SCOTUS Hamdan decision regarding Article 3

[Trajan Octavian Titus]

OK do you think that the SCOTUS got this decision right when in the majority opinion in the Hamdan V. Rumsfeld case they claimed that terrorist suspects are protected by Article 3 of the Geneva Convention:

It erroneously ruled that the Geneva Conventions do not apply because Art. 3 affords minimal protection to combatants "in the territory of" a signatory;

Here's the full text of article 3:

Article 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 endeavour 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.

Now it doesn't take a law school graduate to realize that Article 3 only applies to civil wars hence in the begining it clearly states that Article 3 only applies to:

"Conflicts not of an international character."

My personel opinion is that this is a gross legal error in interpretation that was intentionally implemented in order to get passed the Judiciaries agenda regardless of what the law actually says.

 

[Diogenes]

The court got it wrong. US courts enforce the Constitution, which is a compact between US citizens and the US government; US courts have no charter or brief to interpret treaties with other nations, and they have no jurisdiction over enemy combatants not held on US soil.

 

[ProudAmerican]

seems simple enough to me.

 

[jfuh]

What a dishonest thread. Perhaps you should familiarize yourself with the Geneva Conventions, firstly note the plurality? That means more then one convention.
Now the convention of applicability here is the 3rd convention.
You cite article 3 which is applicable here, but as a signatory of the convention here's what article 4 states

Article 4

1. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
   1. Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
   2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[
      • that of being commanded by a person responsible for his subordinates;
      • that of having a fixed distinctive sign recognizable at a distance;
      • that of carrying arms openly;
      • that of conducting their operations in accordance with the laws and customs of war.
   3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
   4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
   5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
   6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
2. The following shall likewise be treated as prisoners of war under the present Convention:
   1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
   2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.
3. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Don't want to read all that? Here's a summation

Article 4 covers all conflicts not covered by Article 3 which are all conflicts of an international character. It defines prisoners of war to include:

* 4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces
* 4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
o that of being commanded by a person responsible for his subordinates;
o that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
o that of carrying arms openly;
o that of conducting their operations in accordance with the laws and customs of war.
* 4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
* 4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.
* 4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
* 4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
* 4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy.

So it doesn't matter where the war is, as a signatory of the Geneva Conventions, as long as it's a war, the conventions outlines apply. Nice try tot.

 

[Trajan Octavian Titus]

What a dishonest thread. Perhaps you should familiarize yourself with the Geneva Conventions, firstly note the plurality? That means more then one convention.

Yep and the SCOTUS based their findings on artilce 3 which is found in all the conventions.

Now the convention of applicability here is the 3rd convention.
You cite article 3 which is applicable here,

No Article 3 is not applicable to anything save for civil wars.

but as a signatory of the convention here's what article 4 states
[/list]

And which category listed in Article 4 do terrorists fall under???

 

[jfuh]

The court got it wrong. US courts enforce the Constitution, which is a compact between US citizens and the US government; US courts have no charter or brief to interpret treaties with other nations, and they have no jurisdiction over enemy combatants not held on US soil.

AS a signatory of the conventions, yes indeed, the supreme court as the 3rd branch of government has the power to rule what the other branches can and can not do. It's called checks and balances.

 

[jfuh]

Yep and the SCOTUS based their findings on artilce 3 which is found in all the conventions.



No Article 3 is not applicable to anything save for civil wars.



And which category listed in Article 4 do terrorists fall under???

So now you are changing your premise. Instead of ruling the applicability of the geneva conventions, now as Bush (to no surprise being you're a loyal GOP apologetic), you are stating that the terrorists are some other group. However, the supreme court has ruled already that terrorists are protected by the geneva conventions because it is a war. Or are you stating that the "war on terror" is bullshit?
BTW, article 4 supplements article 3. Thus applicable.

 

[Trajan Octavian Titus]

So now you are changing your premise. Instead of ruling the applicability of the geneva conventions, now as Bush (to no surprise being you're a loyal GOP apologetic), you are stating that the terrorists are some other group. However, the supreme court has ruled already that terrorists are protected by the geneva conventions because it is a war. Or are you stating that the "war on terror" is bullshit?
BTW, article 4 supplements article 3. Thus applicable.

OK let's break it down for you, A) Terrorists do not fall under the protection of Article 4, and B) Article 3 is only applicable to civil wars.

Now you assert that Article 4 supplements Article 3 (which is riduclous they are distincly separate) but my question to you is how exactly is Article 3 applicable in the first place?

 

[Trajan Octavian Titus]

AS a signatory of the conventions, yes indeed, the supreme court as the 3rd branch of government has the power to rule what the other branches can and can not do. It's called checks and balances.

But they must make that ruling based on the law and it is abundantly clear that Article 3 only applies to cases which arise in a civil war IE Article 3 clearly states: "In the case of armed conflict not of an international character ."

 

[jfuh]

OK let's break it down for you, A) Terrorists do not fall under the protection of Article 4, and B) Article 3 is only applicable to civil wars.

A) because you say so?
B) Article 4 supplements article 3 - thus making everything in article 3 applicable to international conflict as well.
Wow, seems that even Bush understands this simple point which you don't comprehend, or are trying to make an argument out of other's ignorance?

Now you assert that Article 4 supplements Article 3 (which is riduclous they are distincly separate) but my question to you is how exactly is Article 3 applicable in the first place?

Uh, read the article itself.

 

[jfuh]

But they must make that ruling based on the law and it is abundantly clear that Article 3 only applies to cases which arise in a civil war IE Article 3 clearly states: "In the case of armed conflict not of an international character ."

I tire of your going around in circles. As my opening premise I already stated. Article 4 supplements article 3, providing everything in article 3 to be applicable to international wars.

 

[Trajan Octavian Titus]

A) because you say so?

No because it's a fact that Article 4 doesn't apply to terrorists.

B) Article 4 supplements article 3 - thus making everything in article 3 applicable to international conflict as well.

But terrorists do not fall under the protections of article 3 or article 4 and I would enjoy your reasoning of why you think they do.

 

[Trajan Octavian Titus]

I tire of your going around in circles. As my opening premise I already stated. Article 4 supplements article 3, providing everything in article 3 to be applicable to international wars.

Yes I realize that but Article 3 nor Article 4 applies to terrorists under what legal reasoning do you contradict that assertion?

 

[jfuh]

No because it's a fact that Article 4 doesn't apply to terrorists.



But terrorists do not fall under the protections of article 3 or article 4 and I would enjoy your reasoning of why you think they do.

First off the Supreme court's ruling

The D. C. Circuit ruled Common Article 3 inappli-cable 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 literalmeaning and is used here in contradistinction to a conflict betweennations is demonstrated by Common Article 2, which limits its ownapplication to any armed conflict between signatories and providesthat signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsig-natory “accepts and applies” those terms. Common Article 3, by con-trast, affords some minimal protection, falling short of full protectionunder the Conventions, to individuals associated with neither a sig-natory 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).

It's noted that you have switched again your premise so let me answer you're new premise.
What do terrorists fall under? Here it is again since you didn't bother reading the first time.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[

• that of being commanded by a person responsible for his subordinates;
• that of having a fixed distinctive sign recognizable at a distance;
• that of carrying arms openly;
• that of conducting their operations in accordance with the laws and customs of war.

6.Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

So you see tot, if they fight the war, they are POW's.
The war we are fighting is the "war on terror" seems to be specifically targeting terrorists to me, thus if they are captured, they are then POW's thus fall under the protection of the Geneva conventions.
If you don't like the way the Geneva conventions handles things, hey then don't start a war that you can't afford.

 

[jfuh]

Yes I realize that but Article 3 nor Article 4 applies to terrorists under what legal reasoning do you contradict that assertion?

Do you also realize you are now flip flopping your premise from that the Geneva convention does not apply to international conflict to now that terrorists do not fall under the category?

 

[Trajan Octavian Titus]

First off the Supreme court's ruling

Yep and that decision is clearly wrong because they based it on Artilce 3 which only pertains to civlil wars.

It's noted that you have switched again your premise so let me answer you're new premise.

How do you figure that? My overall assertion is that terrorists don't fall under the category of Article 3 you're the one who brought up Article 4 which doesn't apply either.

What do terrorists fall under? Here it is again since you didn't bother reading the first time.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[
that of being commanded by a person responsible for his subordinates;
that of having a fixed distinctive sign recognizable at a distance;
that of carrying arms openly;
that of conducting their operations in accordance with the laws and customs of war.

Umm yep thanks for proving my case;

that of being commanded by a person responsible for his subordinates;
that of having a fixed distinctive sign recognizable at a distance;
that of carrying arms openly;
that of conducting their operations in accordance with the laws and customs of war.

Terrorists do not meet anyone of these criteria.

So you see tot, if they fight the war, they are POW's.
The war we are fighting is the "war on terror" seems to be specifically targeting terrorists to me, thus if they are captured, they are then POW's thus fall under the protection of the Geneva conventions.
If you don't like the way the Geneva conventions handles things, hey then don't start a war that you can't afford.

Pure sophistry.

 

[Trajan Octavian Titus]

Do you also realize you are now flip flopping your premise from that the Geneva convention does not apply to international conflict to now that terrorists do not fall under the category?

Umm no because my assetion is that Article 3 doesn't apply to conflicts of an international conflict which is stated right there in the begining of Article 3.

 

[jfuh]

Yep and that decision is clearly wrong because they based it on Artilce 3 which only pertains to civlil wars.

How do you figure that? My overall assertion is that terrorists don't fall under the category of Article 3 you're the one who brought up Article 4 which doesn't apply either.

Umm yep thanks for proving my case;

Terrorists do not meet anyone of these criteria.

Pure sophistry.

That of carrying arms openly? Organized resistance? why did you hack off part 6? Hmmm interesting.
Seemingly you know something that the supreme court does not, that the administration does not. Hey tot, how about you going and telling them your big find?:roll:

 

[jfuh]

Umm no because my assetion is that Article 3 doesn't apply to conflicts of an international conflict which is stated right there in the begining of Article 3.

Did you read the supreme court ruling? Did you even bother with the fact of article 4?
Circles tot, now stop :spin:.

 

[Trajan Octavian Titus]

Did you read the supreme court ruling?

Yep and it's ridiculous this SCOTUS decision is the most overtly wrong interpretation of law that I have ever seen they said that Article 3 applied to terrorists when Article 3 clearly states that it only applies to "conflicts not of an international character."

 

[Trajan Octavian Titus]

That of carrying arms openly? Organized resistance? why did you hack off part 6? Hmmm interesting.
Seemingly you know something that the supreme court does not, that the administration does not. Hey tot, how about you going and telling them your big find?:roll:

Because that portion also says this:

provided they carry arms openly and respect the laws and customs of war.

Guess you missed (ignored) that part. :roll:

 

[jfuh]

Yep and it's ridiculous this SCOTUS decision is the most overtly wrong interpretation of law that I have ever seen they said that Article 3 applied to terrorists when Article 3 clearly states that it only applies to "conflicts not of an international character."

Still :spin: I see.
Well hey, it's the conservative court that Bush wanted, guess what, it's exactly what he got. Strict interrpretation of the law, none of that wishy washy activism garbage huh?

 

[jfuh]

Because that portion also says this:



Guess you missed (ignored) that part. :roll:

Oraganized resistance and the entirety of part 6 that you dishonestly hacked off?
Right.:roll:

 

[Trajan Octavian Titus]

Still :spin: I see.
Well hey, it's the conservative court that Bush wanted, guess what, it's exactly what he got. Strict interrpretation of the law, none of that wishy washy activism garbage huh?

If the SCOTUS told you to jump off a cliff would you do it?

Seriously it's very simple irefutable that Article 3 does not apply to conflicts in an intertnational character.

 

[Trajan Octavian Titus]

Oraganized resistance and the entirety of part 6 that you dishonestly hacked off?
Right.:roll:

Yep the end of part six clearly states that if they are to fall under the protections of the GC they must carry arms openly and abide by the customs and rules of war.



Section 6 does not bolster your case because terrorists do not carry arms openly or abide by the customs and rules of war.