Det danske Fredsakademi
Kronologi over fredssagen og international politik 9. Mars 2005 / Time Line March 9, 2005
Version 3.503/09/2005
Three Misconceptions about the Laws of War
By Jelena Pejic
© 2005 Crimes Of War Project -- crimesofwar.org
http://www.crimesofwar.org/onnews/news-miscon.html
After decades of being debated among the initiated few, the basic
concepts of the laws of war seem finally to have captured the
public's attention. The rights of prisoners of war, the meaning of
humane treatment and the duties of occupying powers are just some
of the issues currently being discussed at both international
conferences and dinner tables. The bright spotlight directed at
international humanitarian law (the preferred designation for the
laws of war) is welcome news for those who care about the
protection of persons affected by armed conflict. However, there is
also a risk of interpretations that do not take into account the
delicate balance between state security and individual rights that
underlies this body of rules.
Outlined below are three examples:
1. The existence of a global "war on terrorism".
While the term "war on terrorism" is so much a part of daily
parlance that one hardly gives it a second thought, it must be
asked whether this "war" is an armed conflict in the legal sense.
The short answer is no. Only certain aspects of the "war on
terrorism" are, in fact, war. Under the 1949 Geneva Conventions
(please note the plural!), international wars are those fought
between states. The 2001 war between the US-led coalition and the
then effective government of Afghanistan, waged as part of the "war
on terrorism", was an example of an international armed
conflict.
Humanitarian law does not envisage an international war between
states and non-state armed groups for the simple reason that states
have never been willing to accord armed groups the privileges
enjoyed by members of regular armies. To say that we are witnessing
a global international war against groups such as Al-Qaeda would
mean that under the laws of war, their followers would be equal in
rights and obligations to members of regular armed forces. It was
clear back in 1949 that no country was prepared to contemplate
exempting non-state fighters from criminal prosecution for lawful
acts of war, which is the crux of prisoner of war (POW) status. The
Geneva Conventions, which grant such status under strictly
specified conditions, are thus neither "outdated" nor "quaint"
(references to statements made by 'torture lawyer' Alberto Gonzales
-- JW); their drafters were fully aware of the political and
practical realities of international armed conflict and crafted the
treaty provisions accordingly.
The "war on terrorism" can also take the form of a
non-international armed conflict, such as the one currently being
waged in parts of Afghanistan between the current Afghan
government, supported by allied states, and different armed groups
including remnants of the Taliban and Al-Qaeda. This conflict is
non-international because it is being carried out with the consent
and support of the Afghan government and does not involve two
opposed states. The ongoing hostilities in Afghanistan are thus
governed by humanitarian law rules applicable to non-international
armed conflicts, found in both treaty and customary humanitarian
law. The same body of rules would apply in other similar
circumstances where a definable non-state group is party to the
armed conflict and where the level of violence has reached that of
an armed conflict.
The critical question that generates the most confusion is whether
the totality of acts of terrorism carried out in various parts of
the world (outside of situations of armed conflict such as
Afghanistan) constitute one and the same armed conflict in the
legal sense. Can it be said that the recent school massacre in
Beslan, the conflict in Israel/Palestine, and the bombings in Bali,
Turkey or Madrid, can be attributed to one and the same party? Can
it, in addition, be claimed that the level of violence involved in
each of those places has reached that of armed conflict? On both
counts, it would appear not. The Spanish authorities did not, for
example, apply conduct-of-hostilities rules to deal with the Madrid
train bombing suspects. Those rules would have allowed them to
factor possible incidental civilian deaths ("collateral damage")
into their calculation of how to deal with the suspects. Instead,
they applied the rules of law enforcement. They attempted to
capture the suspects for later trial, and took care to evacuate
nearby buildings in order to avoid all injury to persons living in
the vicinity.
In sum, each situation of organized armed violence must be examined
in the specific context in which it takes place and be legally
qualified either as war or not, depending on the factual
circumstances. A global "war on terrorism" might be a useful
rhetorical device, but it does not reflect the reality or the
variety of responses to terrorist acts on the ground. The laws of
war were tailored for war. It serves neither the aims of state
security nor of individual protection to extend them to situations
short of armed conflict.
2. "Unlawful combatants" have minimal (or no) rights.
The launching of the global "war on terrorism" also launched the
term "unlawful combatant" into the public discourse, raising much
controversy about the rights of such persons. To begin with,
combatant status exists only in international armed conflict, and
humanitarian law treaties contain no explicit reference to
"unlawful combatants". This designation is shorthand for persons
who directly participate in hostilities without being members of
the regular armed forces, which, events have proven, often happens
in both international and non-international armed conflicts.
Contrary to some assertions, international humanitarian law does
provide for measures that can lawfully be taken with regard to
"unlawful combatants".
"Unlawful combatants" may be attacked during the time that they are
directly participating in hostilities. If captured, they may be
criminally prosecuted under domestic law for the act of taking up
arms, even if they have fought according to the laws of war. They
may also be detained for security reasons until the end of active
hostilities, unless released earlier. In specific circumstances and
within certain bounds, they may even be denied some of the
privileges of the Fourth Geneva Convention.
Under humanitarian law, no one who has been detained, including an
"unlawful combatant," may in any way be subjected to acts
prohibited by the Conventions, such as murder, violence to life and
person, torture or inhumane treatment, or outrages upon personal
dignity; nor may they be denied the right to a fair trial. In this
sense, "Unlawful combatants" are fully protected by humanitarian
law. It is simply misleading to suggest that they have minimal or
no rights. One of the purposes of the laws of war is to protect the
life, health and dignity of all persons affected by armed conflict.
It is inconceivable that calling someone an "unlawful combatant"
should suffice to deprive him or her of rights guaranteed to every
individual.
3. Different rules of interrogation for different detainees.
Regardless of whether they are POWs or civilians (including
"unlawful combatants"), there is only one set of rules for the
interrogation of persons detained in an international armed
conflict. The Third Geneva Convention does provide that POWs cannot
be coerced to answer questions beyond giving their name, rank, date
of birth and service number. This was done primarily in order to
prevent the detaining power from eliciting information on ongoing
military operations from POWs right after capture. There is,
however, nothing in the Convention that would for, example,
prohibit the interrogation of a POW suspected of war crimes.
The key issue is therefore not, "Can a detainee be interrogated?"
but, rather, what means may be used in the process. Neither a POW
nor any other person protected by humanitarian law can be subjected
-- it bears repeating -- to any form of violence, torture, inhumane
treatment or outrages upon personal dignity. These acts, and
others, are strictly prohibited by international law, including
humanitarian law. Under the laws of war, it is the detaining
authority that bears full responsibility for ensuring that no
interrogation method crosses the line.
The Crimes of War Project will continue to publish articles about
the legal status of the U.S. military campaign against al-Qaeda and
other terrorist groups. We welcome responses or submissions from
our readers - please send them to the editor at
anthony@crimesofwar.org.
Related Chapters from the Book:
Combatant Status:
http://www.crimesofwar.org/thebook/combatant-status.html
Prisoner of War Camps:
http://www.crimesofwar.org/thebook/prisoner-war-camps.html
'Terrorism':
http://www.crimesofwar.org/thebook/terrorism.html
Related Links:
International Committee of the Red Cross:
http://www.icrc.org
03/09/2005
U. S. Quits Pact Used in Capital Cases : Foes of Death Penalty
Cite Access to Envoys
By Charles Lane
© 2005 The Washington Post Company
http://www.washingtonpost.com/wp-dyn/articles/A21981-2005Mar9.html
The Bush administration has decided to pull out of an
international agreement that opponents of the death penalty have
used to fight the sentences of foreigners on death row in the
United States, officials said yesterday.
In a two-paragraph letter dated March 7, Secretary of State
Condoleezza Rice informed U.N. Secretary General Kofi Annan that
the United States "hereby withdraws" from the Optional Protocol to
the Vienna Convention on Consular Relations. The United States
proposed the protocol in 1963 and ratified it -- along with the
rest of the Vienna Convention -- in 1969...
03/09/2005
Steady Drop in Black Army Recruits : Data Said to Reflect
Views on Iraq War
By Josh White
Washington Post Staff Writer
Wednesday, March 9, 2005; Page A01
http://www.washingtonpost.com/ac2/wp-dyn/A18461-2005Mar8?language=printer
The percentage of new Army recruits who are black has slipped
dramatically over the past five years, reflecting a lack of support
among African Americans for the wars in Iraq and Afghanistan as
well as an economy that is providing more enticing options at home,
according to Army studies, military experts and recruiters.
Since fiscal 2000, when African Americans made up 23.5 percent of
Army recruits, their numbers have fallen steadily to less than 14
percent in this fiscal year, officials said. A similar trend has
reduced the number of female Army recruits, who have dropped from
22 percent in 2000 to about 17 percent of this year's new
soldiers...
03/09/2005
City College Student Counter-Recruiters Charged with Felony
Assault
Wednesday, March 9, 2005
Counter Recruitment Watch
Projects from Peace No War Network
http://www.PeaceNoWar.net
e-mail: wrigleyfield@nyu.edu
Press Conference:
Thursday, March 10th, 2005
4pm
100 Centre Street
New York, NY
Contacts:
Activist: Meredith Kolodner (917) 881-3896
Lawyers: Sean Maher, Darlene Jorif (212) 876-5500
WHO: City College Counter-Recruiters: Hadas Thier, Nicholas
Bergreen, Justino Rodriguez (pending their release) and their
supporters: representatives from civil liberties organizations,
national anti-war organizations, student anti-war organizations,
veterans and military family members, and the legal community
Three undergraduate students at the City College of New York (CCNY)
were arrested Wednesday in the course of a peaceful protest against
military recruiters. Hadas Thier, Nick Bergreen, and
Justino Rodriguez, along with approximately a dozen other
protesters attended a job fair organized by the college, and stood
up in front of a National Guard recruitment table chanting anti-war
slogans. Private security and campus peace officers immediately
surrounded the protesters, pushed them into an empty hallway
outside of the job fair, closed the hall door and assaulted two
protesters and arrested a third who was taking pictures. The two
students who were assaulted are now being charged with felony
assault, and the third with obstruction of a government
administrator.
Military Responding to Counter-Recruitment's Successes
"Counter-recruitment" has become a national issue (USA Today
"Counter-recruiters shadowing the military" 3/7/5), and it's
working. Between these efforts, and general disagreement about the
war, recruitment is down -- according to a 3/6/5 Reuters report,
"The regular Army is 6 percent behind its year-to-date recruiting
target, the Reserve is 10 percent behind, and the Guard is 26
percent short."
After similar counter-recruitment efforts have taken off from New
York to Seattle, the military has clearly become concerned. At
William Patterson University in New Jersey, an activist was
arrested for simply handing out counter-recruitment leaflets. Twice
last semester, CCNY student protesters drove military recruiters
off the campus with peaceful protests. This time campus security
was ready. "We didn't even get through one round of chanting,"
according to Tiffany Paul, a junior at CCNY and a member of the
Campus Anti-War Network, who was one of the protesters. "We were
completely peaceful, it was the officers who were violent."
Unnecessary Brutality
When Mr. Rodriguez was being arrested, his head was slammed into
the wall. He called out "look what they're doing to me!" According
to Ms. Paul, to silence him one of the guards pulled Mr.
Rodriguez's hood over his head and slammed his head into the wall
again.
"He just stood on the guy," remembers Mark Turner, a staff member
at CCNY, recalling the manner in which Mr. Bergreen was subdued by
a private security guard, Mr. Robertson. "His foot was on his back,
after he had tackled him. Private security are not supposed to
touch us."
Ms. Thier was arrested simply for taking pictures. Several
witnesses recall that the guards were pulling on her hair. Juan
Alduey remembers that the guards pushed Ms. Thier when she tried to
give a statement to students who began filming the event. "I'm
being arrested for exercising my right to free speech" Mr. Alduey
recalled.
Useful Links:
February 2005 Peace Zine
ttp://www.peacenowar.net/PeaceZine/Feb05.pdf
he Monthly Newsletter from Peace No war Network
Special Counter Recruitment Issue
Photos of U.S. Military Torture in Abu Ghraib Prison:
http://www.peacenowar.net/Iraq/News/April%2004-Photos/Abu%20Ghraib.htm
Los Angeles Times has a complete biographical Information on U.S.
Soldiers Killed:
http://hosted.ap.org/dynamic/external/fmmac2.mm.ap.org/war2/adv_search.php?SITE=CALOS&SECTION=MIDEAST
Peace, No War
War is not the answer, for only love can conquer hate
Not in our Name! And another world is possible!
Tel: (213)403-0131
Information for antiwar movements, news across the World, please
visit:
http://www.PeaceNoWar.net
Please Join PeaceNoWar Listserv, send e-mail to:
peacenowar-subscribe@lists.riseup.net
http://www.actionla.org/Iraq/IraqReport/intro.html
03/09/2005
Africa Integral to U.S. European Command, General Says
By Jim Garamone
American Forces Press Service
WASHINGTON, March 9, 2005 - Maybe his command shouldn't be called
U.S. European Command, but rather U.S. European and African
Command, Marine Gen. James L. Jones said in an interview here March
8.
Jones, who is the commander of U.S. European Command and is NATO's
supreme allied Europe, suggested that given the importance of
Africa, the command may have to amend its name in the future.
"Africa is an important part of our theater, and has been neglected
for too long," Jones said. "Africa is everybody's problem and
everybody's responsibility."
Jones said Africa "will figure in our national interests in the
foreseeable future." And it is a continent beset by problems
ranging from an HIV/AIDS epidemic, to charges of genocide in
Sudan's Darfur, tribal fighting in Congo, Rwanda and Burundi and
vast areas - especially in the Sahel region, south of the Sahara
desert - under no effective governmental controls.
The United States and its allies must engage Africa and help the
nations of the continent rise out of the mess the region finds
itself in, Jones said. "We're trying to become more proactive and
less reactive," he said. "By proactive, I mean help the Africans
help themselves."
European Command must help struggling democracies in Africa develop
their armed forces to protect their borders. This is important,
because fundamentalists want to recruit in Africa. These fanatics
go to areas where there is not much hope and economic prospects are
dismal, Jones said.
"We need to do things to offset that," he said. "We need to help
our African friends and allies not only develop from a security
standpoint, but also develop from an economic standpoint. It should
never be about exploitation. It should be about partnerships and
cooperation and it should have a consistency to the relationship,
not just the question of being reactive." ...
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