp., supra, p. 299 U. S. 320. Effectiveness in handling the delicate problems of foreign relations requires no less. Unless

Page 315 U. S. 230

such a power exists, the power of recognition might be thwarted or seriously diluted. No such obstacle can be placed in the way of rehabilitation of relations between this country and another nation unless the historic conception of the powers and responsibilities of the President in the conduct of foreign affairs (see Moore, Treaties and Executive Agreements, 20 Pol.Sci.Q. 385, 403-417) is to be drastically revised....
http://supreme.justia.com/us/315/203/case.html

A Federal court will want evidence of which (if any) government is or was recognized by the Executive branch - any other proof or argument is irrelevant.

Last edited by jmm99; 10-12-2008 at 03:54 AM.
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