Uncle Sam
02-13-2004, 09:43 PM
http://news.myway.com/top/article/id/341244|top|02-13-2004::19:52|*******.html
MIAMI (*******) - Defense Secretary Donald Rumsfeld on Friday defended the indefinite detention of hundreds of foreign terrorism suspects in Guantanamo Bay, Cuba, and said they had disclosed vital information about al Qaeda.
Rumsfeld said interrogation of the prisoners had provided details of the group behind the Sept. 11, 2001 attacks and could help prevent future acts of terrorism.
In Washington, the Pentagon gave its first account of whom it was holding at the base, and said the prisoners included senior al Qaeda and Taliban leaders.
"Enemy combatants at Guantanamo include not only rank-and-file Jihadists who took up arms against the United States, but also senior al Qaeda operatives and leaders, and Taliban leaders," Paul Butler, a Pentagon official involved in Guantanamo policy, said without providing names, nationalities or any specific evidence.
Rumsfeld also said the United States would create a board to review each year the cases of prisoners held at the U.S. naval base to consider whether they should be released or held further as a threat to U.S. security.
Speaking to a business group in Miami, Rumsfeld called the continued detention of the roughly 650 Guantanamo prisoners without charges or access to lawyers a "security necessity, and I might add it is also just plain common sense."
"I recognize that in our society the idea of detaining people without lawyers seems unusual, detaining people without trials seems unusual. After all, our country stands for freedom and it stands for the protection of rights," Rumsfeld said.
But he said the prisoners are not "common criminals."
"They're enemy combatants and terrorists who are being detained for acts of war against our country. And that is why different rules have to apply," he said.
Butler said one detainee caught in Pakistan had links to a financier of the Sept. 11, 2001, attack on America and said this man tried to enter the United States in Orlando, Florida, the month before on a day when evidence suggests one the hijackers was at the same airport.
Another detainee was a bodyguard for al Qaeda leader Osama bin Laden and escorted him to Tora Bora during the U.S.-led war to topple Afghanistan's Taliban rulers and crush al Qaeda, Butler said. Another was responsible for a grenade attack on a foreign journalist's vehicle in Afghanistan, he added.
The prisoners have been held for as long as two years after being caught in Washington's global war on terrorism.
Human rights groups have criticized their indefinite detention, the unwillingness to classify them as POWs, and the rules established for military trials of some of the prisoners.
'SPEED VICTORY'
Rumsfeld said that "the United States has no desire to hold enemy combatants any longer than is absolutely necessary," adding that holding them "provides us with intelligence that can help us prevent future acts of terrorism. It can save lives. And, indeed, I am convinced it can speed victory."
Rumsfeld said detainees "have revealed al Qaeda leadership structures, operatives, funding mechanisms, communication methods, training and selection programs, travel patterns, support infrastructures and plans for attacking the United States and other friendly countries."
He said they have provided information on al Qaeda front companies and bank accounts, surface-to-air missiles, roadside bombs, and "tactics that are used by terrorist elements."
"And they have confirmed other reports regarding the roles and intentions of al Qaeda and other terrorist organizations," Rumsfeld said.
The detainees are designated "enemy combatants," and are not prisoners of war entitled to a host of legal rights. Countries holding POWs are obligated under international accords to release them at the end of hostilities, but the Pentagon argues the war on terrorism could last for years.
Rumsfeld said the United States was negotiating to repatriate many who are deemed a threat but who are not targeted for tribunals.
Rumsfeld said the reason no Guantanamo prisoners have been charged or tried is because the priority has been interrogating them to gather information that could prevent attacks. (Additional reporting by Will Dunham in Washington and Emma Graham-Harrison in Madrid)
Schwabo Elite
02-14-2004, 07:21 AM
Sorry, no short answer.
Look here:
Unlawful combatant - what's that?
The clumsy roll-out of a dubious new term could put Canadian officials on trial
by Kevin Potvin
A new term has entered the popular lexicon, courtesy of US Secretary of Defence, Donald Rumsfeld. The Taliban and Al-Qaeda fighters captured by US forces in Afghanistan and transported to the US military base at Guantanamo Bay, Cuba, Rumsfeld said, are not 'prisoners of war' as defined by the 1949 Geneva Convention, but rather 'un-lawful combatants.'
An international debate has arisen about this definition, and Canada is in the middle of the controversy. The United Nations, Amnesty International, and the Red Cross all have disputed the US definition of the prisoners as 'unlawful combatants.' These groups say they are prisoners of war, and are thus entitled to the rights guaranteed under the Geneva Convention, to which the US is a signatory.
US forces who captured the prisoners put them in shackles and hoods, sedated some, and placed them on flights to Cuba, where they have been penned in open-air chain-link fence cells measuring eight feet by six feet. This treatment, say many experts, contravenes the rules regarding conditions for prisoners of war.
Last week, the Canadian government said it would refuse to hand over to the US those fighters its armed forces captured in Afghanistan unless the US defined them as POWs, and treated them according to the Geneva Convention. However, the very next day, the Canadian government changed tack, and instead said it would hand them over, no questions asked.
This about-face was in direct response to Rumsfeld, who said any nation helping the US in Asia who refused to hand over captured forces would not be allowed into any area where they might encounter them- essentially a promise to locate forces sent to help the US well away from any combat areas. Canada earlier this month refused to send armed forces unless they would be used in areas that would expose them to potential combat. All other nations' armed forces involved in Asia are deployed in peacekeeping missions.
In addition to the treatment they have been subjected to already, by denying them POW rights under the Geneva Convention, the US allows itself to subject the prisoners to torture and possibly death sentences. Already, in November last year, US president Bush signed into law measures allowing US forces to use torture on captured 'terrorists,' and to employ off-shore military tribunals to try the captured forces, sentence them, and execute them. They may now do all this with no requirement to share any information about this activity: the tribunals, their results, and the potential executions may be kept a secret.
An 'unlawful combatant' was defined in a 1942 US Supreme Court Case, known as 'The Quinn Case.' The Quinn Case involved eight German saboteurs captured on American soil with plans to attack military targets. The US in this case was able to execute the saboteurs because they were not deemed in the case to be prisoners of war, but unlawful combatants. The court then went on to explain the difference.
What's a uniform?
War hats come in all shapes and sizes
According to the international law of war, 'lawful combatants' are soldiers in uniform fighting for their respective militaries, while 'unlawful combatants' are people not in uniform who sneak into the opposing territory to wreak havoc.
'The spy who secretly and without uniform passes the military lines of a belligerent in time of war,' reads the 1942 US Supreme Court decision, 'seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoner of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.'
There has been no case in law that has supplanted or elaborated this definition, and it is the accepted legal definition that applies to this day. A few points are crucial in determining whether the captured Taliban and Al-Qaeda fighters now at Guantanamo Bay can be defined as 'unlawful combatants.' The legal definition relies heavily on the fact of whether the enemies were in uniform or not. This is a difficult point to settle. The combatants in this case were captured wearing ordinary robes and turbans- not generally recognized military uniforms. However, during several decades of war in Afghanistan, the typical outfit worn by combatants has been ordinary robes and turbans, and these may be regarded as military uniforms there.
It is revealing that when Taliban forces surrendered to Northern Alliance forces last fall, and then agreed to fight in cooperation with the Northern Alliance, they changed the colour of their turbans from white to brown. This would seem to indicate that the turban is part of a military uniform, insofar as uniforms are meant to identify a person as a combatant and to suggest which side a combatant is on.
Another point is whether the captured Taliban and Al-Qaeda crossed belligerent lines. The US action in Afghanistan has relied almost exclusively on air-delivered munitions, and there has never been any recognizable 'line' that combatants can be deemed to have crossed or not, since the entire country was (and remains) an open war zone.
It would be difficult for the US to argue that combatants fighting an invader within the borders of their own country are guilty of crossing any lines. The opposite- that the US forces are the unlawful combatants- would be the easier argument to make. What is definitely beyond dispute is that the captured forces certainly did not enter any US territory.
These facts thus require the US to make the case that the attack on the World Trade Center on September 11 is the event during which combatants out of uniform crossed into enemy territory secretly to wage acts of war. However, those combatants all died in the attack.
The prisoners captured in Afghanistan and brought to Cuba did not personally conduct the attack. The 1942 Supreme Court decision does not penalize anyone involved with the unlawful combatants who themselves did not conduct an unlawful attack. For example, no case was made against the commanders of the eight German saboteurs who remained in Germany, even though the decision discusses at length the fact that the saboteurs were operating under direct orders.
Canada, in its decision to hand over captured forces to the US, without the stipulation that they be regarded as POWs, exposes the Prime Minister, the Minister of Defence, and many senior military officers to charges of war crimes. They are also exposing Canada to the risk that its international reputation will be severely tarnished for the act of harbouring these war criminals.
(c) The Republic, Vancouver's Opinionated Newspaper http://www.1rev.net/archive/30-repub/repub_30_3.html
Schwabo Elite
02-14-2004, 07:22 AM
and here:
The Geneva Convention does not apply...
According to *******, US Secretary of War Defense Donald Rumsfeld, appearing on CBS news, was shown Al-Jazeera video footage of captured and killed US troops.
"That's a violation of the Geneva Convention, those pictures you showed," [Rumsfeld] said of the international law on treatment of prisoners of war, which he said prohibits the photographing or interrogation by media of those captured in battle.
To its credit, ******* followed Rumsfeld's statement with a further paragraph, stating:
Pictures of Iraqi soldiers surrendering to U.S.-led forces in the last few days have been featured prominently on U.S. television and in newspapers.
Although the Geneva Conventions do not explicitly mention "photographing or interrogation by media," they do protect POWs "against acts of violence or intimidation and against insults and public curiosity." I am not familiar with the body of international precedent related to treatment of POWs, but the International Committee of the Red Cross does seem to consider the Iraqis to be violating the rights of prisoners. (The spokesperson very carefully avoids making an absolute determination that the footage does violate the convention, despite the certainty of the article's headline.)
Of course, Mr. Rumsfeld should be very careful in citing the Geneva Conventions. The US may be in direct violation of those conventions in holding 650 suspected Taliban and Al Qaeda members at its Guantanamo Bay facility for the past 14 months. The US, despite the requests of the Red Cross, Human Rights Watch and other international organizations maintains that the Camp Delta prisoners are not POWs, but "enemy combatants," and therefore, not subject to the provisions of the Geneva Conventions.
The recent decision by the US Circuit Court of Appeals for the DC Circuit in Al Odah v. United States skirts the issue of Geneva Convention violations by claiming that "...Cuba - not the United States - has sovereignty over Guantanamo Bay." (I'm not making this up! Despite warships, fences, armed guards and 45 years of embargo, we're claiming that Cuba is the sovereign authority.) By avoiding any claim of jurisdiction, the Circuit Court has put the prisoners beyond the pale of any laws. The US claims
the detainees are not Prisoners of War and are, therefore, not subject to the Geneva Convention,
they are not on US soil and are not entitled to the protections of US law,
they are being detained on "the field of battle", because, as Judge Randolph claims in his concurring opinion in Al Odah, the "historical meaning of 'in the field' was not restricted to the field of battle", but also applies to camps maintained at a safe location,
the US is not obligated to return them to their countries of origin because the hostilities are not yet over, and
even if the hostilities were over, these prisoners pose a security threat to the United States and would not be released.
Even in his most ironic, satiric moment, Joseph Heller never dreamed of a "catch" like this one. They've been cast into a legal black hole and the US would be very happy if the rest of the world forgot about the detainees.
Of course, there is a solution to the detainee problem, which could be justified by all of my government's tortuously convoluted bending of the law. See, it goes like this: Back in November of 2002, the US assasinated a key Al Qaeda operative in Yemen, using an unmanned drone aircraft to deliver a Hellfire missile. Despite President Reagan's Executive Order 12333 which orders "[N]o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination," the administration was not concerned that it had violated this ban. As Professor Jeffrey Addicott of St. Mary's University School of Law explains,
Since we are at war with al-Qa’eda, any legal analyis of the use of violence against that enemy turns on how violence is employed. In short, the United States must exercise violence lawfully in accordance with the rules associated with the law of armed conflict. The law of armed conflict describes lawful targets which can be destroyed in the proper context of combat operations. An enemy combatant - whether part of an organized military or a civilian who undertakes military activities - is a legitimate target at all times and may be lawfully killed, even if by surprise.
So, the detainees at Guantanamo have been captured on the field of battle (the field of battle being defined as "wherever they are found"), are now in military custody on soil that is not part of the sovereign territory of the US. By that definition, they are "legitimate targets" and may be lawfully killed. Easy, ain't it?
Lucky thing the Iraqis don't have such good lawyers who can justify killing POWs. They'll probably just hold our captured servicemen in keeping with the Geneva Convention.
(c) http://www.guy****inson.com/sheep/archive/000665.html
Schwabo Elite
02-14-2004, 07:25 AM
and here: :)
Prisoner of war
de:Kriegsgefangener
A Prisoner of War (POW) is a combatant who is imprisoned by an enemy power during an armed conflict.
The Geneva Conventions of 1949 provides a framework of protective rights of POWs. The basic principle is that being a soldier is not a punishable act in itself. The laws apply from the moment a prisoner is captured until he is released or repatriated. One of the main provisions of the convention makes it illegal to torture prisoners, and states that a prisoner can only be required to give his name, date of birth, rank and serial number (if applicable).
According to the Article 4 of the Third Geneva Convention, protected combatants includes military personnel, guerrilla fighters and certain civilians.
To be entitled to prisoner of war status, the combatant must conduct operations according to the laws and customs of war, e.g. be part of a chain of command, wear a uniform and bear arms openly. Thus, franc-tireurs, terrorists and spies are excluded. It also does not include unarmed non-combatants who are captured in time of war; they are protected by the Fourth Geneva Convention rather than the Third Geneva Convention.
The United States uses the term enemy prisoner of war (EPW) for hostile forces, reserving the term prisoner of war for its own or Allied forces.
See also: Combatant, laws of war, war crime, Illegal combatant
(c) http://www.wordiq.com/cgi-bin/knowledge/lookup.cgi?title=Prisoner_of_war
and here:
Combatant
A combatant (also referred to as a "Enemy combatant") is a soldier or guerrilla member who is waging war. Under the Geneva Conventions, a person waging war must have the following four characteristics to be protected by the laws of war:
1. In uniform; wearing distinctive clothing making them recognizable as soldiers from a distance.
2. Openly bearing arms; carrying guns or small arms and not concealing them.
3. Under officers; obedient to a chain of command ending in a political leader or government.
4. Fighting according to the laws of war; not committing atrocities or crimes, not deliberately attacking civilians or engaging in terrorism.
5. A combatant who has surrendered becomes a prisoner of war.
A captured person not wearing a uniform who is caught carrying weapons or engaging in warlike acts (such as a spy) is not a combatant and is therefore not protected by the laws of war. Such persons should be treated according to applicable civilian laws (if any). In practice they may be tortured or executed.
See also
Non-combatant
Illegal combatant
Civilian
Mercenary
(c) http://www.wordiq.com/cgi-bin/knowledge/lookup.cgi?title=Combatant&PHPSESSID=a472bd09a50312b0faa7650d46af526d
and here: *fin*
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
Chapter II : Wounded and sick
ARTICLE 12 -- PROTECTION AND CARE
This Article, as the commentator on the 1929 Geneva Convention (1) very properly emphasized, is the keystone of the whole Convention. The principle of the inviolability of the wounded and sick, which figured [p.134] as Article 6 in 1864 , had been transferred in 1906 to its natural and logical place at the beginning of the Convention, as Article 1 . In 1949, however, the necessity of commencing the four Geneva Conventions with common general provisions caused it to become Article 12. It is none the less true that the Article opens the Convention proper and dominates it throughout. From the great principle laid down in that Article flow all the other obligations imposed upon Parties to a conflict in the subsequent Chapters -- namely, the obligation to respect medical units and establishments (Chapter III), the personnel entrusted with the care of the wounded (Chapter IV), buildings and material (Chapter V), medical transports (Chapter VI) and, lastly, the emblem, which is to serve as the common visible symbol of immunity (Chapter VII).
PARAGRAPH 1 -- RESPECT AND PROTECTION
A. ' General. ' -- The 1864 Convention confined itself to stating the principle in all its simplicity, but at the same time with all its force, without developing its meaning in any way: "The military wounded and sick shall be collected and cared for, to whatever nation they may belong."
At the time of the first revision in 1906 the idea of ' respect ' for the wounded -- implicit until then -- was expressly added. At the second revision; in 1929, the formula was further extended by speaking of ' protection ' and ' humanity. '
It should be pointed out in this connection that the notion of "neutrality", a term which in the 1864 text expressed the immunity enjoyed by ambulances, medical personnel, and by implication the wounded themselves, had already been dropped by 1906, The notion in question no doubt conveyed clearly enough that a combatant ceased to be an enemy once he was wounded and therefore harmless, and also the conception of medical personnel as being outside the conflict; but it did not correspond to reality, as the term "neutrality" refers essentially to the abstention of persons who are taking no part in the conflict. In place of this unsuitable and inexact expression it was thought preferable to substitute the notion of respect and protection in all circumstances. The word "respect" (' respecter ') means, according to the Dictionary of the French Academy, "to spare, not to attack" [p.135] (' épargner, ne point attaquer ') (2), whereas "protect" (' protéger ') means "to come to someone's defence, to lend help and support" (' prendre la défense de
quelqu'un, prêter secours et appui '). The introduction of these words made it unlawful for an enemy to attack, kill, illtreat or in any way harm a fallen and unarmed soldier, while it at the same time imposed upon the enemy an obligation to come to his aid and give him such care as his condition required.
The Diplomatic Conference of 1949 very rightly considered that this great principle, the corner-stone of the Convention, must not be touched. It accordingly left intact the four imperatives which had in 1929 defined the inviolability of the wounded -- namely, respect, protection, humane treatment and care. It was desired, however, to make the last two of these unconditional requirements more precise in certain respects. For greater clarity, and with a view to rendering more formal the absolute command regarding respect and protection, two separate paragraphs, which will be considered below, were devoted to these principles.
B. ' Extent of the obligation. ' -- The obligation embodied in this paragraph (paragraph 1) is general in character: it is applicable "in all circumstances". The wounded are to be respected just as much when they are with their own army or in no man's land as when they have fallen into the hands of the enemy. The obligation applies to all combatants in an army, whoever they may be, and also to non-combatants. It applies also to civilians, in regard to whom Article 18 specifically states: "The civilian population shall respect these wounded and sick, and in particular abstain from offering them violence." A clear statement to that effect was essential in view of the special character which modern warfare is liable to assume (dispersion of combatants, isolation of units, mobility of fronts, etc.) and which may lead to closer and more frequent contacts between military and civilians. It was necessary therefore, and more necessary today than in the past, that the principle of the inviolability of wounded combatants should be brought home, not
only to the fighting forces, but also to the general public. That principle is one of the fine flowers of civilization, and should be implanted firmly in public morals and in the public conscience.
The necessity of not confining the benefits of the Convention to [p.136] officers and soldiers alone, but of extending it to include "other persons officially attached to the armed forces", had been recognized in 1906; but no attempt was made to specify who such persons might be, as it was desired to avoid encumbering the text and above all to avoid the drawbacks to a restrictive and possibly incomplete enumeration. It was felt that the fact of officially belonging to an army could be shown sufficiently clearly by an entry in the paybook of the man concerned or by some other authentic document. This attitude continued to be maintained by the 1929 Conference.
The Diplomatic Conference of 1949, on the other hand, took a different view for reasons which will be indicated below in connection with Article 13 . It decided to incorporate in the Convention itself as complete a list as possible of the persons to whom the Convention was to be applicable. It is to this list that the paragraph under consideration (paragraph 1) refers.
C. ' Definition of the wounded. ' -- No attempt has ever been made in the Geneva Convention to define what is meant by a "wounded or sick" combatant; nor has there ever been any definition of the degree of severity of a wound or a sickness entitling the wounded or sick combatant to respect. That is as well; for any definition would necessarily be restrictive in character, and would thereby open the door to every kind of misinterpretation and abuse. The meaning of the words "wounded and sick" is a matter of common sense and good faith. They cover combatants who have fallen by reason of a wound or sickness of any kind, or who have ceased to fight and laid down their arms as a consequence of what they themselves think about their health (3). It is the fact of falling or laying down of arms which constitutes the claim to protection. It is only the soldier who is himself seeking to kill who may be killed. The abandonment of all aggressiveness should put an end to aggression.
PARAGRAPH 2 -- TREATMENT AND CARE
A. ' General. ' -- It is not sufficient to respect the wounded. They require ' care, ' If a soldier, who is ' hors de combat, ' is respected and [p.137] protected against injury of any kind, but is at the same time left to struggle alone against the effects of his wound or his sickness, he runs a great risk of succumbing. There is therefore a positive, as well as a negative, obligation: the wounded and sick must be given such medical care as their condition requires. This fundamental principle has remained unchanged since 1864.
As in the case of protection, the work of relief must be impartial: that is to say, each belligerent must treat his fallen adversaries as he would the wounded of his own army. This duty falls on every individual. Any soldier coming upon a wounded enemy must give him such care as he has at his command, and must endeavour to hand him over to a medical unit.
The 1929 Conference was further anxious to include in the Convention a rule which had until then been implicit because of its obvious character -- to the effect, namely, that wounded and sick must be treated with humanity. The word "treatment" in this connection is to be taken in its most general sense, as applying to all aspects of a man's existence and not merely in a medical sense. A surgeon "treats" a wounded man by operating on him; but he would be treating him inhumanely, if he did not give him an anaesthetic first.
The Diplomatic Conference of 1949, as we have already seen, made a point of defining and developing certain terms in the existing text. The conceptions of respect and protection were left as they were in the 1906 text; but the conceptions of humane treatment and care were considerably expanded in paragraphs 2, 3 and 4.
The 1949 Conference sought in the first place to determine what distinctions might, or might not, legitimately be made in the treatment of the wounded or sick. It went on to illustrate its meaning by a list of particularly grave offences against the lives and persons of wounded individuals. Such offences were, of course, most strictly prohibited, and constitute "grave breaches" within the meaning of Articles 49 and 50 of the Convention (4).
B. ' Distinctions. ' -- Paragraph 2 begins by laying down that ' adverse ' distinctions are prohibited. By this novel provision the Conference very rightly sought to make it clear that it was not intended to exclude distinctions made in favour of enemy wounded or sick and in order to [p.138] take their physical attributes into account. Women, for example, must receive special consideration; (specific provision for this is made in the Convention); and special treatment in the matter of lodging, heating and clothing is naturally indicated in the case of wounded or sick accustomed to a tropical climate.
The paragraph goes on to enumerate the adverse distinctions which are, in particular, forbidden -- such, namely, as are founded on ***, race, nationality, religion, political opinions or other similar criteria. In the successive versions of the Convention down to 1929, the only distinction which might not be made between wounded or sick picked up on the battlefield, was in respect of ' nationality. ' But the painful experience of the Second World War clearly showed the need for further definition and development of this conception. The Preliminary Conference of National Red Cross Societies was already urging in 1946 that the criteria of race, ***, religion and political opinions should be included in addition to that of nationality. This contention was supported by the Experts Commission of 1947 and by the XVIIth International Red Cross Conference in 2948; and the Diplomatic Conference of 1949 fully concurred, and even went further, adding the words "or any other similar criteria" in order to strengthen the prohibition and make it more
general. Accordingly there is nothing now which can justify a belligerent in making any adverse distinction between wounded or sick who require his attention, whether they be friend or foe. Both are on a footing of complete equality in the matter of their claims to protection, respect and care. Only grounds of medical urgency can justify priority in the order of treatment, as will be seen in the next paragraph.
C. ' Prohibited attempts. ' -- Paragraph 2 then proceeds to enumerate derelictions of duty considered as being the gravest a belligerent can commit in regard to the wounded and sick in his power. This decision of the 1949 Conference also finds its explanation in the recollection of barbarous acts of which the last World War furnished all too many examples. It is quite clear, however, that the heinous crimes in question were already prohibited in the 1929 text, which established the principle of respect and protection in all circumstances -- a principle which is general and absolute in character.
The injunction begins with an imperative prohibition ("shall be [p.139] strictly prohibited"), first in general terms, of "any attempts upon their lives, or violence to their persons", the word "persons" meaning here the moral as well as the physical person. The enumeration proper follows after the general prohibition, and is not limitative: "they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not wilfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created".
This enumeration calls for comment.
It was intended, by prohibiting the subjection of wounded and sick to biological experiments, to put an end for all time to criminal practices of which certain prisoners have been the victims, and also to prevent wounded or sick in captivity from being used as "guinea-pigs" for medical experiments.
But the provision refers only to "biological experiments". Its effect is not to prevent the doctors in charge of wounded and sick from trying new therapeutic methods which are justified on medical grounds and are dictated solely by a desire to improve the patient's condition. Doctors must be free to resort to the new remedies which science offers, provided always that such remedies have first been satisfactorily proved to be innocuous and that they are administered for purely therapeutic purposes.
This interpretation is in complete accordance with the corresponding provisions of the three other Geneva Conventions -- in particular Article 13 of the Third Convention , which is the most explicit and lays down specifically that "no prisoner of war may be subjected to... medical or scientific experiments of any kind which are not justified by the medical treatment of the prisoner concerned and carried out in his interest".
The rule which forbids the creation of conditions exposing the wounded or sick to contagion or infection is bound up with the one just discussed.
PARAGRAPH 3 -- ORDER OF TREATMENT
The first effect of paragraph 3 is to strengthen the principle of the equality of treatment of the wounded, which was embodied in the preceding paragraph. It indicates the ' only ' reasons which can justify [p.140] priority in the order of treatment -- namely reasons of medical urgency.
The paragraph also indicates an exception to the above principle, but an exception which is perfectly justified. Let us suppose that the Medical Service in some place is overwhelmed by an influx of wounded, both friends and enemies. The doctors, in such a case, will attend first to those patients for whom delay might be fatal or at any rate prejudicial, proceeding afterwards to those whose condition is not such as to necessitate immediate attention.
PARAGRAPH 4 -- TREATMENT OF WOMEN
Paragraph 4 is an example of a favourable distinction which is made compulsory. Its introduction by the Diplomatic Conference of 1949 merely made good an omission in the 1929 text. At that time it was already recognized as necessary that women taking part officially in military operations should be treated with the special consideration due to their ***; and a clause to that effect was introduced in the Convention relative to the treatment of prisoners of war, but not in the Geneva Convention properly so called. It was no doubt felt that this special consideration for wounded or sick women combatants was self-evident and implied. But in view of the continually increasing participation of women in military operations, and in view also of painful experiences during the Second World War, it seemed necessary to include a special injunction on the point.
The special consideration with which women must be treated is of course in addition to the safeguards embodied in the preceding paragraphs, to the benefits of which women are entitled equally with men.
What special consideration? No doubt that consideration which is accorded in every civilized country to beings who are weaker than oneself and whose honour and modesty call for respect. Apart from this, the principle of equality of treatment as between enemies and nationals is involved. Women of the enemy's side will be allowed to enjoy the same advantages as women patients who are nationals, as well as any other favourable distinctions to which they are entitled by reason of their race, or because of the climate or food to which they are accustomed, in the same way as men of the same origin as themselves.
[p.141] PARAGRAPH 5 -- CONTRIBUTION TO TREATMENT
A Party to a conflict may rightly expect his wounded to be cared for by the enemy, but he must nevertheless continue to assist in their treatment, and must accordingly leave with those whom he cannot withdraw within his own lines, and must abandon to his adversary, part of his medical personnel and equipment, as far as military considerations permit. This provision, which was introduced as far back as 1906, meets a humanitarian requirement so obviously necessary that it was not affected by the recasting of 1929 and 1949, with the single exception that in 1949 the expression "belligerent" was replaced by the more general expression "the Parties to the conflict" -- a change which was, incidentally, introduced throughout the four Conventions.
The problem thus arising for the military commands concerned may no doubt in certain circumstances be a very difficult one; and the commentator on the 1929 Convention very properly observed as follows: "This obligation, natural and necessary as it is, may be a heavy charge if, for example, a retreating belligerent is compelled to abandon several groups of wounded in turn, leaving medical personnel and equipment with them each time. He runs the risk in such a case of having no medical personnel or equipment left for those of his troops who are the last to fall. That cannot be helped. It is his duty to provide for present needs without keeping back the means of relieving future casualties. If as a result he has no more medical personnel or equipment for subsequent casualties, he will have to do all he can to ensure that they receive relief, even appealing, in such a case, to the charity of the inhabitants, as he is entitled to do under Article 5 (5)"
But the rule laid down in this Article is not absolute. It is qualified by the reservation "as far as military considerations permit". The 1906 Convention used the expression "military circumstances". In 1929 the term "considerations" (in French, ' exigences ') was preferred as being clearer and more restrictive; and the term has been retained.
It is not indeed feasible to impose upon a military command an obligation which circumstances may render impossible of fulfilment, or to place the commander before the alternative of failing in his duty [p.142] as a leader or violating a positive engagement. As Louis Renault wrote: "It may be necessary in certain cases to correct the rigidity of a particular provision by a reminder that commanders of troops may relax such rigidity where that appears to them to be compatible with the objects of the war." (6)
If this provision cannot, therefore, be considered imperative, it represents none the less a clear moral obligation which the responsible authority cannot evade except in cases of urgent necessity. It is, moreover, as the Secretary-General of the Diplomatic Conference of 1906 pointed out, "a serious warning to belligerents to make provision in advance for medical personnel and equipment sufficient to ensure the fulfilment of their obligations." (7) Today, as then, that warning holds good.
It should, moreover, be noted that this provision is in no way bound up with the obligation, imposed upon the Parties to the conflict by paragraph 2, to care for the wounded. A belligerent can never refuse to care for enemy wounded he has picked up, on the pretext that his adversary has abandoned them without medical personnel and equipment. On the contrary, he is bound to give to them the same care as he gives the wounded of his own army. Paragraph 2 imposes an absolute obligation, to which there are no exceptions; paragraph 5 is a recommendation, but an urgent and forcible one.
* (1) [(1) p.133] Paul DES GOUTTES, ' Commentaire de la
Convention de Genève du 27 juillet 1929, ' Geneva, 1930,
page 11;
(2) [(1) p.135] The word "respect" has even a more active
connotation: it comprises such action as is necessary to
ensure respect, as in the phrase "respect of the human
person";
(3) [(1) p.136] Cases are frequent of soldiers who have
heroically continued to fight in spite of serious wounds.
It goes without saying that in so doing they renounce any
claim to protection under the Convention;
(4) [(1) p.137] See below, page 362;
(5) [(1) p.141] Article 18 in the 1949 Convention. See Paul
DES GOUTTES, ' Commentaire de la Convention de Genève du
27 juillet 1929, ' Geneva, 1930, page 15;
(6) [(1) p.142] ' Actes de la Conférence de 1906, ' page 246;
(7) [(2) p.142] ROETHLISBERGER, ' Die neue Genfer Konvention
vom 6. Juli 1906, ' Berne, 1908, page 20;
-taken from GC-
For more sources look up here: http://www.oup.co.uk/pdf/0-19-829407-7.pdf
SE
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