America should hand over the murder soldier

Originally Posted by Raptor Buddha

Where did I ever 1) define fair trial or 2) state that my characterization of what a fair trial could be is the only one that could be countenanced? What I do hold is that it a trial would be plainly unfair on its face for the fact that the nation’s leaders have already characterized the case before there’s been a hearing and based on a system of religious law.

You've implied enough. You have dismissed their judicial system for being different than the secular one you endorse. Basically, you are biased. If you are not, then it is not very apparent. Understand that people across oceans do not have to meet your criteria for what you view as a fair trial, or unfair trial in this case. To them, a trial involving religion could be fair. They are completely within their rights to act as such. As for the last part, the same can be said for any system of law.

Second, I suppose if you want to take the position that one doesn’t have the right to judge a legal system based upon human rights violations, then you’re welcome to do so.

Please, stop the loaded implications. I am getting tired of your relentless and baseless assumptions.

I personally hold that moral relativism can only get one so far, and makes for fairly bad jurisprudence. If you’re willing to accept inequitable results in defense of the principle of moral relativism, then that’s fine. I don't accept that.

I don't believe in moral relativism or absolutism, however, there are certain scenarios where reliance on one or the other is not avoidable.

Radek: I'm curious, does this mean you don't think anyone should judge any other legal system? And why do you think so?

Does this mean that we should not call the Armenian Genocide a genocide, as the Turkish government would have? It was entirely legal when it occurred, was it not? I know this question will strike close to home for you but I do not ask this to rile you. I ask this because I want to know when, in your opinion, it is right and wrong to judge another government, even if they have different values from us.

I think we can both agree that what happened to the Armenians of the Turkish Empire was horrible and should never have happened. They were killed simply for being born which I'm sure we'll both agree is wrong. But to me, what you're saying right now is that we should not think this of them. If this is not the case, I'd ask you to clarify your point.

Originally Posted by Tallgeese

You've implied enough.

…Ok?

You have dismissed their judicial system for being different than the secular one you endorse. Basically, you are biased. If you are not, then it is not very apparent. Understand that people across oceans do not have to meet your criteria for what you view as a fair trial, or unfair trial in this case. To them, a trial involving religion could be fair. They are completely within their rights to act as such. As for the last part, the same can be said for any system of law.

Of course I am biased for a system of secular justice—and I think this bias has a fair basis in legal history. I can’t say that it’s a bias I am particularly ashamed of—particularly when we’re discussing a court which, as I have stated, affirmed a death sentence for journalists convicted of blasphemy and upheld that homosexuality is a capital offense.

In terms of whether they are in their rights to apply their law, for reasons mentioned above they are not. We can discuss whether that is ethical—but as a matter of law it’s a closed matter. You are more than welcome to submit evidence to rebut that conclusion.

Furthermore, it’s not really my criteria—it’s the criteria established by a significant portion of the world, and tacitly by Afghanistan in being a signatory to the above bilateral agreement.

Please, stop the loaded implications. I am getting tired of your relentless and baseless assumptions.

I apologize if my characterizations are baseless. If you would, please point which of my statements were relentless or baseless so I can either qualify them or provide them with a foundation.

I apologize if I've angered you, sir. I stand by what I've said, but none of it was intended to cause anybody offense.

Originally Posted by Avalanchemike

Radek: I'm curious, does this mean you don't think anyone should judge any other legal system? And why do you think so?

I think that when two cultures are very, very far away, that it is not fair to try to stack them up against each other and compare them. As for how I stand legal systems and how they interact with each other around the globe, believe it or not, I agree with mostly Raptor Buddha here. However, 16 men, women and children were killed in Afghan territory in this case. It doesn't matter what the military law concerning this kind of scenario is. Afghan people were killed in Afghan territory, so they should be the ones to decide what happens. If you're part of a group of friends and one of them walks into another man's home and slaughters part of his family, what you say doesn't matter. What they do does. And if they happen to be religious, then so be it.

Does this mean that we should not call the Armenian Genocide a genocide, as the Turkish government would have? It was entirely legal when it occurred, was it not?

Not really. Armenians being killed on Armenian soil is not legal. Where the heck did you get this idea, man?

I know this question will strike close to home for you but I do not ask this to rile you. I ask this because I want to know when, in your opinion, it is right and wrong to judge another government, even if they have different values from us.

The Turks did not contain their killing to Turkish soil (a lot of it was on Armenian soil, actually - how do you think they got Mt Ararat). All of these things have to be looked at case-by-case. There is no absolute or relative, although at certain times that is questionable. I am proposing that this is one of those times.

I think we can both agree that what happened to the Armenians of the Turkish Empire was horrible and should never have happened. They were killed simply for being born which I'm sure we'll both agree is wrong. But to me, what you're saying right now is that we should not think this of them. If this is not the case, I'd ask you to clarify your point.

Two different, separate acts of war. I find it hard to see them as comparable. And to be reassert my position, I have repeatedly indicated that I believe that cultures that are far away have a hard time understanding each other, judicial systems included. Armenia and Turkey were neighboring countries. They can understand each other fine, which is one of the circumstances that has changed.

Raptor Buddha: I didn't skip your post, I was typing this one when I saw yours. I'll reply to you soon.

Edit: This post took like half an hour to write, so it is a little bit behind the last couple of posts. Sorry!

Originally Posted by Tallgeese

You've implied enough. You have dismissed their judicial system for being different than the secular one you endorse. Basically, you are biased. If you are not, then it is not very apparent. Understand that people across oceans do not have to meet your criteria for what you view as a fair trial, or unfair trial in this case. To them, a trial involving religion could be fair. They are completely within their rights to act as such. As for the last part, the same can be said for any system of law.

Everyone is biased. There is no such thing as pure objectiveness in these discussions, because everyone is biased by their own experience. It is of course the goal in any discussion of philosophy to distance oneself from personal bias, and speak and reason as objectively as possible, but this is an ideal, rather than a reality. So let's put that notion aside and just assume for the sake of argument that yes, everyone is biased, but we are also working toward discovering an objective truth that can be safely applied to as many people as possible (in other words, everyone). How we define terms such as "safely" and "objective truth" is really not the argument here, and distracts from the main point of the discussion. In my biased opinion.

Anyway, I don't really feel the drive to quote every single sentence I find contentious, but I will briefly summarize my response as thus: the discussion thus far seems based on the notion that America, having acted in an imperialistic, domineering, and at times brutal manner over the last 50-100 years justifies like response from other nations toward American nationals, military or otherwise, regardless of circumstance. What I mean by this:

1. Because America has acted this way, it is a morally reprehensible nation and therefore, all its citizens are at the least guilty of condoning these actions and are thus responsible for them.
2. Given this guilt, when committing crimes abroad, Americans should be subjected to the harshest penalties available as recompense for this universal crime of being morally reprehensible.
3. Guilt in regard to these crimes is self-evident before trial, in a process of guilty until proven innocent in the Court of Public Opinion.
4. Regard for life and human rights (which can be cited in the Universal Declaration of Human Rights, a document signed by the United States; I cannot find if Afghanistan has signed it, but they may have alternatively signed the Cairo Declaration on Human Rights in Islam, a very similar document which accounts for Shari'ah Law) comes second in a world where Americans who commit crimes deserve to be made examples of.
5. It is better to perpetuate the mistakes of the past, and use them as justification for further injustice (itself a relative term, sure, but let's not nitpick), rather than recognize the following: 1.) International Politics from 1945 to 1991 were overwhelmingly dominated by the USSR/US Cold War, in which those two nations and many others committed widespread acts of political meddling in the fight to spread or quarantine communism; 2.) This era has largely come to an end; 3.) The United States, as the next dominant world power in history, has inherited the burdens that past hegemonies have left behind; 4.) Much of the state of the world today can be traced to European Imperialism, yet the world today is blamed largely on the United States.

In essence, what I'm getting at is that this issue is not as simple as "America did bad things, therefore Americans should be punished" nor is it as simple as "American military law trumps Afghan law because he's a soldier" or any other broad-based argument for or against the idea of extradition. In fact, this issue is so overwhelmingly complex, I fear my post here has oversimplified matters, and dangerously so.

I do not condone the murder of anyone. When this news broke, I was very sad and ashamed. I personally find it very sad that the United States has managed to make people in Afghanistan see the Taliban as the better option, because arguably the Taliban was extremely cruel and brutal. However, as one Afghan man put it in an article I read, "At least they could be reasoned with; the Americans have no respect" for their Islamic tradition. My father, himself an ignorant man who would likely vote for Republicans even if they said at a campaign rally, "Anyone without a college education will not receive social security anymore" (an obviously impossible thing, but I'm making a point about his bias) was very upset when he saw an American flag being burned on television by Afghanistan citizens who were upset about the shooting and the recent Qu'ran burnings. I tried to explain to him the absolute cultural congruity of our burning their books and their burning our flags. He did not see it. I do.

Not all Americans are the same, nor are we all represented by the actions of our government or our military. It is dangerous to apply the same bias to all of us, because as the third most populous nation on the planet in objective numbers, and relatively speaking, the first or second most diverse nation on the planet (it's between us and India), there is no universal lens through which you can look at us.

Therefore, I reject the idea that this man inherently "deserves" any particular punishment at this point. After a trial on the terms I see as fair, my own nation's terms that I believe in through a lot of evidence and knowledge, I would condone a verdict of guilty if it were the correct one. However, none of what I've argued takes into account the possibility of mental illness, or the man's victimization by a corrupt military system over which he exercised no control. Are these things true? Perhaps, and perhaps not. That's the point of a trial and an investigation. As civilized beings, in the "21st Century" where barbarism has no place, making an example of people is such a barbarism. It has no place in our world.

Originally Posted by Raptor Buddha

…Ok?

A question is a non-argument, so okay!

Of course I am biased for a system of secular justice—and I think this bias has a fair basis in legal history. I can’t say that it’s a bias I am particularly ashamed of—particularly when we’re discussing a court which, as I have stated, affirmed a death sentence for journalists convicted of blasphemy and upheld that homosexuality is a capital offense.

And this is where the problem lies. Just as you don't feel ashamed, they don't either. If it is someone's custom to prosecute with religious reasoning, then you should make sure you don't take a ♥♥♥♥ in his yard. Don't blame the judges, blame the people who kill and end up in a courtroom. Also, just because some crazy religious kook sentenced a homosexuals to death or convicted a journalist of blasphemy doesn't mean that any judge with religious influence sitting on his shoulder is going to do the same. Do not generalize.

In terms of whether they are in their rights to apply their law, for reasons mentioned above they are not. We can discuss whether that is ethical—but as a matter of law it’s a closed matter. You are more than welcome to submit evidence to rebut that conclusion.

Wait, weren't you the one who said Americans shouldn't be punished for the acts of their government? Right here, in fact:

Originally Posted by Raptor Buddha

So let me see if I understand you correctly. Because the United States government has behaved unethically in the past then it's suddenly alright to withhold giving a fair trial to a US citizen? Usually governments are held liable for the actions of their agents, but for the life of me I can't think if a situation where the inverse is true.

So tell me, why can't a Afghan judge prosecute again? Because in the past, the government has done the things you described above? If I've made a mistake here, feel free to point it out.

I apologize if my characterizations are baseless. If you would, please point which of my statements were relentless or baseless so I can either qualify them or provide them with a foundation.


Second, I suppose if you want to take the position that one doesn’t have the right to judge a legal system based upon human rights violations, then you’re welcome to do so.

I apologize if I've angered you, sir. I stand by what I've said, but none of it was intended to cause anybody offense.

Look man, I don't have a problem with you. It's just that you sometimes make these ridiculous implications aimed at someone you're arguing with. It's called demonizing the enemy. It is, in fact, quite... just, look here:

Second, I suppose if you want to take the position that one doesn’t have the right to judge a legal system based upon human rights violations, then you’re welcome to do so.

I never said anything about not being able to judge legal systems based on human right violations. I said that it becomes harder to judge (I did say "you can't" or something like that, my bad) a different culture's aspects, like the judicial system, if it is far away and their culture has nothing in common with yours.

Originally Posted by Xizor

Everyone is biased. There is no such thing as pure objectiveness in these discussions, because everyone is biased by their own experience. It is of course the goal in any discussion of philosophy to distance oneself from personal bias, and speak and reason as objectively as possible, but this is an ideal, rather than a reality. So let's put that notion aside and just assume for the sake of argument that yes, everyone is biased, but we are also working toward discovering an objective truth that can be safely applied to as many people as possible (in other words, everyone). How we define terms such as "safely" and "objective truth" is really not the argument here, and distracts from the main point of the discussion. In my biased opinion.

I do not believe this at all. I believe myself to be unbiased in most circumstances, which is why I'm not playing favorites between America and Afghan here. I merely believe that Afghan courts should take care of it as the murder of Afghans on Afghan soil. That is the main issue here. I also believe that there are many others who are unbiased or capable of being unbiased.

The rest of your post is well-reasoned, however.

Originally Posted by Tallgeese

And this is where the problem lies. Just as you don't feel ashamed, they don't either. If it is someone's custom to prosecute with religious reasoning, then you should make sure you don't take a ♥♥♥♥ in his yard. Don't blame the judges, blame the people who kill and end up in a courtroom. Also, just because some crazy religious kook sentenced a homosexuals to death or convicted a journalist of blasphemy doesn't mean that any judge with religious influence sitting on his shoulder is going to do the same. Do not generalize.

The accusation of generalization is completely and utterly irrelevant.

While arguably, a judge with religious influence is completely capable of giving a fair trial, a country where the international community is fully capable of recognizing the inhumane nature of the legal system itself in place cannot reasonably guarantee a fair trial.

Furthermore, considering flagrant human rights violation enabled and promoted by the current form of the law, I'd flat out state that the country in question has no rights to judge anyone at all, not even its own citizens, due to the inherently inhumane quality of its legal system.

So tell me, why can't a Afghan judge prosecute again? Because in the past, the government has done the things you described above? If I've made a mistake here, feel free to point it out.

See above. Also, considering the mongering of the government and the acknowledged corruption in all branches of government, I'd venture to say that they specifically will fail to meet the "the right to be heard by a competent, independent and impartial tribunal".

Look man, I don't have a problem with you. It's just that you sometimes make these ridiculous implications aimed at someone you're arguing with. It's called demonizing the enemy. It is, in fact, quite... just, look here:
I never said anything about not being able to judge legal systems based on human right violations. I said that it becomes harder to judge (I did say "you can't" or something like that, my bad) a different culture's aspects, like the judicial system, if it is far away and their culture has nothing in common with yours.

Irrelevant. Afghanistan is a signatory to numerous treaties as a member of the United Nations, with the United States, NATO, and numerous other national and international actors.

The rights and guidelines promoted by the United Nations are generally done so because the international (read people of all different cultures and countries) community accepts these guidelines as being the closest to a fair and objective standard that currently exists.

By signing treaties accepting these rights and guidelines, the current legal system of Afghanistan is in direct contravention of what it has stated it will do. Therefore, considering their blatant disregard for anything approaching what their country has legally agreed to attempt, I fail to see how we ourselves are under any form of obligation to even recognize the judicial system of Afghanistan as being legally able to try anyone.

I do not believe this at all. I believe myself to be unbiased in most circumstances, which is why I'm not playing favorites between America and Afghan here. I merely believe that Afghan courts should take care of it as the murder of Afghans on Afghan soil. That is the main issue here. I also believe that there are many others who are unbiased or capable of being unbiased.

Considering as Raptor said regarding treaties, Afghanistan has already essentially signed over any rights it has to try American Military Personnel.

Of the two, I'd certainly trust the American government over the Afghan one.

If given any form of choice, I'd remand him to the International Criminal Court under war crimes charges.

Originally Posted by GARlock

The United States has been in the business of setting up puppet governemts since Vietnam, that much is obvious.

Way before that. The US set a puppet state up in Iran in the 50's and in much of Latin America in the 20's. Heck, the first example of a US puppet state could arguably be the Republic of Hawaii, and that dates back to the 1890s.

Originally Posted by Tallgeese

And this is where the problem lies. Just as you don't feel ashamed, they don't either. If it is someone's custom to prosecute with religious reasoning, then you should make sure you don't take a ♥♥♥♥ in his yard. Don't blame the judges, blame the people who kill and end up in a courtroom.

First, I am not blaming the judges here, I am criticizing a legal system that has adopted consistent rulings that are against foundational principles of international human rights law. Principles quite clearly contained in the UN Universal Declaration of Human Rights (which, note, has been adopted by the government of Afghanistan) including Articles 2 and 18 affording freedoms and rights without respect to religion, and in regards to the execution of people killed for blasphemy and homosexuality Articles 5 and 11 which prohibit cruel punishment and prohibit punishment in excess of the maximum allowable punishment when the crime was committed. It’s not merely an issue of cultural relativism. The judiciary is being judged against the standards that the government of Afghanistan itself has adopted. Second, why should I blame this killer as of this time? I thought that was what a trial was for—to determine guilt as a prerequisite to assign blame. Now, in the instant case, I don’t think the defendant is making the claim that he did not commit the killings in question. What is being debated, however, is whether the defendant was sane enough to have a culpable mental state in order to fairly assign blame. On the basis of some of the factors I listed above, this insanity defense isn’t precisely akin to the twinky defense, but rather seems to be colorable and speaks to systemic negligence on the part of military mental health care providers (EDIT: and in a further update, this is precisely what his defense attorney is arguing). At the very least I am going to withhold blame until the ruling of the fact finder.

Also, just because some crazy religious kook sentenced a homosexuals to death or convicted a journalist of blasphemy doesn't mean that any judge with religious influence sitting on his shoulder is going to do the same. Do not generalize.

The crazy religious kook judge that you refer to is in actuality the entirety of the Afghan Supreme Court—the highest judicial and interpretive body in the land. If I generalize it is because appellate court rulings are in themselves generalizable—that is part of the point of having a supreme court in the first place: creating a legal precedent on which courts across the nation can reasonably rely. I am not analyzing the individual habits and predilections of particular judges—or even a group of judges—but instead the Afghan legal system as a whole through its highest legal authority.

Wait, weren't you the one who said Americans shouldn't be punished for the acts of their government? So tell me, why can't a Afghan judge prosecute again? Because in the past, the government has done the things you described above? If I've made a mistake here, feel free to point it out.

I’m sorry, I fail to understand the contradiction or point you’re trying to raise by quoting my argument, so I will simply answer the question you raise to the best of my ability—feel free to rephrase the point if you so wish.

So, why can’t there be an Afghan prosecution? For the very plain reason that Afghanistan has no jurisdiction—and any claims that the government might have had to such jurisdiction were specifically disclaimed in the Status of Forces agreement signed by the United States and Afghanistan. If you would like to see the legislative history of this agreement and a restatement of the relevant provisions, feel free to look at this article p. 12 for that information. Regardless, Afghanistan specifically affords jurisdiction of criminal prosecution of members of the US armed services to the United States. This is a cut and dry legal question. Afghanistan may desire extradition, but as far as I am aware they have no legal rights to demand it.

I never said anything about not being able to judge legal systems based on human right violations. I said that it becomes harder to judge (I did say "you can't" or something like that, my bad) a different culture's aspects, like the judicial system, if it is far away and their culture has nothing in common with yours.

We don’t even need to approach the issue of cultural differences. As noted above, we can far more easily analyze their judiciary based upon the international treaties and principles ratified by their government and how those same treaties are upheld in a court of law. As noted above, they are upheld with, at best, a considerably liberal interpretation.

Look man, I don't have a problem with you. It's just that you sometimes make these ridiculous implications aimed at someone you're arguing with. It's called demonizing the enemy.

Given the fact that I mentioned the human rights violations above without any dispute, and given the fact that your argument was that the Afghan judicial system cannot be judged because:

…we don't have the right to judge their judicial system as much as they don't have the right to judge ours.

Then I think it was fair (if admittedly leading) to imply that therefore you don’t believe one has the right to judge a judicial system based on human rights violations. However, to diminish any potential mischaracterization, I’ll ask: do you believe that human rights violations are criteria that can be used to judge the fairness and equity of a judicial system?



By the by, I am ashamed that I did not contest this point earlier, but you are incorrect in your characterization that there is no international law that defines what a fair trial is. I am referring specifically to this assertion:

Let me make something clear here: there is no international law that defines what a fair trial is.

If you will kindly look to the International Convent on Civil and Political Rights (an agreement to which the UN Universal Declaration of Human Rights was an antecedent--both texts being adopted by the Afghan government) and look to Article 14(1) you'll find a cursory definition of what a fair trial entails--note especially the requirement for the impartiality of the fact finder. One can argue certainly about how effective a definition this is, but I don't think it's arguable that such a definition exists and that such a concept has through international agreement been tacitly adopted by Afghanistan.

Originally Posted by Great White North

The accusation of generalization is completely and utterly irrelevant.

Don't pass off your reality as the reality.

Irrelevant. Afghanistan is a signatory to numerous treaties as a member of the United Nations, with the United States, NATO, and numerous other national and international actors.

Please stay out of conversations that have nothing to do with you. Also, calling things "irrelevant" (which you have done numerous times) doesn't actually make them irrelevant. Think before you speak.

While arguably, a judge with religious influence is completely capable of giving a fair trial, a country where the international community is fully capable of recognizing the inhumane nature of the legal system itself in place cannot reasonably guarantee a fair trial.

And you equate a judge with a country and make no effort to discriminate between them. There really is no need to further debate anything with you.

Originally Posted by Raptor Buddha

First, I am not blaming the judges here, I am criticizing a legal system that has adopted consistent rulings that are against foundational principles of international human rights law. Principles quite clearly contained in the UN Universal Declaration of Human Rights (which, note, has been adopted by the government of Afghanistan) including Articles 2 and 18 affording freedoms and rights without respect to religion, and in regards to the execution of people killed for blasphemy and homosexuality Articles 5 and 11 which prohibit cruel punishment and prohibit punishment in excess of the maximum allowable punishment when the crime was committed. It’s not merely an issue of cultural relativism. The judiciary is being judged against the standards that the government of Afghanistan itself has adopted. Second, why should I blame this killer as of this time? I thought that was what a trial was for—to determine guilt as a prerequisite to assign blame. Now, in the instant case, I don’t think the defendant is making the claim that he did not commit the killings in question. What is being debated, however, is whether the defendant was sane enough to have a culpable mental state in order to fairly assign blame. On the basis of some of the factors I listed above, this insanity defense isn’t precisely akin to the twinky defense, but rather seems to be colorable and speaks to systemic negligence on the part of military mental health care providers (EDIT: and in a further update, this is precisely what his defense attorney is arguing). At the very least I am going to withhold blame until the ruling of the fact finder.

Actually, I agree with you here. You make a very good case. Although I highly doubt some mental issue was to blame, the military's negligence is part of the bigger problem.

The crazy religious kook judge that you refer to is in actuality the entirety of the Afghan Supreme Court—the highest judicial and interpretive body in the land. If I generalize it is because appellate court rulings are in themselves generalizable—that is part of the point of having a supreme court in the first place: creating a legal precedent on which courts across the nation can reasonably rely. I am not analyzing the individual habits and predilections of particular judges—or even a group of judges—but instead the Afghan legal system as a whole through its highest legal authority.

If you know for sure that the Afghan Supreme Court would try him, then you might have a solid case on your hands. However, currently, this is a leap of faith on your part. You are again generalizing all Afghan judges because their most powerful judges aren't exemplary.

I’m sorry, I fail to understand the contradiction or point you’re trying to raise by quoting my argument, so I will simply answer the question you raise to the best of my ability—feel free to rephrase the point if you so wish.

So, why can’t there be an Afghan prosecution? For the very plain reason that Afghanistan has no jurisdiction—and any claims that the government might have had to such jurisdiction were specifically disclaimed in the Status of Forces agreement signed by the United States and Afghanistan. If you would like to see the legislative history of this agreement and a restatement of the relevant provisions, feel free to look at this article p. 12 for that information. Regardless, Afghanistan specifically affords jurisdiction of criminal prosecution of members of the US armed services to the United States. This is a cut and dry legal question. Afghanistan may desire extradition, but as far as I am aware they have no legal rights to demand it.

Your answer didn't have much to do with my question. You said you can't judge an American for the actions of his/her government and then you turned around and said Afghan judges can't be trusted because the practices of their Supreme Court were questionable. Do I have to elaborate further to point out the hypocrisy?

Given the fact that I mentioned the human rights violations above without any dispute, and given the fact that your argument was that the Afghan judicial system cannot be judged because:



Then I think it was fair (if admittedly leading) to imply that therefore you don’t believe one has the right to judge a judicial system based on human rights violations. However, to diminish any potential mischaracterization, I’ll ask: do you believe that human rights violations are criteria that can be used to judge the fairness and equity of a judicial system?

I later clarified myself by saying that I find that it is hard to understand the different aspects of another culture when they are far away and don't have much in common with us. And yes, it is criteria. However, the funny thing is, many Western/European countries (let's take America, for example) violate human rights just as much. So this moral high ground is an illusion.

By the by, I am ashamed that I did not contest this point earlier, but you are incorrect in your characterization that there is no international law that defines what a fair trial is. I am referring specifically to this assertion:



If you will kindly look to the International Convent on Civil and Political Rights (an agreement to which the UN Universal Declaration of Human Rights was an antecedent--both texts being adopted by the Afghan government) and look to Article 14(1) you'll find a cursory definition of what a fair trial entails--note especially the requirement for the impartiality of the fact finder. One can argue certainly about how effective a definition this is, but I don't think it's arguable that such a definition exists and that such a concept has through international agreement been tacitly adopted by Afghanistan.

I know of that article and last time I checked, it isn't binding.

Please stay out of conversations that have nothing to do with you. Also, calling things "irrelevant" (which you have done numerous times) doesn't actually make them irrelevant. Think before you speak.

I laughed.

Pointless ad hominem.

And you equate a judge with a country and make no effort to discriminate between them. There really is no need to further debate anything with you.

No, I equate an employee with his employer. It is pointless to discriminate between the two when one has such power over the other as to either force him to comply or simply replace him with another more willing to dance to its whims.

Originally Posted by Great White North

I laughed.

Pointless ad hominem.

I do not think you understand what ad hominem is, my friend. Trust me when I say, after this post, that I will not respond to you any further.

Also, calling things "irrelevant" (which you have done numerous times) doesn't actually make them irrelevant.

The only way this can be interpreted is as a challenge to bring forward evidence of this thing's irrelevance.

The burden of proof is on the person who is claiming that something is relevant, not on the person claiming that it is irrelevant.

Originally Posted by Double penetrAtion

The only way this can be interpreted is as a challenge to bring forward evidence of this thing's irrelevance.

The burden of proof is on the person who is claiming that something is relevant, not on the person claiming that it is irrelevant.

That's true, DA. However, I have not presented anything as fact, other than the lack of an international definition of a fair trial (and if I have, feel free to point it out, and I will either rescind the statement or alter the wording). I am merely having a debate of opinions with Raptor Buddha. There is no burden of proof here.

I'm glad you're picking up on this stuff, but you aren't properly applying it.

Originally Posted by Tallgeese

That's true, DA. However, I have not presented anything as fact, other than the lack of an international definition of a fair trial (and if I have, feel free to point it out, and I will either rescind the statement or alter the wording). I am merely having a debate of opinions with Raptor Buddha. There is no burden of proof here.

Most of the world (including Afghanistan) has signed and ratified the International Covenant on Civil and Political Rights, which does establish quite a few ground rules in regards to what constitutes a fair trial.

If you know for sure that the Afghan Supreme Court would try him, then you might have a solid case on your hands. However, currently, this is a leap of faith on your part. You are again generalizing all Afghan judges because their most powerful judges aren't exemplary

We don’t even need to go through the analysis of what particular court we’re sitting in. Supreme Court decisions are binding on lower court decisions—and this is a common feature of all high courts. The legal principle of stare decisis, or binding precedent, kicks in and governs the conduct of a lower court—which is in turn bound by oath to obey. The Afghan judge in our hypothetical courtroom could be Gandhi or Pol Pot, but both would still be bound to respect a higher court ruling. Again, the point isn’t to generalize individuals, the point is to restate the law as it exists in a legal system.

Your answer didn't have much to do with my question. You said you can't judge an American for the actions of his/her government and then you turned around and said Afghan judges can't be trusted because the practices of their Supreme Court were questionable. Do I have to elaborate further to point out the hypocrisy?

Ah, I see the source of the confusion—based around the fact that I didn’t (and don’t) see where hypocrisy applies. So the issue is why can one make the claim that an American can’t be judged for the actions of his government, but an Afghan judge can be judged for the actions of his?

As a preliminary matter, let’s distinguish what we’re analyzing here. We have the common word judge which we are using in two different ways. In regards to the first premise, the point was that one cannot hold a defendant criminally liable for the actions of his or her government. The second premise is that one can make normative valuations about a national system of criminal justice. The comparisons are logically distinct.

Even still, the variables are misidentified. I’m not discussing individual Afghan judges at all. I am saying that the Afghan legal system can be fairly assessed through its various ruling which are binding on all lower courts. Individual Afghan judges may not be evaluated on the basis of the government’s position, but the legal system as a whole can. The latter is the unit of analysis. Thus, I don’t really see the hypocrisy.

I know of that article and last time I checked, it isn't binding.

I disagree.

Originally Posted by Office of the United Nations High Commissioner for Human Rights

… covenants, statutes, protocols and conventions are legally-binding for those States that ratify or accede to them.

Thus, is the International Covenant on Civil and Political Rights binding? Well, it would be inappropriate to confine our analysis to the title, so let’s look at the text. Here I shall quote the preamble:

Originally Posted by Preamble, ICCPR

The States Parties to the present Covenant…

If this itself isn’t enough to demonstrate ICCPR’s binding nature to signatories, then refer to Article 51 of the ICCRP in how it describes how it and subsequent amendments are binding on member nations that ascent (in this case, Afghanistan).

Now, the analysis itself isn’t complete. There are many nations that have reservations that nullify the effect of the ICCPR in some parts. You can see those nations here. However, we can see plainly that this comprehensive list doesn’t include Afghanistan. Thus, the entirety of the ICCPR is applicable to Afghanistan, including Article 14(1) that contains the definition of a fair trial.

Thus, it’s binding.

The issue is rather one of enforceability which, to be fair, is a recurring issue in almost all forms of modern international law (outside of bilateral treaties and the like).

However, let’s assume hypothetically that it’s not binding. Well, it doesn’t particularly matter. The point is that a definition of a fair trial exists and has been accepted by the government of Afghanistan through a signed instrument that it has not repudiated. The government of Afghanistan does acknowledge that the fair trial described in Article 14(1) even if it might not enforce it.

This debate is really interesting. You're all kind of going back and forth for nothing though. SSG Robert Bales will be tried in the United States under the Uniform Code of Military Justice.

This sort of thing has happened many times in Afghanistan and Iraq during the initial stages of the invasions. The only reason this situation is receiving so much attention is because he acted alone.

When it comes to such cases, in which a soldier commits a warcrime to a such degree, I dont know how I would have handled it, whetever he should be punished by his nation or by the offended nation.

But one thing is sure, if he were to be handed over to the afghans, and he was sentenced to be tortured to death, I dont think I would sympathize over him.

What makes this so clear cut to me is the amount of sensationalism that is applied to it from their leaders. The people, luckily, can be as sensationalist as they want and in a stable society, the government won't buckle in their ethical duties against such fickle and often short-lived angers. However, given that Karzai is so unreliable as a strong leader, it seems obvious that he'd be more interested in whatever is most politically salient and therefore beneficial for his own needs, rather than what is right for Afghanistan or the world.

C) That the base where he was stationed at in Afghanistan has a tendency to make a proportional amount of men stationed there who go "rogue" or "looney".

That's a very interesting allegation to make. I doubt there is a conspiracy going on regarding that particular base to have the soldiers go out and kill Afghans randomly. There isn't any logical motive, it's pretty politically stupid to do if they did.

It's more likely that there are amounts of mercury in the soil or something that is screwing with people's minds.