Geneva Conventions Win, Says Helsinki Law Prof.

Radio Free Europe has, in recent years, become primarily a mouthpiece for Bushspeak justifications of administration policy. It is thus truly remarkable that they carry an interview today with Jarna Petman, professor of international law at the University of Helsinki, on what the Supreme Court's ruling yesterday means for the application of the Geneva Conventions. Petman is unequivocal:

The whole setting up of "light torture" mechanisms [interrogation techniques that interrogators say do not constitute torture, but human rights groups say do] and the intensified interrogation mechanisms, the unusual detention centers set up all over -- these are all violations of the Geneva Conventions.

...The calling of the detainees "enemy combatants" and "illegal combatants" was something that the Geneva Convention does not recognize. This is a category that has never existed before, and it has been created in the war against terror specifically to put these people [out of reach of] the Geneva Conventions. And for the Supreme Court to recognize [implicitly] that this particular category does not exist -- it is indeed the Geneva Conventions that win the day.

...What the Geneva Conventions require is that each time you capture an individual on the battlefield, you must first of all define whether that person is a prisoner of war or a civilian. If that person is a prisoner of war, and you suspect that he or she has committed war crimes, then the Geneva Conventions require that you submit that person to the very same criminal procedures that you would your own soldiers. Those are national courts-martial. If you decide that this particular person is not a prisoner of war but a civilian, then you have two ways to go. Either you find that person innocent, in which case you will have to let that person go. Or, if you suspect that this particular person has committed war crimes, then you must submit that person to the national, domestic criminal-procedure system.

Did we all get that? POW or civilian - there is no third category. And in either case those accused must be tried with the full panoply of justice applicable to their category - like the ability to challenge their accusers and evidence, cross-examine, not be physically abused to extract information, have a lawyer present, etc. etc. A third option transgresses the Geneva Conventions.

International (and therefore U.S.) law is equally unequivocal about what we call a transgression of the laws of war, including the Geneva Conventions, by a signatory nation during a conflict - war crime. By international and U.S. law, the Nuremberg Principles then apply - a commander is just as guilty as the person who actually comitted the crime, those who had the power of command to stop a crime but didn't are equally culpable and "I was just following orders" is not a defense.

Issuing legislation from Congress to artificially create a pseudo-legality for the category of "enemy combatant" and for military tribunals which lack the full panoply of American justice would itself, then, be a conspiracy to contravene the Geneva Conventions and would, by the Nuremberg Principles (Principle VII), make every congresscritter who backed such a move likewise a war criminal.

And it doesn't matter what the best political move is or what the public opinion polls say, this is about the law - of the world and the land - not domestic politics. That's why John Yoo is out of gas when he says the Supreme Court has no authority to make the ruling they did yesterday and why Democrat spinners like Reed Hundt are just plain wrong when they advocate moving to the right of the Right and clamoring for legislation to allow military tribunals.