Dr. Mutulu Sho-Nuff Bringing it (Part 2 of 3)

[nattyreb]

(Continued from Pt. 1)

Accordingly, lets study these three instruments in brief. (A)Geneva Convention of 1949 defined the P.O.W. and their treatment during that time.

PROTOCOL

In 1977, additional protocols to the Geneva Convention were adopted to reflect the character of guerilla warfare practiced by national liberation movements. The Preamble to the Protocol I states:
Reaffirming further that the provisions of the Geneva Convention of August 12, 1949, and of the protocol must be fully applied in all circumstances to all persons who are protected by those intruments, without any adverse distinctions based on the nature or origin of the armed conflict or on the causes expoused by or attributed to the Parties to the conflict.

A person who takes part in hostilities and falls into the power of the adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he claims such status by notification to the detaining power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.

If a person has fallen into the power of an adverse Party, is not held as a prisoner of war, and is to be tried by that Party for an offense arising out of the hostilities, he shall have the right to assert his entitlement to prisoner of war status before a judicial tribunal and to have that question adjudicated. Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offense. [i.e., domestic trial].

Protocol One
The many internal armed conflicts since 1949 have highlighted the deficiency in common Article III and illustrated the need to develop new rules for regulating internal armed conflict. From 1974 to 1977, 124 states, 50 non-governmental organizations, and 11 national liberation movements participated in one or more of the four diplomatic conferences that produced the two PROTOCOLS added to the Geneva Convention on the 12th of August, 1949. Protocol I was intended to update the law of war regulating international armed conflict between states. PROTOCOL II was adopted to regulate internal armed conflicts. Both PROTOCOL I and II were accepted by the Executive Branch of the United States until the Reagan Administration.

On December 8, 1978, The General Assembly enacted Resolution 33/24, entitled Importance of the universal realization for the right of the peoples to self-determination and the speedy granting of independence to colonial countries and people for the effective guarantee and observance of human rights, wherein it states:
"The General Assembly ...reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial domination and foreign occupation by all means available, particularly armed struggle". (Emphasis added*)

1. CAPTURED ANTI-COLONIAL FIGHTERS ARE ENTITLED TO THE POLITICAL STATURE OF 'PRISONER OF WAR' AND THE PROTECTIONS OF THE GENEVA CONVENTIONS.
2. The armed struggle of people against colonial and racist regimes are to be regarded as international armed conflicts in the sense of the 1949 Geneva Conventions, and the legal status envisaged to apply to persons engages in armed struggle against colonial and alien domination and racist regimes.
3. The violation of the legal status of the combatants struggling against colonial and alien domination and racist regimes in the course of armed conflicts entails full responsibility in accordance with the norms of International Law.

Militia Members Organized Resistance

(A) That of conducting their operations in accordance with the laws and customs of war.
(B) Member who professes allegiance to a government or authority not recognized by the detaining power.
(C) Inhabitants of now-occupied territory who on the approach of the enemy spontaneously take up arms to resist the invading forces having at times to form themselves into regular armed units provide they carry arms opening and respect the laws and customs of war.
How does this help the P.P.P. question? It's where the combatant becomes aware and pledges allegiance to the cause of taking up arms against an invading force that distinquishably separates the P.P.P. from the non-combatants. (i.e., Ruchell, Attica Brothers.)

P.O.E.E.
The Court in Quinn traced the history of the political offense exception and noted that it emanated from the belief that indiviuals have the right to resort to political activism for political change. The Court stated that "political crimes" have a greater legitimacy than common crimes internal to prison and external to activism.

According to the Quinn Court, there are two (2) distinct categories of political offenses: pure political offenses, and "relative political offenses".

Pure political offense are aimed directly at the government and have none of the elements of ordinary crimes. These offenses which include treason, sedition, espionage, do not violate the rights of individuals. Because they are frequently specifically excluded from the list of extraditable crimes in a treaty, courts seldom deal with whether these offenses are extraditable, and it is generally agreed that they are not.

The definitional problems focus around the second category of political offenses -- the relative political offenses. These include "otherwise common crimes commited in connection with a political act, "or common crimes... committed for political motives or in a political context. Quinn v. Robinson, supra, at 793-794.

Second, it is clear that throughout the history of New Afrikan presence in America, there have been consistent rebellions, uprisings and varying levels of violent political turmoil arising from New Afrikan resistance struggle across the American Empire (U.S.A.) . This is particularly true of the struggle of the 1960's up to and through the period today. Urban rebellions, attacks on police, financial institutions, narcotics enterprises, and armed self-defense in the face of police attacks, and radical violence were common place during this period. As previously noted, the B.L.A. was credited with a number of armed attacks and the overground military formations of the New Afrikan Independence Movement ("N.A.I.M.") involved in a number of acts of armed self-defense. During the period of the offenses alleged in my case (Brinks), Black urban rebellions occurred two or three times in Miami, one in Chattanooga, Tennessee, and inside Pontiac Prison in Michigan, and inside numerous other prisons. (Lucasville).

The Quinn case moreover points out that the an uprising group does not have to have political structure, and that a person not a member of a group might through parallel or supportive activities act in furtherance of an uprising. * Consequently, there is no need for a prisoner such as myself, Dr. Shakur, to testify with regard to membership in an uprising group like the B.L.A. in order for the political character of the charged acts to be established. For the P.P.P. to have to be a member of a party or organization his/her acts must further support the organizations goals.

Political offense exception developed within the extradition context as a standard for evaluating the acts charged in this certification.

The International tests that establish the political offense exception are used to distinquish common from political crimes.

In 1986 for example, in my case, U.S.A vs. Shakur et. al, and Marilyn Buck, in the 2nd. Circuit Southern District of New York, we presented a motion contending that the acts charged in the indictments are political acts which are not properly the subject of criminal prosecution. I contended that under applicable treaties and International Law that I was a Prisoner of War. One of the International Instruments that was relevant was the defining acts charged in the indictment as political and not R.I.C.O.. We profit the P.O.E.E. analysis as...
(A) International Law applicable to Domestic Courts.
(B) That P.O.E.E. provided International and Domestic standards upon which acts charged in the indictment could be determined to be political.
(C) That it could provide a method upon which an individual can be determined to qualify for the protection of the various International Law instruments.

The court at that time, although asking the right questions came to the conclusion that juries could not determine violations or application of International Law with respect to Domestic charges; different than what happened in Seattle in 1998, involving Ground Zero-D59-Trident Nuclear Submarine Case.

The Trident Ground Zero D50 Nuclear Submarine Case was a demonstration against nuclear weapons, specifically Trident Submarine and nuclear war which the defendant deemed a violation of International Law and crimes against peace, and crimes against humanity. They believed that the Hague Convention of 1977 was the International Law that protected their rights. July 6,1996, the International Court of Justice deemed that the development and deployment was a violation of International Law. The Nuremburg Principals required individual and organized action of said proliferation and developement.These instruments are also considered in the P.O.E.E. analysis.

The Judge's instructons went on to say that Congress alone has the ability to abrogate treaty law, and that where there is a conflict between a right granted or duty imposed by International Law or treaty, and a local, state, or federal law, the right granted or duty imposed by treaty or international law shall govern. Nuremburg in effect says that "silence is complicity", therefore not only giving the right to engage in non-violent acts of dissent, but also the duty to engage in such acts.

These analogs are very much applicable to P.O.W.'s, P.P.P.'s and P.P.'s. P.O.E.E. standards IN THE TRUTH AND RECONCILIATION COMMITTEE IN SOUTH AFRICA, CHAIRED by Desmond Tutu, which was formed to develope a method for creating amnesty in South Africa.

The task was to balance the latitude of an open-ended concept of amnesty with specific limiting criteria, so that while any conflict and everybody could come into the process,* it was not a blanket amnesty whithout standards. For this purpose, the act adopts the principal defining the concept of a political offense drafted by Carl Agage Norgard, a Danish national President of the Europrean Commission on Human rights, for use in the 1989 settlement in Namibia that foreshadowed events in South Africa. These principals require an examination of the: 1) motivation of offender; 2) circumstances; 3) nature of the political objective; 4) legal and factual nature of the offense; 5) object (state vs. private entity); and finally 6) relationship between the offense and the political objective, its directness or proportionality.

Clearly the same standards/criteria presented by the B.L.A. for the application of P.O.W.'s and P.P.'s in the United States by way of the P.O.E.E. analysis presented in 1986 in our case became the formula by which a great battle for justice and self-determination which took place in South Africa, in a search for resolution of that conflict, of the internal nature the P.O.E.E. analysis, used in the internal conflict between state and the people as a method of qualifying and certifying the distinction between political crimes and social crimes. These above examples should make our movement keenly aware that there are definitely instruments upon which to research for the qualifying of P.P.'s, P.O.W.'s, and P.P.P.'s in our movement, and should be applied internationally.

In re Doherty, 599 F.Supp. 270, 275 (S.D.N.Y. 1984) elaborated a more flexible standard for applying the political offense exception. It stated:
The court rejects the notion that the political offense exception is limited to actual armed insurrections or more traditional and overt military hostilities. The lessons of recent history demonstrate that political struggles have been commenced and effectively carried out by armed guerillas long before they were able to mount armies in the field. It is not for the courts, in defining the parameters of the political offense exception, to regard as dispositive factors such as the likelihood that a politically dissident group will succeed, or the ability of that group to effect changes in government by means other than violence, although conceded such factors may at times be relevant in distinquishing between the common criminal and the political offender. Nor is the fact that violence is used in itself dispositive. (Instead the court must assess the nature of the act. the context in which it is committed, the status of the party committing the act, the nature of organization on whose behalf it is committed, and the particularized circumstance of the place where the act takes place.)

The political offense exception is not merely a narrowly specialized concept used in extradition and deportation proceedings, but rather incorporates a fundamental principle that a person should not face a criminal trial for offense that are essentially political.

Accepting the premise that the prisoner has been certified as part of a movement and the prison setting is part of the movement, that said prisoner responds to the oppression and functions in an organized group or aids the goals of that movement, we should argue that the above stated instruments are applicable to our P.O.W.'s, P.P.'s, and P.P.P.'s.

The argument of our movements responsibility to P.P.'s, and P.O.W.'s, or lack thereof binds the internal struggle of the proper recognition of P.P.P 's left unsupported by our organizations and movement, and while we struggle to make aware the existence of P.P.'s, and P.O.W.'s in the United States, we support that argument by way of International Laws and various Instruments in establishing (1) a criteria, and (2) satisfying the required principle internally, we must apply the same method for qualifying P.P.P.'s, and P.O.E.E ' s which require these standards in both categories.

An important step must also be made by our organizations and movements to (1) Officially include the United States prison system as a part of the battle field in our struggle such as what the Irish Republican Army ("I.R.A") did in the early 70's and 80's. (2) We also must officially embrace the active P.P.P.'s into an organizational foundation that gives them and their work the proper recognition as provided and required under the International Instruments that best address our needs.

Essentially, the preceding information gives hard proof that P.P.P.'s can (and should) be certified under the same instruments that aid P.O.W."s and P.P.'s, and given the unmistakable premise that prisons are a part of the government's repressive regime against which the P.P.P. struggle, it should indeed be clear that the instruments of International Law are applicable. If by chance there is any lack of consensus about the government's organized efforts to destroy prison struggles for human rights against genocide, I quote the following statement from Eric Holder, former Deputy Attorney General under Bill Clinton. The rhetoric (issued in response that the government 's pursuit of the death penalty in Zacarias Moussaoui's case may be unconstitutional) states: "This is meant to send a signal to people who are in custody". Holder stipulated further that "failure to cooperate is going to carry the ultimate sanction", demonstrating the manipulation of law for poltical objectives.

This iron-fisted eagerness is not a last-minute threat to those in confinement as politically conscious prisoners have always been at risk, so this bad news is no "new" news, and if it must be spelled out, then I hazard to say that in prison, once a prisoner is politicized and draws his first wages he/she first struggles against the system -the prison administration- and there can never be a safe return to the sedentary existence of the mentally dead convict.

No matter how it is viewed, those were no transparently disguised acts of aggression meted out to Brothers George Jackson, Malcolm X, Ahmed Evans, Ruchel McGee, Akil Al-Junde, Hugo Pinel, Zola Angola, Shaka-Sankofa, Attica Bros., etc.. Those that the prison/industrial complex didn't assassinate, they bottled up as best they could to stifle them into sensory deprivation, mind altering medications, i.e., G. Jiga Pratt, who served with honor.

Therefore, the obvious point must be made that the prison setting is a battleground, a part of the greater struggle for liberation. Who can argue that prisons are merely some lame government project funded to assist in rehabilitation? No, the prison system is the government's booking agency and despite Capital Hill monologues, the joint is the ass-kicking road dog of the Justice Department, and for the record, the prison/industrial complex has more confirmed kills than C.I.A.

After dimissing all the permissiveness of the Due Process Clause, the P.P.P. has no foundation and can claim no retroactive application of International Law. They are defenseless. If it can be accepted that, historically, prisons are a legitimate arm of a repressive government, then why not consider the intensity of the P.P.P.'s plea for International protections? Because with notable exceptions, and often with a wink or a smile, the boot is forever ready to crush the neck of dissidents.

Overall the general sense of the P.P.P 's plight offers nothing to cheer about, and chances are the situation will not get any more endearing. But yet the P.P.P 's existential predicament remains. To what extent do we go to safeguard our comrades? Because as long as they remain "on the plantation", they are jeopardized! Extraordinary measures, and a firm commitment must be taken in regards to the P.P.P. question. Not surprisingly, there is not much time.