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American Military Occupation. The Rules of the Game Part I.I

by Melanchthon Thu Sep 17th, 2009 at 07:09:48 AM EST

On DailyKos, LaFeminista posted the first installment of what I think will be a very interesting series of diaries about the US and international law regarding military occupation. I asked her permission to cross-post it on ET, and here it is:

Military Occupation. The Rules of the Game Part I.I

I intend to write a series of diaries since this is a subject that fascinates me, and is of course of national interest at the moment. I will try and keep the series as dry [hmmm~LF] and as factual as possible

When is an occupation not and occupation, when does it begin and when does it end?

So to start it must be: The rules of the Game Part I.I.

We are/are not engaged in such activity as the US has over 730 military bases around the world.

Diary Rescue by Migeru


The Rules of the Game Part I.I

I suppose we have to start somewhere:

International Law

Well right here we hit a log jam, I might suggest reading this book as a starter

Its something even our Supreme court has tried to dodge, as in Sanchez-Llamas v Oregon

The Court's holding in no way disparages the Convention's importance. It is no slight to the Convention to deny petitioners' claims under the same principles this Court would apply to claims under an Act of Congress or the Constitution itself.

This deals with one of the most important International agreements in existence.

Vienna Convention on the Law of Treaties

Consent to be bound by a treaty expressed by signature
1.The consent of a State to be bound by a treaty is expressed by the signature of its representative when:

(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or
(c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.

Or:

In other words when do we have to abide by a treaty that we signed tends to be just after we signed the treaty or convention.

In reality up until:

Something within it pisses us off and we renege on our duties and hopefully find a real or imaginary loop-hole. hmmm dry not so much

The US is a signatory to the protocols, which only obligates the US to consider ratifying them, they are not binding on a state until after ratification; however, it has generally been US policy to abide by treaties it has signed that have not yet been ratified, this has long been US policy and exceeds the requirements of Article 12 of the Vienna Convention on the Law of Treaties of 1969.

Or until the President retracts the signature as Bush did with the Kyoto Protocol and by refusing to sign the Rome Statute of the International Criminal Court.

OK, for the sake of simplicity lets just assume that when we sign a treaty that we intend to uphold it, unless of course, oh never mind, lets just take it for granted that we will/might/possibly/ dammit...LF you promised to be dry and factual..OK OK.... We Will abide by a Treaty/Convention that we sign.

Right the rules; what have we been involved with so far?

  1. 1907 Hague Convention Respecting the Laws and Customs of War on Land (Hague IV)
  1. 1907 Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague V)
  1. 1907 Hague Convention Relative to the Laying of Automatic Submarine Contact Mines (Hague VIII)
  1. 1907 Hague Convention Concerning Bombardment by Naval Forces in Time of War (Hague IX)
  1. 1907 Hague Convention Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War (Hague XI)
  1. 1907 Hague Convention Concerning the Rights and Duties of Neutral Powers in Naval War (Hague XIII)
  1. 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare
  1. 1936 London Protocol in Regard to the Operations of Submarines or Other War Vessels with Respect to Merchant Vessels (Part IV of the 1930 London Naval Treaty)
  1. 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field*
  1. 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea*
  1. 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War*
  1. 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War*
  1. 1954 Hague Convention for the Protection of Cultural Property in the event of armed conflict
  1. 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction
  1. 1977 Protocol Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflict (Additional Protocol I)
  1. 1977 Protocol Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II)
  1. 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects*
  1. 1993 Convention on the Prohibition of Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction.

We have? You could have fooled me..dry dry dry please LF

1907 Hague Regulations

Art. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army.

The occupation extends only to the territory where such authority has been established and can be exercised.

So if we are there and not controlling anything outside our bases we are technically not occupying anything except the bases. Hey we pay rent, don't we? [I know I know dry and factual see my edit to the introduction ...sheesh]

Article 2, the four Geneva Conventions of 1949

Signatories are bound:
1] In war.
2] Armed conflicts where war has not been declared.
3] Occupation of another country's territory.

Note:
It does not matter what you call it, invasion, liberation, occupation, or administration this still applies.

Yep, until we call them Unlawful Combatants and can hence circumvent any illegality with respect to our activities. Unfortunately this can also be applied to mercenaries hence we called them 'Contractors'. Not dry but factual  ;-P

When is an Occupation and occupation and when does it cease to be an occupation?

1] As soon as you have effective control over the territory.

2] It ends when you no longer have [1] since you have either left or been driven out.
Or put in place a puppet government that allows you to stay-shush now LF.

Hey if you bend the definitions enough we have never really occupied anywhere.

What can you steal do when occupying?

Private property: Is not yours and you have no right to it, and it cannot be confiscated.

Public property: You can seize as much of this as you like with the following proviso: You must give it back when the occupation is over.

However you may be considered not to be occupying and still have troops on the ground, therefore logically you must put them somewhere so bases are acceptable. Ground rent liable?

Note:
This also includes natural resources, that means Oil as well.

Or in other words we will give it back when we are finished with it.

Right before your eyes begin to cross and your brain tries to escape I will stop there....

Rules of the Game Part I.II: The dos and don'ts when occupying [or not] will be published next Sunday.

[editor's note, by Migeru] Originally published on August 23, 2009

Display:
As we would expect, this diary has not received the attention it deserves. Indeed, it has quickly disappeared with the flow of diaries anout progressives disappointed with the government, the government disappointed with progressives, progressives disppointed with progressives and vice-versa...

Her is another map about US military presence abroad:



"Dieu se rit des hommes qui se plaignent des conséquences alors qu'ils en chérissent les causes" Jacques-Bénigne Bossuet

by Melanchthon on Sun Aug 23rd, 2009 at 11:48:10 AM EST
Melanchthon:
it has quickly disappeared with the flow of diaries anout progressives disappointed with the government, the government disappointed with progressives, progressives disppointed with progressives and vice-versa...

This is enough to get you banned from the big Orange.  Behave yourself!

notes from no w here

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Mon Aug 24th, 2009 at 03:36:36 AM EST
[ Parent ]
does not have to follow rules.
And when the US Constitution is still just a Goddam piece of paper then Globo-Corp does indeed rule supreme.  Yes I rallied against the Bush administration and got "Change" which only confirmed my other commitments to the anti-globalist movements a la Alex Jones et al.
by Lasthorseman on Sun Aug 23rd, 2009 at 10:35:38 PM EST
Why doesn't European nations help the U.S. get things going by formally requesting the U.S. military leave Europe?

What say you Germany, Britain, Spain, Italy, Norway, Sweden, Turkey, Belgium, Portugal, Netherlands, and Greece?

Who's going to be the first to send the Yankee Imperialists packing (and thus saving the U.S. some money)?

by Magnifico on Thu Sep 17th, 2009 at 07:29:08 AM EST
Well I am an adult now and I can tell you that I highly am suspicious that there was any rule of law EVER on this planet when it comes to international affairs. Really...The winners of war (or superpowers nowadays) would simply sit down and make a deal between them. Fuck the war crimes and all those international laws about occupation and responsibilities. They are made for losers.
It was like that from the beginning of time and will never change. But it's entertaining to try to pick up all the pieces and strings...So keep up.
As for me morally and legally (in my mind) it is an occupation where ever one inch of the country is occupied by foreign military. And of course USA is Roman Empire of our times. Simple as that. Why would they need to follow rules and laws? Because eventually that kind of arrogance will bring them down sooner rather than later. Just have a quick look in Afghanistan, Iraq...what an utter mess...they are losing authority and respect worldwide and they definitely start to look more like losers. I guess they do not even know how the hell to get out from the mess they created...Is that oil really praiseworthy?


Science without religion is lame, religion without science is blind...Albert Einstein
by vbo on Thu Sep 17th, 2009 at 08:41:54 AM EST
I wonder if someone could make a similar map (I like the non-Mercator map better, by the way) showing the distribution of, say, French troops using the same thresholds.

Only to avoid accusations of America Bashing, of course!

by asdf on Thu Sep 17th, 2009 at 09:52:00 AM EST
Well, Africa would look a lot different.
by the stormy present (stormypresent aaaaaaat gmail etc) on Thu Sep 17th, 2009 at 10:21:24 AM EST
[ Parent ]
Well, there is this:

and this:

To which you must add the French overseas territories:



"Dieu se rit des hommes qui se plaignent des conséquences alors qu'ils en chérissent les causes" Jacques-Bénigne Bossuet

by Melanchthon on Thu Sep 17th, 2009 at 10:32:58 AM EST
[ Parent ]
So if we are there and not controlling anything outside our bases we are technically not occupying anything except the bases. Hey we pay rent, don't we?

Do they? Everywhere?
I don´t know the situation today but at least in the late 1980s Germany paid the USA around $1 billion per year for "Stationierungskosten" (cost for bases etc.).

Don´t have any link for this because at least in the German federal budget this item is very well hidden.
I researched it in the 1990s just out of curiosity.

Ha, but found this.

It´s called "Bilateral Cost Sharing" today. :)

And so the German "contribution" in 2003 was around $860 million. Most of it in "indirect support". As in: waived rents, taxes and other forgone revenues.
(In 2000 it seems Germany "contributed" around $ 1.2 billion.)

So, although the number of US troops in Germany went down quite a lot, the German "contributions" didn´t went down that far.
(From around 300000 during the Cold War to around 70000.)

by Detlef (Detlef1961_at_yahoo_dot_de) on Thu Sep 17th, 2009 at 02:56:46 PM EST
The Germans waive the rent to $0, or perhaps €0,  and we then proceed to pay that.

I've been accused of being a Marxist, yet while Harpo's my favourite, it's Groucho I'm always quoting. Odd, that.
by BruceMcF (agila61 at netscape dot net) on Mon Sep 21st, 2009 at 08:03:36 PM EST
[ Parent ]
This webcast makes an interesting listen for legal views on international treaties, US implementation of them and hurdles that may be faced by criminal prosecutors.  Although it specifically addresses the recently announced investigations of CIA employees accused of torture, the comments on treaties and rule of law are worth hearing. The law professor guest is a colleague from long ago.  

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears
by Gringo (stargazing camel at aoldotcom) on Thu Sep 17th, 2009 at 11:55:07 PM EST
I don't see why it has to be so complicated. "The lawyer said it wasn't illegal" and "but it wasn't illegal according to the laws of the jurisdiction where it happened" weren't considered valid defences at Nürnberg, they weren't considered valid defences when prosecuting Pinochet and his thugs, they weren't considered valid defences when prosecuting Milošević, Karadžić and the rest of the Yugoslav thugs, they will not be considered valid defences if and when somebody gets around to prosecuting Mugabe and what's-his-name in Sudan.

So why should we accept that they are valid defences when prosecuting Americans?

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Sep 19th, 2009 at 02:30:59 PM EST
[ Parent ]
I don't understand exactly what your are asking, or saying.  As I understand the conversation on the web, there are several complications that could arise relative to the charges against the CIA employees being investigated.  The primary one seems to be that they were just following orders, or instructions of a superior. While that may/has not count(ed) in some jurisdictions, apparently it can be a solid defense in the US where any charges will be filed and cases tried.  This is not to say that these complications will lead to a prosecutive failure, but they could.  Things are not always black and white, often just shades of gray. Personally, I would forget about Nurnberg unless it causes some comfort. Those particular circumstances are not likely to repeat themselves in scope or justification any time soon and if they do, the US cases being fought over these days will pale by comparison. In fact, IMHO they pale in comparison to other cases already. To us they are justifiably a big deal, but another Nurnberg trials situation, etc, is not likely to occur over this. The US problem has to be sorted out in the US according to US law using the US justice system, and it can be.

My point in referencing this piece was not so much because of the on-going investigation of CIA employees for torture (a positive though limited step) but to highlight the nature of international treaties, amendments, ratification, and the requirement in the US (and possibly most other countries) for local implementation via statute.

 

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Sat Sep 19th, 2009 at 04:14:36 PM EST
[ Parent ]
I just dont get the "They were just following orders" argument, it seems to be entirely in opposition to my (Admittedly sketchy but logical) understanding of US law.

Article Six of the United States Constitution - Wikipedia, the free encyclopedia

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;

(my Bold) So any treaty that is entered into by the US is the supreme law of the land, on par with the constitution. The Torture convention, is not just signed by the US but also ratified by the apropriate political authorities. so qualifies (convention and treaty are interchangeable terms)  and from that

UN Convention Against Torture

  1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
  2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
  3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

So it completely escapes me how it can even be suggested that CIA agents can escape on those grounds.

Any idiot can face a crisis - it's day to day living that wears you out.

by ceebs (ceebs (at) eurotrib (dot) com) on Sat Sep 19th, 2009 at 05:03:14 PM EST
[ Parent ]
I think what you may be missing is the fact that laws implementing treaties are subject to interpretation and further that the defense in a criminal case may raise issues of law that override the letter of a treaty.  E.g., just because a treaty says thou shalt not kill does not mean everyone charged with or investigated for killing will be convicted. There are defenses to the charge.

In the case of torture, the definition is not completely agreed upon. While you and I may call something torture, a government, i.e., the one in the USA, may not. While many have long held that waterboarding is torture, the US Government, during the Bush Administration, officially stated it was not and directed government employees to behave as if it were not.  Now, suppose the accused CIA employees were acting upon a similar instruction.  Unfortunately, the wording of the treaty (particularly para 3), though it appears iron clad, potentially becomes full of holes when subjected to the law in local national jurisdictions.

  Please understand, I'm not saying the CIA employees will be able to escape justice using this defense. I am only providing my layman's interpretation of the possible legal defense set forth in the interviews referenced. I know almost nothing about the cases that are being investigated.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Mon Sep 21st, 2009 at 12:55:55 AM EST
[ Parent ]
Gringo:
In the case of torture, the definition is not completely agreed upon. While you and I may call something torture, a government, i.e., the one in the USA, may not. While many have long held that waterboarding is torture, the US Government, during the Bush Administration, officially stated it was not and directed government employees to behave as if it were not.

I understand it is a possible legal defence, but I do not see how any government, even with the most cursory investigation of the history and legal precedent could say this with any  sense of reality, and any departmental lawyer when handed this decision should have said to the people involved that the ruling was legaly dubious, rather than said "Well the department of justice says its ok, so lets go ahead" and should have cried off. The CIAs lawyers would have noted that the US government had declared waterboarding to be torture in the cases of German and Japanese members of their armed forces (Plus Norwegian and French police collaborators) in the aftermath of WWII, as a more recent example, a US sheriff and his associates had recieved ten years imprisonment for waterbording suspected criminals, from The Ronald Reagan Justice department.

Any idiot can face a crisis - it's day to day living that wears you out.

by ceebs (ceebs (at) eurotrib (dot) com) on Mon Sep 21st, 2009 at 12:21:19 PM EST
[ Parent ]
Ceebs, I agree, but we'll have to wait and see what becomes of the investigation. The justice system will, should a case go to court, provide the accused the same guarantees and opportunities it should provide anyone charged with a serious crime; therefore, the outcome is usually in doubt until the judge's gavel falls.

 

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Mon Sep 21st, 2009 at 11:19:12 PM EST
[ Parent ]
My point is that some rules are normally held to be beyond the power of any legislative body to sign away. In those cases where such rules have been violated, it is incumbent upon the first civilised government to seize power in the relevant jurisdiction to prosecute these violations. Indeed that is one of the litmus tests of civilisation.

So it fundamentally does not matter that Congress legalised torture, because Congress never had the authority to legalise torture. And if the US constitution gives Congress the right to legalise torture, then the US constitution is in the wrong - because the people of the US never had the authority to give their elected representatives the authority to legalise torture.

And if you object to citing Nürnberg as a precedent, you can strike that from the list. Still leaves a sufficiently solid precedent to go by. Certainly you would not argue that the crimes committed by Pinochet or various assorted Yugoslav war criminals were orders of magnitude more serious than the crimes here under consideration?

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Sep 19th, 2009 at 08:30:24 PM EST
[ Parent ]
I don't object to Nurnberg or the other references. Just see them as somewhat irrelevant.

Do you have a civilized government in mind? If so, where has it been throughout the "civilized" history of mankind?

Please don't take me wrong.  I agree with your ideals; things should be that way, but it ain't gonna happen.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Mon Sep 21st, 2009 at 01:04:10 AM EST
[ Parent ]
Do you have a civilized government in mind? If so, where has it been throughout the "civilized" history of mankind?

Civilisation is obviously a matter of degree, and no actual state in history has been what I'd call "fully civilised." But on this particular subject, I would say that the British, French and Americans in the immediate aftermath of the second world war were more civilised than contemporary Americans. Of course you can find other issues where this is not the case (colonialism, institutionalised racism, treatment of the poor, ill or mentally infirm, to name but a few). But on this particular topic, things have been slipping.

Please don't take me wrong.  I agree with your ideals; things should be that way, but it ain't gonna happen.

And I understand that. I just think it should be made clear that the reason it's not going to happen is that certain named political actors are determined and able to obstruct justice, not because there is a lack of jurisprudence on the issue or because their pseudo-legal defences have any merit.

I can accept that we're going to lose the political battle over whether due diligence will be observed in the investigations of Anglo-American torture programmes. What I will not accept is the fiction that due diligence was exercised and there was nothing there that could be prosecuted.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Mon Sep 21st, 2009 at 04:29:33 AM EST
[ Parent ]
The French in the immediate aftermath of WWII ? more civilized than the US ? You do mean the Indochina & Algeria wars France, right ?

Un roi sans divertissement est un homme plein de misères
by linca (antonin POINT lucas AROBASE gmail.com) on Mon Sep 21st, 2009 at 09:45:30 AM EST
[ Parent ]
I beg to disagree: the Algeria war was not in the immediate aftermath of WWII. Between 1945 and 1947, we just massacred 15 OOO in Algeria, 40 000 in Madagascar, 6000 in Haiphong (Tonkin) and a few dozens elsewhere... Isn't it civilised?

"Dieu se rit des hommes qui se plaignent des conséquences alors qu'ils en chérissent les causes" Jacques-Bénigne Bossuet
by Melanchthon on Mon Sep 21st, 2009 at 10:24:01 AM EST
[ Parent ]
What I will not accept is the fiction that due diligence was exercised and there was nothing there that could be prosecuted.

I had the same feeling every time I investigated a violent crime and no legal action was taken because an attorney declined to prosecute.  Sometimes the attorney simply feared the case would be lost due to lack of sufficient evidence.  In some cases I knew he may have been correct, but there was nothing else I could do.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Mon Sep 21st, 2009 at 11:51:35 PM EST
[ Parent ]
I don't understand why Nuremberg isn't relevent, could you explain?

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Mon Sep 21st, 2009 at 11:20:05 AM EST
[ Parent ]
I just believe that in this tangled, chaotic world we live in history continually repeats itself, regardless of humanity's best intentions.  While Nurnberg and other historical cases involving prosecutions for war crimes may be recalled, I would predict that court decisions in the current cases will turn upon more recent events and court decisions.  

The other thing is that justice is not rendered exactly equally with regard to location and time.  Circumstances change even though the crimes remain basically the same. When circumstances change, laws and treaties may be viewed differently.  My opinion, take it or leave it.  

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Mon Sep 21st, 2009 at 11:43:04 PM EST
[ Parent ]


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