Is there a difference between U.S. constitutional rights and human rights of the Geneva Convention?

[EmilyAnne]

Aren't the prisoners at Bagram guaranteed certain rights under the Geneva Convention?

[Why Syzygy]

1. Yes. Yes. nt

[EmilyAnne]

3. Another question (and possibly a very dumb question): would the Bagram prisoners have to be on U.S.

soil to use U.S. courts?

[Norrin Radd]

2. Universal Declaration of Human Rights

http://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights

[FrenchieCat]

4. Interesting...

Criticism

Islamic criticism
Predominantly Islamic countries such as Sudan, Pakistan, Iran, and Saudi Arabia have criticized the Universal Declaration of Human Rights for its perceived failure to take into the account the cultural and religious context of Islamic countries. In 1982, the Iranian representative to the United Nations, Said Rajaie-Khorassani, articulated the position of his country regarding the Universal Declaration of Human Rights, by saying that the UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law.<20> On 30 June 2000, Muslim nations that are members of the Organization of the Islamic Conference<21> officially resolved to support the Cairo Declaration on Human Rights in Islam,<22> an alternative document that says people have "freedom and right to a dignified life in accordance with the Islamic Shari’ah".<23>


Property Rights Criticism
Libertarians and some conservatives believe the positive rights that must be provided by others through forceful extraction (for example taxation) negate other peoples' inalienable rights.<24>


Education
Many proponents of alternative education, particularly unschooling, take issue with Article 26 where it stipulates that "...education shall be compulsory." In the philosophies of John Holt and others, compulsory education itself violates the right of a person to peacefully follow their own interests:

No human right, except the right to life itself, is more fundamental than this. A person’s freedom of learning is part of his freedom of thought, even more basic than his freedom of speech. If we take from someone his right to decide what he will be curious about, we destroy his freedom of thought. We say, in effect, you must think not about what interests you and concerns you, but about what interests and concerns us.

– John Holt, Escape from Childhood

This instance of the word "compulsory" is the only one in the entire document. The word "compel" is used twice, however, both times with negative connotations.


The Right to Refuse to Kill
Groups such as Amnesty International<25> and War Resisters International<26> have advocated for "The Right to Refuse to Kill" to be added to the UDHR. War Resisters International has stated that the right to conscientious objection to military service is primarily derived from, but not yet explicit in, Article 18 of the UDHR: the right to freedom of thought, conscience and religion.<26>

Steps have been taken within the UN to make this right more explicit (see Conscientious Objector); but those steps have been limited to secondary, more "marginal" UN documents. That is why Amnesty International would like to have this right brought "out of the margins" and explicitly into the primary document, namely the UDHR itself.<27>

To the rights enshrined in the Universal Declaration of Human Rights one more might, with relevance, be added. It is "The Right to Refuse to Kill." <28>

– Assistant Secretary General of the United Nations, and Nobel Peace Laureate, Sean MacBride, 1974 Nobel Lecture


Bangkok Declaration
In the Bangkok Declaration adopted by Ministers of Asian states meeting in 1993 in the lead up to the World Conference on Human Rights, Asian governments reaffirmed their commitment to the principles of the United Nations Charter and the Universal Declaration of Human Rights. They stated their view of the interdependence and indivisibility of human rights and stressed the need for universality, objectivity and non-selectivity of human rights.<29>

[EmilyAnne]

5. Thank you! These are not legally binding, are they? The article says this isn't a treaty. Which

is unfortunate. We have violated SO many of those since their creation.

[Norrin Radd]

7. Welcome. You don't it mentioned too often.

I do think it has been influential, despite not being a treaty.

[Hippo_Tron]

6. If they were captured on the battlefield they are protected under the Gevena Convention

Bush tried to say that they are not POW's because they don't wear a uniform but that's bullshit. They are POW's for all intents and purposes and should be treated as such.

And that does mean that they should not be tried in US courts or tried at all for that matter. They are held until the end of the war and then released once the war is over. That said if they were not captured on the battlefield and abducted by the US in some other manner then they should be entitled to rights in US courts.

[EmilyAnne]

8. So, has Obama made a decision about if they are POWs despite their lack of snazzy, coordinated

uniforms? He has planned a 60 million renovation/ expansion of the prison replete with class rooms, activity centers and less cave like rooms. The prison as it is sounds inhumane, so this is a good move. It also signals at the expected fighting that will bring in more POWs. Which is bad. Inevitable, but bad. No easy answers, for sure.

Obama's campaign position on Afghanistan was to have a reassessment of goals along with a major troop surge. Some people seem to be shocked that this is still happening.

BTW- It seems that many of these prisoners were not actually taken off of a battle field, but were brought in by other Afghanis in exchange for reward money. It seems like these cases are in a grey area and at least deserve a review.

[Hippo_Tron]

9. I'm sure the Justice Department is working on it

Remember that Bush left him with the biggest cluterfuck imaginable. In the GITMO case, they "lost" the paperwork on many of these people meaning that they don't even know where they were captured.

As far as being brought in by other Afghanis, that is a very complicated legal issue. On one hand they may be working for the enemy. On the other hand they could be completely innocent and just falsely accused. I'm sure there's some precedent for dealing with civilians accused of aiding the enemy during a war.

[mmonk]

11. The grey area ones need to be released or tried in a court.

[mmonk]

12. Some are POW's some are not.

Some are civilians that are neither Taliban nor al Queda and deserve release or due process in a court.

[mmonk]

10. Our Constitution is tied to the Geneva convention through treaty.

So they are to be held to that standard. The bush administration mixed it all up by committing us to conventional war, calling it all the "war on terror", and denied Geneva convention protocol.

[EmilyAnne]

14. And what system of rights did he then claim to put in place? Was there a new set or was nothing

done and it was just up to the whim of the guards?

I swear I was paying attention to all of this as it was happening, but getting down to the technicalities has convinced me that I am pretty clueless.

[HamdenRice]

13. They are completely different

Sorry that there is so much misinformation floating around DU right now -- especially the false idea that prisoners overseas have US Constitutional rights.

The term, "Constitutional rights" refers to rights that are set out in the US Constitution. Freedom of speech and religion, the rights of criminal defendants, the right to due process (proper court proceedings), the right to equal treatment under the law, the right to vote, and so on, are set out in the first ten amendments to the Constitution, as well as subsequent amendments, especially the ones passed after the Civil War, granting rights to the freed slaves.

Constitutional rights apply to US citizens, as well as to foreigners within the US. But those rights to not apply to all human beings. It should be obvious, for example, that a Chinese peasant in Sichuan or an African mine worker in Johannesburg or a Dutch artist, has no rights under the US constitution. The Constitution ends at the border, as the Supreme Court has said. There are some exceptions, but that's the basic idea. An African mine worker in Johannesburg would look to his own country's constitution. Some countries don't provide many effective rights, like China. Some provide more rights than our Constitution (like South Africa, which gives gays and lesbians the right to marry and provides a right to water, and a right to use one's native language -- and in SA there are like 10 languages!).

International rights are fuzzier. They have been established by treaties, like the Geneva Convention and the International Covenant on Civil and Political Rights. Some apply to the behavior of a government outside its borders (eg when the US launches a war, it is bound by Geneva) and some apply within borders, like the Covenant on Civil Rights. But if a country does not sign the treaty, then those rights might not apply. This is fuzzy because there is also a doctrine that says when most of the world signs a treaty on rights, like the Covenant on Civil & Political Rights, the treaty becomes international law, even for those who don't sign it.

Prisoners of the US in Afghanistan have no Constitutional rights. They have international human rights, however, and in particular Geneva Convention rights. Bush illegally violated their rights, but the Obama administration has stated clearly that it will follow the Geneva Convention in its treatment of prisoners in Afghanistan. But if the US captures someone in Afghanistan and flies them to the US for criminal trial, then that defendant gets US Constitutional rights in his trial.

[EmilyAnne]

15. Thank you so much! n/t

[Unsane]

16. Some DUers think these people should get full US jury trials or something.

Just crazy