critiche al tribunale militare USA

["Nello Margiotta" <animarg@tin.it>]

Critics' Attack on Tribunals Turns to Law Among Nations by  William
Glaberson
 New York Times, 26 December 2001

Centre for Research on Globalisation (CRG),  globalresearch.ca,  30 December
2001



Going beyond claims that the military tribunals authorized by President Bush
would violate civil liberties guaranteed by American law, some experts are
beginning to argue that they would breach international law guaranteeing
fair treatment of prisoners of war.

Critics of the administration say the president's order authorizing the
tribunals conflicts with treaties like the Geneva Conventions, which give
P.O.W.'s facing charges of egregious conduct protections that include the
right to choose their own lawyers, to be tried in courts that are
independent of the prosecution and to appeal convictions. None of those
rights are assured in the president's order, which opponents say precludes
at least two of them.

The critics, among them legal experts with military backgrounds, say the
tribunals could create risks for the armed forces, including the possibility
of charges by other countries that American officers who conduct tribunals
are guilty of war crimes.

"If the U.S. government is going to pull the wool out from under the Geneva
Conventions, that is going to be serious for our soldiers," said Francis A.
Boyle, an expert on the law of war at the University of Illinois.

A central issue, experts on both sides of a growing debate about the
tribunals say, is whether Mr. Bush meant to declare that members of the
Taliban, Al Qaeda and other organizations that support terrorists would not
qualify for the protections given prisoners of war.

The administration has sent contradictory signals on the issue. The Defense
Department has said that those captured in Afghanistan are being provided
the humane treatment guaranteed P.O.W.'s by international law. And in an
interview, an administration official who spoke on the condition of
anonymity said, "It is not the case that we have abandoned the Geneva
Conventions" in planning for the handling of those subject to trial by
military tribunal.

But in remarks on Nov. 29, the president, denouncing those who "seek to
destroy our country and our way of life," described them as "unlawful
combatants." That was the term applied by the Supreme Court in its 1942
decision upholding military tribunals for a group of German saboteurs who
had slipped into the United States. In that ruling, the justices said spies
and saboteurs were violators of the law of war and so were not entitled to
prisoner-of-war protections.

Beyond the issue of whether the tribunals themselves would be lawful is the
question of how broadly they should be applied. Critics say that grouping
not only terrorists but also forces of the nations supporting them as
unlawful combatants would invite other countries to so describe any American
troops who were engaged in a campaign that a hostile nation deemed
illegitimate.

"If we argue it is legal, we are arguing that other sovereigns - Libya,
Syria, Iraq, Cuba - could also have tribunals," said Alfred P. Rubin, a
former Pentagon lawyer who is a professor at the Fletcher School of Law and
Diplomacy at Tufts University.

The administration's supporters say that no matter what rules the United
States adopts in deciding how to try terrorists and their allies, the
niceties of international law would be unlikely to limit abusive treatment
of any Americans captured by some enemy nations.

But the critics say this country long ago decided that compliance with
agreements like the Geneva Conventions was in American interests. During the
Vietnam War, several experts noted, American military officials at first
refused to grant captured Vietcong the protections of prisoners of war. But
that decision was quickly reversed, they said, when it became clear that
Americans, too, would become prisoners during the conflict.

Much of the body of international protections accorded warfare's sick,
wounded or captured soldiers is laid out in the Geneva Convention of 1864
and its subsequent revisions.

Although prisoners of war are usually released at the end of hostilities,
international law permits trial of captured opponents under certain
circumstances. (How serious the alleged offense need be is a matter of
debate.) But even those experts who back the administration say the
president's "unlawful combatants" remark suggested that the tribunals would
not comply with the detailed requirements of the prisoner-of-war pact
formally known as the third Geneva Convention, of 1949, Relative to the
Treatment of Prisoners of War.

"He was making the claim that in the view of the administration, the
standards of Geneva III do not apply," said Ruth Wedgwood, an
international-law professor at Yale and the Johns Hopkins School of Advanced
International Studies, who is a defender of the tribunal plan.

Professor Wedgwood said the administration appeared to be laying the
groundwork for arguing that terrorists and their allies are not entitled to
prisoner-of-war protections, although the president's order said any
military tribunals would conduct trials that are "full and fair."

The administration official who was interviewed said it would be premature
to discuss the new criticism being directed at the tribunals, since the
Defense Department was still drafting regulations on how they would be
conducted. Those regulations, the official said, will comply with
international law.

The official noted that the president had specified only minimal standards
for the tribunals - that sentences, for instance, must be approved by a
two-thirds vote. The official said the Pentagon could tighten those
standards, providing that a death sentence, for example, require a unanimous
vote.

But some critics say the president's order includes so many provisions
violating the Geneva Conventions that it would be difficult for the
regulations to meet the conventions' requirements. Michael J. Kelly, an
international-law specialist at Creighton University School of Law, in
Omaha, said a line-by-line comparison showed many such instances. For
example, he said, the president's assuming the authority to make the final
decision on the disposition of each case is in direct conflict with the
third Geneva Convention's provision that no prisoner be tried by a court
that fails to offer "the essential guarantees of independence and
impartiality."

Further, the convention guarantees prisoners a right of appeal, while the
president's order seems to bar it. And the convention guarantees a defense
counsel of the prisoner's choice, where the president's order, while
authorizing defense lawyers, does not say whether the prisoner can choose
his own.

Some of the critics, including Jordan J. Paust of the University of Houston
Law Center, who has taught at the Army's military law school, said the
president appeared to have concluded that it was assaults on civilian
targets like the World Trade Center that made the attackers unlawful
combatants.

The trouble with that analysis, Mr. Paust said, is that it give terrorists
the ability to claim that under international law, attacks on military
targets like the Pentagon and the destroyer Cole are lawful acts of combat.

"What the president is doing," Mr. Paust said, "is legitimizing certain
types of terrorism."




Copyright the New York Times 2001. Reprinted for fair use only.


Nello

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