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Thursday, September 07, 2006


Pirates and the Geneva Convention

posted by Aziz P. at Thursday, September 07, 2006 permalink View blog reactions
In response to my previous post about adopting the pirate standard for international terrorists, Dean Esmay raises the point that it might well be used to justify the view that accused pirates or sympathizers have no civil rights and therefore do not enjoy any right to due process or protection under the Geneva Conventions:

But there is a danger to this view of terrorism. My own gut says this is a proposal with much merit, but it amounts to declaring that pirates and terrorists enjoy no civil rights protections to speak of. Anyone declared a pirate or terrorist may be killed on sight or, if captured, hung by the neck until dead, dead, dead by a fairly quick military tribunal--what some might call a "kangaroo court."

Under such a view of terrorism, for example, many of the inhabitants of Guantanamo Bay would simply be dead now, summarily executed after a quick military tribunal.

This is not necessarily correct however. For one thing, the Geneva Convention does define combatants very precisely. The Third Geneva Convention (GCIII) applies specifically only to lawful combatants, who are defined in a precise way in Article 4.

In addition, Article 5 of GCIII also states,

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Which means that if there is doubt about whether a combatant is lawful as defined by Article 4, they must be treated as a lawful combatant until a competent tribunal can determine their status.

The entry in Wikipedia for "unlawful combatant" (whose neutrality is understandably disputed) makes for interesting and relevant reading here.

So first let's understand that the Geneva Conventions are in fact very flexible and do allow for sever treatment, as long as due process is followed. This Conventions represent a great achievement of the modern age and we should look at them in the liberal tradition, ie understand that they help codify our Enlightenment values. In this, they are a source of strength, not weakness - because when followed, they remove any doubt about whether justice has been meted.

Now, adopting the pirate standard (which predates the Geneva Conventions by quite a lot) doesn't automatically imply a repudiation of GCIII. We can adopt the legal frameworks for defining piracy as crime and an international problem, and then use those as our legal justification for capturing pirates. Er, terrorists. Once captured we are obligated to make sure that due process is given and the Conventions can and should be followed accordingly.

The point is that the pirate standard provides a precedent for international cooperation. And a better means of defining just who we are fighting against - a specific class of people defined by their actions, not their beliefs (for example, it would pretty much eviscerate the argument that the war on terror is a war against Islam). Its not a solution, its a tool to facilitate a solution.

Finally, note that the original article does not invoke the pirate standard in the context of civil rights and "kill them upon sight" mentality, but rather discusses the advantages from a much more pragmatic (and completely GCIII-consistent) perspective.

If the war on terror becomes akin to war against the pirates, however, the situation would change. First, the crime of terrorism would be defined and proscribed internationally, and terrorists would be properly understood as enemies of all states. This legal status carries significant advantages, chief among them the possibility of universal jurisdiction. Terrorists, as hostis humani generis, could be captured wherever they were found, by anyone who found them. Pirates are currently the only form of criminals subject to this special jurisdiction.

Second, this definition would deter states from harboring terrorists on the grounds that they are "freedom fighters" by providing an objective distinction in law between legitimate insurgency and outright terrorism. This same objective definition could, conversely, also deter states from cracking down on political dissidents as "terrorists," as both Russia and China have done against their dissidents.

Recall the U.N. definition of piracy as acts of "depredation [committed] for private ends." Just as international piracy is viewed as transcending domestic criminal law, so too must the crime of international terrorism be defined as distinct from domestic homicide or, alternately, revolutionary activities. If a group directs its attacks on military or civilian targets within its own state, it may still fall within domestic criminal law. Yet once it directs those attacks on property or civilians belonging to another state, it exceeds both domestic law and the traditional right of self-determination, and becomes akin to a pirate band.

Third, and perhaps most important, nations that now balk at assisting the United States in the war on terror might have fewer reservations if terrorism were defined as an international crime that could be prosecuted before the International Criminal Court.

If your position regarding International Law is akin to that of the Administration - namely, that it's a joke and toothless, and solely exists as a means to harass the interests of the United States, then the piratical standard proposal is probably not your bag. After all, the "kill em where they be found" standard is already in effect, and the Administration already flouts the GCIII even when they claim otherwise, so if anything the pirate standard is going to be at best unnecessary and at worst invite unwanted international scrutiny.

However if you take the liberal view that international law can (as history has demonstrated time and again) be a useful tool for cooperation and bring to bear the immense resources of nations in a much more focused manner, then the pirate standard is something that should not only be considered, but advocated.




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About Nation-Building

Nation-Building was founded by Aziz Poonawalla in August 2002 under the name Dean Nation. Dean Nation was the very first weblog devoted to a presidential candidate, Howard Dean, and became the vanguard of the Dean netroot phenomenon, raising over $40,000 for the Dean campaign, pioneering the use of Meetup, and enjoying the attention of the campaign itself, with Joe Trippi a regular reader (and sometime commentor). Howard Dean himself even left a comment once. Dean Nation was a group weblog effort and counts among its alumni many of the progressive blogsphere's leading talent including Jerome Armstrong, Matthew Yglesias, and Ezra Klein. After the election in 2004, the blog refocused onto the theme of "purple politics", formally changing its name to Nation-Building in June 2006. The primary focus of the blog is on articulating purple-state policy at home and pragmatic liberal interventionism abroad.