The Common Plan to Violate the Geneva Conventions

[jgruber]

JURIST Guest Columnist and international law scholar Jordan Paust says that recently-divulged memos from the White House and the Justice Department provide evidence of an illegal, unconstitutional and downright inept US plan to violate the Geneva Conventions on the protection of prisoners.


http://jurist.law.pitt.edu/forum/paust2.php

[Phillip79]

JURIST Guest Columnist and international law scholar Jordan Paust says that recently-divulged memos from the White House and the Justice Department provide evidence of an illegal, unconstitutional and downright inept US plan to violate the Geneva Conventions on the protection of prisoners.

I've heard quite a number of legal scholars claim that the Geneva Convention is not applicable to the capture/detainment of terrorists. 

Just out of curiosity:  How many of you have actually read the GPW?  I myself have not, so I haven't formed an opinion as to this legal question.  I think a review of the GPW in general would be a worthwhile legal/political debate for our government to engage in. 

Generally, I don't regard any treaty written 50+ years ago as the foreign-policy equivalent of the Holy Bible.  A society should not be automatically bound by the decisions of past generations, without periodically reviewing and affirming those decisions.  Does the GPW need to be updated to reflect the current War against Terrorism?  I don't know.  But it's a worthy question to consider. 

[Ginatio]

you could easily make the point that the iraq detainees aren't terrorists as much as they are insurgents fighting the u.s. occupation. given that there was officially a war, these detainees are officially prisoners of war, and should be afforded the basics as outlined in the geneva convention. outdated or not, if we expect to garner any support from anyone, we have to abide by our own treaties

JURIST Guest Columnist and international law scholar Jordan Paust says that recently-divulged memos from the White House and the Justice Department provide evidence of an illegal, unconstitutional and downright inept US plan to violate the Geneva Conventions on the protection of prisoners.

I've heard quite a number of legal scholars claim that the Geneva Convention is not applicable to the capture/detainment of terrorists. 

Just out of curiosity:  How many of you have actually read the GPW?  I myself have not, so I haven't formed an opinion as to this legal question.  I think a review of the GPW in general would be a worthwhile legal/political debate for our government to engage in. 

Generally, I don't regard any treaty written 50+ years ago as the foreign-policy equivalent of the Holy Bible.  A society should not be automatically bound by the decisions of past generations, without periodically reviewing and affirming those decisions.  Does the GPW need to be updated to reflect the current War against Terrorism?  I don't know.  But it's a worthy question to consider. 

[jgruber]

  Does the GPW need to be updated to reflect the current War against Terrorism?  I don't know.  But it's a worthy question to consider. 

only if you can clearly define terrorist.  Hell, Sam Adams and George Washington could have been classified as terrorists.

[jgruber]

Generally, I don't regard any treaty written 50+ years ago as the foreign-policy equivalent of the Holy Bible.  A society should not be automatically bound by the decisions of past generations, without periodically reviewing and affirming those decisions. 

Are you suggesting that agreements between nations have to be revalidated by each generation?

[Phillip79]

you could easily make the point that the iraq detainees aren't terrorists as much as they are insurgents fighting the u.s. occupation. given that there was officially a war, these detainees are officially prisoners of war

Actually, this point isn't clear either.  Many people have argued that the Congressional resolution authorizing military action in Iraq does not amount to a "Declaration of War."  (I happen to disagree with this, by the way.  The Constitution doesn't spell out what constitutes a Declaration of War, and if you read the Congressional resolutions, they sure sound like a Declaration of War to me). 

If we take the position that Iraq is an officially-declared war, then the Geneva convention would apply to the enemies with which we have declared war:  Namely, Saddam Hussein and all soldiers formerly under his command, but it probably does not to Al Qaeda and other "enemy combatants" who are not wearing military uniforms.  If Iraq is NOT regarded as an officially-declared war, then you have a cloudy situation.  I don't think the Geneva Convention is applicable to any and all military actions. 

[Phillip79]

Are you suggesting that agreements between nations have to be revalidated by each generation?

Yes, I think it makes sense to do so.  Thomas Jefferson once suggested that the Constitution should be re-written every 20 years.  I don't think we should go that far - our Constitution has held up quite well against the test of time. 

But I don't think that a society should be automatically and permanently bound to the decisions made by past generations.  Common sense dictates that this is not fair.  If we are to have a government "of the people," it must be of the LIVING people. 

It's quite common for Congress to include sunset provisions within laws, requiring them to be renewed every so often (The Patriot Act is just one example).  I'm merely suggesting that the same thing be done with treaties.  They should be reviewed after a pre-determined amount of time, and either reaffirmed, amended, or simply allowed to expire.  Treaties are simply an agreement between two or more nations, at a given period in time. 

Would this affect our credibility?  No, not so long as we honor our treaties for a pre-determined time period - say 10-20 years or so.  After that point, it is perfectly reasonable and honorable for the next generation to review the commitments made by past generations. 

[bobfett33]

But what you're suggesting is more of what ought to happen as an internal mechanism of US politics - the important issue here is that regardless of how often we hold national referendums on the electorate's opinions of various treaties and agreements, we need to abide by those agreements while they are legally considered "the law of the land," which they are the moment they are both signed and ratified.

On another note, from whence did this notion come that the general population should be deciding on matters of foreign policy, i.e. treaties?  The idea of government by the best & brightest scares me as much as it does anyone else (particularly because it's so painfully clear that we LACK this right now).  But, the general public surely has neither the sophistication nor the expertise nor the time necessary to learn about the multitutde of treaties of which the U.S. is a signatory.  And, even when they DO have opinions, they are commonly over-ruled by a zealous executive branch.  Most Americans support both the Kyoto Protocol and the Anti-Ballistic Missile Treaty, and Bush II gave both of those the boot.

This segues directly into why exactly the Constitution has stood the test of time - not necessarily because it sets out the world's closest-to-perfect system of government, but because the vast, VAST majority of people are embarassingly apolitical - apathetic and ignorant, even.  A robust and thriving democracy isn't possible in the face of such a populus... most of them don't even vote, let alone have much to say about foreign policy treaty decisions or Constitutional restructuring.

[jgruber]

Would this affect our credibility?  No, not so long as we honor our treaties for a pre-determined time period - say 10-20 years or so.  After that point, it is perfectly reasonable and honorable for the next generation to review the commitments made by past generations. 

Since we as a nation have already committed to these treaties -- without a time limit -- can we now say -- with credibility -- that we do not feel bound by past generations?  And would it not allow all other nations to do that same?  It sounds like you want to be able to pick and choose what you will be bound by regardless of past commitments.  Sounds like a formula for chaos.

[Jeremy]

There is not technical "war" in Iraq or anywhere with the US for that matter. Congress is the only one that can declare war and they have not done so.

The Geneva Convention should be amended to include terrorists.  Even constitutions have amendments, so are we to say that the Geneva Convention is all powerful and immune to change?