I understand the point about smart weapons it does not change the fact that the US is doing targeted killing without trial or are still keep people in guantanamo and so many other things that we are fine with.
Yet somehow the rhetorics of Trump trumps all that.
Well Trump openly claimed he wanted to torture terrorist suspects and kill terrorists' families. So yeah, I think that's worse than targeted drone strikes on terrorists. While I have significant concerns about the drone program, I also recognize that we are at war with certain groups and capturing these people in order to get them to trial is mostly infeasible. I don't consider drone strikes to be worse than special forces strikes. I do consider torture and murdering families to be considerably worse.
Please explain this, I really don't understand this argument:
>> I find Guantanamo morally indefensible.
Guantanamo -- afaik, you can keep enemy combatants in prison until after the war. E.g. the conflict in Afghanistan is still active. So what is the problem?
(Then we have the whole point about the people at Guantanamo being combatants that didn't follow the war of laws. Do they have any rights, at all? Please use very good primary sources if you somehow argue that combatants that targets civilians have more rights than prisoners of war... That is contradicting the idea of those laws.)
The fundamental problem is that we are not at war with any nation here. We have repeatedly stated that we are at war with terrorism. So we've got a bunch of citizens of foreign nations that we took captive on the suspicion that they were engaged in terrorist activity, but we can't prove it. They aren't really prisoners of war, and there is no war at the end of which we can reasonably expect an exchange of prisoners. They're stuck in indefinite limbo with no trial and no expectation of release.
I don't know how we can defend indefinite detention of people on the suspicion that they might have engaged in terrorist activity. It's basically just kidnapping to hold them this way forever. I think there's a legitimate argument that taking them captive to interrogate them is reasonable, and perhaps even some moderate time of detention. Giving them a trial would also be reasonable. I don't think there's a legitimate argument for holding foreign nationals without trial indefinitely.
Your whole position is based on a claim that there must exist a nation state to have a "war".
You also claim that the laws of war are not applicable to the remaining types of military conflicts (with clans/tribes, any organization that is geographically spread, etc, etc).
Do you have references? [Edit: The references need to show that the laws of war don't apply to these other conflicts, too.] Also not that the world's law experts don't seem to agree [Edit: with you. See link in edit at bottom.]
(Note that by your definition we need a new word for civil wars -- at least one side is not a nation state. We also need a new word for most of the military conflicts through history -- and today. And so on.)
(Also, you shouldn't argue against what politicians say in public speeches, for the same reason you shouldn't believe advertisements...)
The Taliban had a government, they were a nation. So it qualify as a "war", even according to your definition.
The Taliban and their allies are still fighting.
Are you claiming that conflict stopped being a war when they lost the capital? Please give good references...
[Edit: Here seems to be the relevant definitions in USA, I saw in another place that their High Court argued that the Geneva conventions was relevant under US law also for unlawful combatants: https://en.wikipedia.org/wiki/Military_Commissions_Act_of_20... ]
Just to provide a reference for what you say: to have a "war", one does not need a nation state. And the Geneva conventions on laws of war do apply to armies and militias regardless of whether they are of a recognized nation state. The conventions apply in civil wars, too.
The Daish (IS) fighters are in gross breach of laws of war even though no one recognizes their "state".
The collection of the Geneva conventions is available in many places, here is the site of IRCR:
There used to be a nice, simple presentation of the laws of war at http://avalon.law.yale.edu/ but now you get 500 Internal Server Error for the archives.
However, to be "at war with terrorism" is unfortunately a very difficult position. Definition of terrorism if by necessity quite vague and problematic. (What is "freedom fighter" for one party or at one time may be a "terrorist" for another or at another time).
-- Edit: I see you sourced the ICRC site for conventions yourself.
> Your whole position is based on a claim that there must exist a nation state to have a "war".
No, my position is based on the fact that our treaties on the treatment of prisoners of war apply to nation states. Certainly we can be at war with a non-state actor (we clearly are). But our treaties around prisoners of war are not directly applicable, as the past administrations have made clear.
For wars not against nation states, there must still be some sort of due process for prisoners. The idea that being at war with some entity gives us the right to retain arbitrary people indefinitely, without even proving that they have participated in that entity, is morally unacceptable.
> Do you have references? The world's law experts don't seem to agree...
Do you have an references to the claim that law experts don't agree? There are a few treaties about war prisoners but they apply to signatories, which clans etc are not.
Beyond that, "laws of war" have historically been defined by the victors. I'm not aware of a body of law that applies to wars universally, nor do I believe one could exist. (Who could enforce it?)
> that by your definition we need a new word for civil wars -- at least one side is not a nation state.
You could argue that for civil wars at least both sides would effectively be signatories if the nation as a whole was a signatory before the war began.
> You also claim that the Taliban never was a government? They had control of a large part of Afghanistan. And they are still fighting, along with their allies. I assume you don't argue that a war stops being a war when one side lose control of their capital?
I don't claim any of that. I claim that Afghanistan is at least officially no longer ruled by the Taliban. We don't recognize them as the legitimate government. If we accept that we are no longer at war with Afghanistan then we must according to the Geneva conventions release any prisoners of war captured during the war with Afghanistan.
Any enemy combatants not deemed prisoners of war should be given some sort of due process. Again, the idea that being at war against terrorism gives us the right to indefinitely detain arbitrary people is morally unacceptable.
> You ignored my argument.
> Again: Afaik, you can keep combatants prisoner until after the hostilities. Which are still continuing. [Edit: This seems to be the relevant part in the Geneva Conventions -- https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xs.... ]
> The Taliban had a government, they were a nation. So it qualify as a "war", even according to your definition.
> The Taliban and their allies are still fighting.
> Are you claiming that conflict stopped being a war when they lost the capital? Please give good references...
I don't see that I made any of those claims, nor do I feel like I ignored your argument. I don't believe that being a signatory on the Geneva convention in any way gives us a right to indefinitely detain people with no reasonable path to release and no proof of involvement in the conflict. Even if legally we can make that argument, I think it's morally repugnant.
>> No, my position is based on the fact that our treaties on the treatment of prisoners of war apply to nation states. [...] our treaties around prisoners of war are not directly applicable, as the past administrations have made clear.
(I asked for references to support that claim already -- got nothing from dpark...)
What your position is based on, according to yourself, is wrong. I added this link around ten minutes before you posted that:
It address exactly those unlawful combatants and laws.
It was drafted as a result of a decision by the US the Supreme Court. (As I noted, another Supreme Court decision was that the Geneva Convention do cover unlawful combatants.)
(I also added a link to the Geneva Protocols, discussing when a POW can be sent home.)
> I asked for references to support that claim already -- got nothing from dpark...
Where in the Geneva conventions does it say that they apply to all warring parties? I'm genuinely asking. My understanding is that they apply to signatories only:
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.
So, it applies to conflicts between signatories or conflicts involving a signatory and a non-signatory who accepts the terms of the convention. So you're right that it's not strictly nation states. But it's also not every combat participant by my reading.
> What your position is based on, according to yourself, is wrong. I added this link around ten minutes before you posted that:
> It address exactly those unlawful combatants and laws.*
This is not a treaty. Also, the problem with retaining people indefinitely doesn't go away because we pass a law declaring that we can call them combatants. We know that we have detained innocent people in Guantanamo for extended periods of time. You can legally call them whatever you want, but it's still morally repugnant to hold innocent people indefinitely. (It is morally repugnant to hold anyone indefinitely without trial because it indicates an unwillingness or inability to establish guilt.)
The Geneva Conventions do not recognize any lawful status for combatants in conflicts not involving two or more nation states. A state in such a conflict is legally bound only to observe Article 3 of the Geneva Conventions and may ignore all the other Articles. But each one of them is completely free to apply all or part of the remaining Articles of the Convention.[6]
Since you have no foot to stand on -- bye.
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(A note that doesn't matter for my argument: Out of interest you might want to read this and the "See also" for the page, especially the "No longer enemy combatant" link: https://en.wikipedia.org/wiki/Unlawful_combatant#Internation... The US Supreme Court seems to agree that unlawful combatants should get protection by the Geneva Conventions -- but this doesn't matter for my argument anyway.)
Generally referring to the "Geneva conventions" is not a useful citation. There are hundreds of articles in the conventions. Can you point out where the conventions purport to apply to all combatants?
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.
By my reading, this applies to conflicts between signatories or conflicts involving a signatory and a non-signatory who accepts the terms of the convention. So not strictly nation states, but also not every party to every conflict.
For instance, break it anywhere in the world by killing civilians, and enter my country (say, as a refugee), and you'll be prosecuted if caught. There's even a recent example (a man got life sentence for what he did in Rwandan conflict; the life sentence here is practically something like 12 years).
Interesting. I didn't realize the UN Security Council had passed such a resolution. Thanks.
I'm still not clear that this applies since our enemies do not meet the requirements outlined beyond being signatories (what with insignia and organized ranks etc). Article 3 also refers to conflicts not of an international nature. I'm not sure how that's interpreted. Is that civil wars? Or just wars involving non-state actors? The "war on terror" certainly has an international character.
Unlawful combatants don't have access to the rights under war laws, except Article 3 of the Geneva Conventions (see quote below).
Hence, the question is not if you treat them as POWs or as civilians -- but if they have the protection of a POW at all.
-----
[This was my reference for the previous claims. The Wikipedia link go to the Convention. I earlier referenced the relevant US law and their Supreme Court, which also discuss this.]
The Geneva Conventions do not recognize any lawful status for combatants in conflicts not involving two or more nation states. A state in such a conflict is legally bound only to observe Article 3 of the Geneva Conventions and may ignore all the other Articles. But each one of them is completely free to apply all or part of the remaining Articles of the Convention.[6]
> You knew that 3 hours earlier, when I wrote this
First, no. You asserted it repeatedly without a compelling reference. Ptaipale provided a verifiable claim about the UN Security Council affirming that this had become international law. You linked to an article that happened to make a similar claim but had no reference to the UN Security Council decision (nor does the citation it references so far as I can see).
Second, I admitted a gap in my knowledge and your response was to come in and assert that you told me the same earlier (which you actually didn't). If the point of your arguing was to educate, this is a really poor technique. Don't respond to someone acknowledging a mistake/misunderstanding/knowlege gap by trying to make it about how "right" you are. It comes off as petty.
If a Wikipedia link with multiple good sources already in the introduction isn't enough for someone without a clue on a subject, I should have left the discussion.
My personal heuristic to avoid grief in the future: Don't discuss with anyone that dismiss Wikipedia without references... no, without having primary sources for references.
Thank you for that. The net and HN will be better for me.
Your wikipedia link doesn't cover the UN resolution, nor does the citation, which appears to be ICRC's commentary of the treaty. The article you linked does assert it, but without any significant support aside from the ICRC's commentary.
"Then we have the whole point about the people at Guantanamo being combatants that didn't follow the war of laws."
The problem is we know now many of the people at Guantanamo do not fit that description. And we don't know how many do and how many don't, because there is no legal process to make the determination.
After WWII, at least there was some kind of war crimes tribunal before executing people for war crimes. But Guantanamo is some kind of horrific, Kafka-esque limbo, where people can be sent for being in the wrong place at the wrong time or accused by someone just wanting to collect a bounty, where people can be held forever and tortured on a whim, with no prospect for any kind of closure, ever.
Please discuss it with the law professors in the Supreme Court, they claim that the US handling also of unlawful combatants must follow the Geneva Conventions.
> You ignored the main point on what you comment on. To quote myself: afaik, you can keep enemy combatants in prison until after the war
We have detained people that we know are not and were not enemy combatants. Your assertion that we can detain enemy combatants is not without merit. The foundation of that claim is unsound, though, because we know we are detaining people who are not enemy combatants.
(If you want to accuse someone of breaking war laws, go to ICC in Hague...)
I think you're trolling me by now. You have no foot to stand on. (I'm not arguing that the US handling of POWs can't be criticized. Of course. All states can be criticized. But their Supreme Court system do seems to work.)
I'm not comfortable with asserting that the people sitting in Gitmo are all combatants since we know that we've gotten that determination wrong multiple times and we're not giving them trials. The blind assertion that they are enemy combatants rings hollow.
Even if we are legally right to run Gitmo the way we do, I think it is still morally wrong. You can call that trolling if you want, but locking people up indefinitely with no proof of criminal or even combat activity and no path to resolution is immoral.
Condemn Guantanamo from a moral viewpoint if you want.
(Note that all POW camps will certainly have innocents, so the same moral apply to the whole Geneva Convention.)
But stop arguing against legal facts when you don't have a clue... Don't trust the media to inform you.
----
(I'm not doing the moral argument, but: Do note that if the Geneva conventions was too mild, there will be fewer POWs taken... instead lots of more people will die before capture. E.g. Iraq handles captured terrorists by execution a lot, because they know people will get back out and kill again, by bribing themselves out of prisons etc.)
Others started to claim weird illegal content in US law, until me and 'ptaipale' dug up the relevant Geneva conventions and decisions by the US Supreme Court based on them.
(But sure, a relevant answer to me might have been "I don't care about the law or if my way gets more people killed or not -- this is my personal moral and I'm ready to let lots of others suffer and die for it.")
> 1. That Guantanamo discussion was a continuation of the content came right before.
Yes, and what came before was a discussion of the morality of drone strikes. There was never a discussion of the legality of anything except maybe Trump's claimed sexual conquests.
> 2. I started to argue that everything was legal re Guantanamo, as a reply to the moral claim.
So paddyoloughlin is 100% right and "You were the one, in that very post, who started confusing morality with law, leading to the jumble of responses since."
Discussing a person is what follows after you're shown to be wrong. :-)
Never mind. I have stopped discussing with people that dismiss Wikipedia pages with good sources -- when they have neither references nor understanding of a subject.
> Condemn Guantanamo from a moral viewpoint if you want.
That's what I did from the very beginning. And repeatedly throughout this discussion.
> (Note that all POW camps will certainly have innocents, so the same moral apply to the whole Geneva Convention.)
No, my moral problem is that there's no clear path to resolution for Guantanamo detainees, not just that some are innocent. I feel like I made that clear in my first response to you about Guantanamo. https://news.ycombinator.com/item?id=12736359
> But stop arguing against legal facts when you don't have a clue... Don't trust the media to inform you.
"Don't have a clue" is rather unfair since I provided citations into the text of the Geneva conventions to support my understanding. You on the other hand have been flip-flopping between different interpretations, claiming first the relevance of article 118 and later stating that only article 3 protections are provided. I don't think you're as well informed as you'd like to be perceived.
I also don't think "the media" has any relevance here.
You just repeated your position and ignored what I wrote. I will assume that means you have no serious arguments.
If you really don't understand: A serious argument would be showing that it is not a war situation -- or that you have to put enemy combatants into a court before you can shoot at them.
(Edit: To argue that it is wrong or illegal to declare war and hunt e.g. alQ is not relevant either. I made that distinction in the previous comment -- and didn't take a position.)
So, give references to international law about what exactly qualify as a war -- and what does not?
Because obviously, the top law specialists don't agree with you -- presidents aren't above the law.
Edit: Here is the US law about unlawful combatants: https://en.wikipedia.org/wiki/Military_Commissions_Act_of_20... It came after a decision from the US Supreme Court. (Another Supreme Court decision says the unlawful combatants are protected by the Geneva protocols.)
Edit 2: I asked for references and got nothing in the answer below. Enough for me.
Yet somehow the rhetorics of Trump trumps all that.