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International Law - Guantanamo Bay Detention Facility

Essay by   •  October 1, 2011  •  Case Study  •  2,378 Words (10 Pages)  •  1,726 Views

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When President Barack Obama took the oath of office, he was diligent in making change. His first step, as extreme as it was, was the closing of the Guantanamo Bay Detention Facility. The GBDF held numerous notorious perpetrators of war crimes. War crimes are defined as any crimes, such as genocide or the mistreatment of prisoners of war, committed during a war and considered in violation of the conventions of warfare. The purpose of war ethics is to decide what is right or wrong both for individuals or countries, and to contribute to debates on public policy, government and individual action. War ethics also leads to formal codes of war (Geneva conventions), implementation of rules and punishment of soldiers and other war crimes. Writers on ethics of war fall into three major categories: At one extreme are the realists who believe that all is fair in war. At the other extreme are pacifists who believe war is wrong and unethical in its very nature because it involve killing of innocent people. In between the two extremes there is a more moderate view, which lists the conditions under which a country may fight an ethical war. Advocates of this view follow the just war theory. This theory details the instance when waging war is justified and what a nation should do when in war.

Terrorism is an immoral way of achieving an end. It involves systematic use of terror or unpredictable violence against government, public or individual to attain an objective. This objective may be political or financial. Terrorism can either be domestic or international depending on the origin, base, and objective of the terrorist. The main objective of terrorist usually is to attract attention and or spread fear among people. This fear and attack by terrorist leads to retaliation by the authorities, which will start a cycle of violence. Mainly due to these reasons terrorism is regarded unethical whether attack on civilians, public or military personal. The biggest problem faced by United Nation and other international organization is that they are not able to provide a comprehensive definition of terrorism, they have not been successful in differentiate between terrorism and freedom fighter.

According to a report by Rutgers College, "Does the fact that one side terrorist is usually another's freedom fighter mean that there is no possibility of agreeing on ethical norms applicable to armed conflicts between governments and their opponents. There are no easy answers to this issue. We cannot simply condemn all violence nor can we accept the view that ethical judgments are irrelevant." "Terrorist activities have been going on for centuries but they have come into spotlight now in a big way due to the September 11, 2001 attacks on US. It was the first attack on us main land ever. More than 3,000 people died and some 6,000 sustained injuries and hundreds of thousands of people suffered physical and psychological effects. This attack shows the need to solve the problem of terrorist and freedom fighters." I read this in an article on www.iss.co.za.

The history of war crimes tribunals only began after World War II, with the establishment of the Nuremberg and Tokyo tribunals. Although there were attempts by the allied powers after World War I to provide for the prosecution of war crimes committed by the axis powers, no prosecutions by an international tribunal ever took place. A commission established in 1919 by the victorious powers recommended the prosecution of enemy nationals, even leaders, guilty of offences against "the laws and customs of war or the laws of humanity." At the end of the war, both the Treaty of Sèvres (between the allied powers and Turkey) and the Treaty of Versailles (the allied powers and Germany) provided for the prosecution of central power war criminals (ie Turkish and German), including Kaiser Wilhelm II, before international tribunals. Although the idea of prosecutions by an international tribunal gained hold, no such prosecutions actually ever occurred. Indeed, no international tribunal was established. Kaiser Wilhelm was given sanctuary in the Netherlands, and only a few prosecutions of German war criminals by the German Supreme Court took place. Turkish war criminals were granted amnesty in accordance with the Treaty of Lausanne.

When World War II was over, the defeat of the axis powers created an historic opportunity for the establishment of the first international precedent for the prosecution of war criminals. Shocked by the extent and horrors of the atrocities committed by the Nazis and the Japanese, and empowered by their status as victor nations, the allies signed an agreement creating the International Military Tribunal (IMT) for the prosecution of major war criminals of the European axis. This was soon followed in the Far East by the establishment of a tribunal for the prosecution of high-ranking Japanese accused of war crimes.

By the authority of the allied powers, the tribunals prosecuted Japanese and German leaders for crimes and against peace, crimes against humanity, war crimes. Prosecuting the low level enemies were no concern to the tribunals, they were more focused on major role players, those individuals that were responsible for instigating and planning the atrocities committed during the war. The tribunal is staffed by judges and prosecutors. The tribunals adhered to a certain basic principle of justice and they were criticized for failing to live up to the standards of criminal justice. One such action, for example, is that there are no international participation in the establishment of these tribunals.

Importantly, the tribunals were restricted to the prosecution of war criminals belonging to or representing the enemy powers for crimes committed by them during the war. They had no authority to prosecute war crimes committed by any members of the allied forces. For these reasons, they were criticized as constituting little more than 'victors' justice'. This was particularly the case with the Tokyo tribunal. Many criticized the hypocrisy of prosecuting Japanese leaders for war crimes, when the Americans were guilty of the nuclear bombings of Hiroshima and Nagasaki.

It is a fundamental principle of criminal law that there can be no crime without a law, and no punishment without a law specifically providing for such punishment (nullen crimen sine lege). In 1945, at the time of the establishment of the Nuremberg and Tokyo tribunals, there was very little precedent or law providing for the criminalization of war crimes or the act of waging aggressive war. The whole concept of 'crimes against humanity' was largely unknown. Though international law at the time had outlawed aggressive war to an extent and did attempt to regulate conduct

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