Feeds:
Posts
Comments

Archive for the ‘War’ Category

Small Talk

Elizabeth
International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgment quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, “There is no intermediate status; nobody in enemy hands can be outside the law,” because in the opinion of the ICRC, “If civilians directly engage in hostilities, they are considered ‘unlawful’ or ‘unprivileged’ combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action”.
“unlawful combatants” cannot be tried by the military and must be tried in a civilian court, apparently.

Robert
is UCMJ not considered a domestic law?

Elizabeth
UCMJ?
ah
google, yay.

Robert
Uniform Code of Military Justice

Elizabeth
nope, applies to all uniformed services, minus the CG, but including NOAA.

Robert
does that statement prevent the military from trying UCs?

Elizabeth
unless the Coast Guard is operating in conjunction with the Navy

Robert
define domestic, please

Elizabeth
one sec

Robert
lets say domestic means civil.

Elizabeth
http://www.law.cornell.edu/uscode/10/usc_sec_10_00000802—-000-.html
POWs, yes. but then that brings it all in a circle.
unless, I guess, they’re part of any treaty we’ve previously signed, such as child soldiers.

Robert
In that case, an UC would be charged under US law with sedition, aiding and abetting the enemy. the proscribed punishment is death.

Elizabeth
convoluted! So, since we signed the Geneva Conventions they’re considered a part of municipal law, in accordance with the Supremacy Clause in the Constitution of the United States. In addition the US Supreme Court validated this premise, in Hamdan v. Rumsfeld, by ruling that Common Article Three of the Geneva Conventions applies to detainees in the War on Terror, and that the Military Tribunals used to try these suspects were in violation of US and international law
*facepalm* I’m so glad I’m not a lawyer

Robert
how is what I said convoluted? I said tried in civil court, you cited a court decision that military trials are not to be used. Apples and oranges
and US law only applies to American citizens and/or soil
hence the problem with trying them to begin with

Elizabeth
no, this whole thing is.
in Boumediene v. Bush, that Guantanamo Bay captives were entitled to access the US justice system. not all of them were captured on US soil.

Robert
that court decision is contrary to us law
why would the laws of the US apply to citizens of foreign nations on foreign soil?

Elizabeth
The Court applied the Insular Cases, by the fact that the United States, by virtue of its complete jurisdiction and control, mantains “de facto” sovereignty over this territory, while Cuba retained ultimate sovereignty over the territory, to hold that the aliens detained as enemy combatants on that territory were entitled to the protection of the writ of habeas corpus
because we control that soil, basically.
as well as it violating US and International law regarding prisoners

Robert
I was not speaking of Gitmo, which is sovereign US soil, I am referring to the foreign soil they were captured on
how so?

Elizabeth
They’re being held on what is basically our soil, and going to be tried by our military, therefor they’re supposed to be given the rights that that situation accords them

Robert
you already stated there is little legal precedence for such great numbers of UCs, so how could it violate laws that dont cover it?

Elizabeth
the status of UC isn’t in accordance with the Geneva Conventions. It’s only a legal status within the Military Commissions Act, which in turn was overruled by the Supreme Court in Boumediene v. Bush. So we must either give them the rights of a POW and try them in a military court, or they are civilians and must be tried in municipal court. they can’t be held as they are.
the Geneva Conventions are considered to be a part of municipal law in accordance with the Supremacy Clause in the Constitution. So, either way we’re supposed to abide by the Geneva Conventions which do not allow for the status of “UC”
by giving the status of UC we’re violating our own Constitution

Robert
how so? just because they do not enumerate them, that doesn’t mean they do not exist. If there is a such thing as a lawful combatant, there must be in turn an unlawful combatant. Spies for example, are the primary precedent

Elizabeth
spies are tried in a municipal court, such as the 1942 Quirin case

Robert
and trying them for sedition, which is something we have not done, is the proper course of action, which I already stated

Elizabeth
which, coincidentally, is the case that started the whole UC thing.
well, I have to go do the dishes.

Robert
I think we agree that the whole thing doesn’t make any goddamn sense

Elizabeth
no, it doesn’t
which is probably why we’re just treating them as POWs now. easier that way.

A bit of my conversation tonight with an old high school classmate. Yes, these are the kinds of debates I thrive on. Though I do have the usual weird and/or mundane types. I’m just much less likely to post them here.

‘Night all.

Advertisements

Read Full Post »