The Supreme Court of the United States has ruled against a military tribunal for the captured Yemeni Salim Ahmed Hamden, a chauffeur for Osama bin Laden, while in Afghanistan by US Forces. Transferred to Guantanamo, Hamdan challenged the authority of a tribunal to decide if he was or was not an unarmed combatant and should be held for military tribunal. To this is the following citation of the Geneva Conventions, looking at them at the genevaconventions.org website [italics mine]:
Customary LawsNow Common Articles also get mentioned, specifically 2 and 3 by the Court, so here they are [italics mine]:
The following are rules applicable in all conflicts, regardless of whether the countries in question are signatories of the Geneva Conventions and regardless of whether the warring party in question is recognized as an independent state. Warring parties must obey the rules spelled out in the common article 3 of the Geneva Conventions, which requires that prisoners of war and wounded combatants be protected from murder; discrimination based on race, religion, sex, and similar criteria; mutilation, cruel treatment and torture; humiliating and degrading treatment; and sentencing or execution without a fair trial.
In addition, the following are forbidden towards any persons in an area of armed conflict:
- Torture, mutilation, rape, slavery and arbitrary killing
- Crimes against humanity which include: forced disappearance and deprivation of humanitarian aid
- War crimes which include: apartheid, biological experiments, hostage taking, attacks on cultural objects, and depriving people of the right to a fair trial.
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.Fascinating stuff! So here is how it goes... al Qaeda is a not a recognized independent State nor is it an 'armed force' of any State or non recognized State. In point of fact al Qaeda is no State at all, but a group of individuals using terror across multiple States to gain their ends. And they categorically REJECT the Geneva Conventions.
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.
Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavorour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Although the Supreme Court finds the non-State recognition persuasive, it presumes that this non-recognized independent organization is a State. The Geneva Conventions, as later noted, are amongst States and non-recognized independent States. In other words, these folks have got to have land under their control and a system of rules of conduct to fall anywhere close to the State based categorization system. All of the Geneva Conventions were drafted with State-based conflicts in mind and with groups, such as guerilla organizations declaring a State but having no international recognition of same, as covering these things. To include entities who are actively AVOIDING becoming a State so as to refuse any State based obligation is to give them much higher recognition than is allowed by the System of Nation States and Treaty obligations. The Taliban, by raising a flag and declaring a State DO fall under this, but al Qaeda and all other Transnational Terrorist organizations do not. Without a State al Qaeda can not even become a Contracting Party to the Conventions.
Further in Article 2, which enjoins that if only one Party to a conflict is a signatory that it shall be bound by these conventions, it does not address the fact that the other side may not be considered a 'party' because it lacks not only recognition but the ability to Contract and BE a party to ANYTHING. al Qaeda scoffs at all laws and treaties between Nations and does not believe in the Nation State, save as a necessary and temporary tool to its global goals. By reasoning that al Qaeda has State based legitimacy to become a Contracting Party is to flout all diplomacy that has been built up over the past 150 years or so.
So Article 2 is uncompelling to my eyes in that area.
The Supreme Court, however, in ruling this way has now ruled that al Qaeda is the equivalent of a non-recognized State. Perhaps we can send diplomats to them, now?
On Article 3 plus 2, note the conflict taking place on the soil of a Contracting Party. The Taliban wasn't and so Afghanistan is not such a place. Now, here is what the Supreme Court has to say on this [bolding mine]:
"4 (c) (ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum, "certain provisions protecting" [p]ersons "placed hors de combat by" detention, "including a prohibition on" the passing of sentences " without previous judgment " by a regularly constituted court affording all the judicial guarantees " recognized as indispensable by civilized peoples." The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a "conflict not of an international character." That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory "accepts and applies" those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict "in the territory of" a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68.So, even though this conflict took place in a non-signatory State, that being Afghanistan, the Conventions do apply to those who are and are not signatories. And the Supreme Court asserts that this holds into clashes between signatory and non-signatory Nations, which is correct. al Qaeda may not be a Contracting Party under the basis of the Conventions themselves, however, and so are combatants not only of a non-signatory group but cannot be considered to be able to be a part of any signatory organization. Article 3 clearly covers those individuals who are combatants of outlaw Nations, such as the Taliban, who have direct jurisdictional accountability to their Nation and also combatants that adhere to an unrecognized State. al Qaeda does not qualify for this by its outlay and composition, and so any individuals fighting for al Qaeda are doing so in a status not covered by these Conventions.
(d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72."
The problem is not one of falling on one side of a conflict or another. That is clearly demarcated by the Conventions.
The problem is that al Qaeda falls COMPLETELY outside of this framework. To be inside this framework al Qaeda must have the level of stature granted to non-recognized Nations. To be able to be part of this framework one must be part of an organization that can become a Contracting Party and that is what the Court has done.
There you have it, folks. The Supreme Court of the United States has ruled that al Qaeda shall be afforded all of the benefits of a Nation, even a non-recognized Nation, without having any of the fundamentals to actually *be* a Nation.
And since they have further ruled that al Qaeda combatants are to be considered for Civil Trials and not Military Tribunals, they are now outside the jurisdiction of the Armed Forces for prosecution and all the rules of evidence now apply to the Armed Forces when capturing al Qaeda. I hope they trained our troops in the collecting of battlefield forensics... or we could just shoot them on sight as SPIES, which they are also under the rules of War by wearing no uniform and adhering to no State and mis-representing themselves on the field of combat and elsewhere.
Which court system gets to hear these things? Now here is the part that has NOT been considered. From the Constitution Article III, Section 2 in whole [bolding mine]:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."
Well, it seems that the United States, being a Treaty Signatory and having a beef with individuals who are now of a recognized entity that has the same level as a State should go DIRECTLY to the Supreme Court without any intervening Courts. Why? As there is no original jurisdiction for these cases, starting overseas via the Geneva Conventions and that these individuals have been ruled to be of a State level entity that has no Treaty obligations AT ALL, there is only one set of people in the United States that have, at their fingertips, relevant necessary relevent power as these things have NOT been administered by via Treaty with them.
And that is the Supreme Court of the United States.
Thanks for volunteering! I hope you all get nice travel arrangements to Cuba!
While that last is partly in jest, that is also partly dead serious. The Supremes should get it by the old: "You broke that cookie jar, now you get to sweep up the remains".
The remedy for this is to do what I suggested the President do when he first went before Congress after 9/11:
Ask Congress to declare war on every terrorist organization or other organization that has rhetorically declared war on the US and start that dating back to 1945.
The Supreme Court takes that this is allowable via their ruling.
As they have made this clear, so it should be done.