Update on Alan Cox's Sabbatical

seymansey writes "ITWales, a company which resides on the Swansea University Campus has posted an interview with Alan Cox regarding his progress of his MBA. It also mentions his opinions on some legal matters that he shows interest in, as well as his plans for the future, and of course for Linux itself."

Comments

Re:Geneva convention and "illegal combatants"

[Paul Jakma]

Read my third paragraph of the comment you replied to more carefully.

According to the GCs, they are either POWs or civilians, one or the other, further the *default* is that a combatant is a POW. The GC relative to the treatment of prisoners of war, 1949, Article 4, Part A sets out what classes of detainees must be considered POW, and its a very broad list, eg, here is one class:

"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."

Reasonably broad. And it also covers civilian resistance to invasion (during the war at least):

"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."

Now, you might quibble about whether someone falls into the classes laid out in Article 4, however, the GC is *explicit* in stating that it requires competent tribunal to class someone as not being a POW, see the short and sweet Article 5:

"The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

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."

Note that persons who have not comitted belligerent acts are therefore civilians, and hence afforded the rights laid out under the GC relative to the Protection of Civilian Persons in Time of War. At best you could try them as a spy or saboteur, note the use of the word "try", these classes of people are *still* afforded due process. This convention specifically forbids:

"(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."

in Article 3, 1d. Hence if the USA does execute or pass sentence on people detained at Guantanemo bay by means of ad-hoc and closed military courts, the USA would still be in breach, even if these people are *not* POWs - however they clearly must be as the USA has described them as combatants.

Note that the convention does not afford protection to civilians who are nationals of States which are not signatories or which have normal diplomatic relations with the belligerent State. Which is interesting, because while the USA is a signatory to the GCs, I'm not sure whether the USA congress actually ratified the signing of the GC, hence nationals of the USA may not be protected by the GC relative to civilians. Nor would any detainees at Guantanemo who are nationals of non-signatory states, however, they might still have some claim to POW status. They were picked up in belligerent states which the USA had invaded.

Really, it all boils down to: "treat them humanely and be just. If they're combatants you may detain them, but you must still treat them reasonably well and be just."