Friday, December 28, 2001

Critics' Attack on Tribunals Turns to Law Among Nations

…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.
http://www.nytimes.com/2001/12/26/national/26LAW.htmlpagewanted=all

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