R
rceme_rat
Guest
Brad, the determination of status is a matter for the courts, not a matter for the state to determine arbitrarily. I suppose that will be one of the first issues dealt with by the defence team. I would expect such an issue would be dealt with promptly, much as with detention upon arrest. Of course, questions have been raised about the arbitrariness of other related detentions.
The more interesting legal question is whether liability arises under the detention system - i.e., where a soldier turns over the captured combatant to a higher formation, does he bear any liability for the treatment of that combatant?
It is interesting because at first glance, it would seem that since the soldier has no control over the treatment, he couldn‘t be liable. However, the concern arises that the soldier, being aware of an illegal detention policy, becomes liable if he turns over the combatant to be subjected to it.
Personally, I would think that individual soldiers in this case would be shielded from liability, unless the policy is clearly illegal. This doesn‘t resolve the issue of Canada‘s adoption of the U.S. policy -- while an individual Canadian soldier on exchange might be directly subject to U.S. command, the senior Canadian formation commander will have responsibilty to both the Canadian government and to his American operation commander. If the Canadian analysis differs from the U.S. one, then a Canadian detention policy would be required.
My other observation is that the thread really has two discussions - the first is roughly along the lines of "do we really have to follow the Geneva Convention, even if we don‘t like the other guys?" and the second is"are the captured combatants being treated appropriately?".
Given that the answer to the first is clearly "Yes", the military problem is solved. The problem posed by the second question is much more a political one. In essence, the question revolves around civil rights. The short answer is that governments - particularly large, powerful, democratic governments - ignore civil rights at their peril. Here, I don‘t think it would be terribly difficult for the U.S. to treat these combatants as PW rather than as unlawful combatants until their status is resolved. Taking the high road should be the preferred option.
Finally, to suggest that the U.S. government isn‘t a bunch of thugs and therefore what they do can‘t be that bad, is to be incredibly naive. Not because they are hugs, but because the development of the U.S. Constitution, and of our own (including the Charter), is based on the opposite premise - that governments should not infringe on personal liberties except to the extent reasonably necessary.
As for certain comments made by others, I am really dismayed at the underlying tone. E.g., to suggest a Rambo-esque "don‘t take prisoners" approach is to forget the experience of the Gulf War (where whole battalions surrendered) or the long lines of prisoners being marched to detention in WW II. The reality is that professional, well-disciplined soldiers will take prisoners. Cut and dried, to shoot a combatant who has surrendered is murder.
The more interesting legal question is whether liability arises under the detention system - i.e., where a soldier turns over the captured combatant to a higher formation, does he bear any liability for the treatment of that combatant?
It is interesting because at first glance, it would seem that since the soldier has no control over the treatment, he couldn‘t be liable. However, the concern arises that the soldier, being aware of an illegal detention policy, becomes liable if he turns over the combatant to be subjected to it.
Personally, I would think that individual soldiers in this case would be shielded from liability, unless the policy is clearly illegal. This doesn‘t resolve the issue of Canada‘s adoption of the U.S. policy -- while an individual Canadian soldier on exchange might be directly subject to U.S. command, the senior Canadian formation commander will have responsibilty to both the Canadian government and to his American operation commander. If the Canadian analysis differs from the U.S. one, then a Canadian detention policy would be required.
My other observation is that the thread really has two discussions - the first is roughly along the lines of "do we really have to follow the Geneva Convention, even if we don‘t like the other guys?" and the second is"are the captured combatants being treated appropriately?".
Given that the answer to the first is clearly "Yes", the military problem is solved. The problem posed by the second question is much more a political one. In essence, the question revolves around civil rights. The short answer is that governments - particularly large, powerful, democratic governments - ignore civil rights at their peril. Here, I don‘t think it would be terribly difficult for the U.S. to treat these combatants as PW rather than as unlawful combatants until their status is resolved. Taking the high road should be the preferred option.
Finally, to suggest that the U.S. government isn‘t a bunch of thugs and therefore what they do can‘t be that bad, is to be incredibly naive. Not because they are hugs, but because the development of the U.S. Constitution, and of our own (including the Charter), is based on the opposite premise - that governments should not infringe on personal liberties except to the extent reasonably necessary.
As for certain comments made by others, I am really dismayed at the underlying tone. E.g., to suggest a Rambo-esque "don‘t take prisoners" approach is to forget the experience of the Gulf War (where whole battalions surrendered) or the long lines of prisoners being marched to detention in WW II. The reality is that professional, well-disciplined soldiers will take prisoners. Cut and dried, to shoot a combatant who has surrendered is murder.