Locked on the Horns of a Dilemma

Involving ourselves in the affairs of Afghanistan produces many dilemma and it is unsurprising when we found ourselves, like Phædrus locked on the horns of a dilemma.

We went into Afghanistan to prevent that nation being used as a terrorist training ground and a place to launch terrorist attacks against our nation, or at least that is the official line and justification for our involvement in the war.  Perhaps we were doing no more than using our soldiers as a target to draw fire away from our civilians. We also had ideas about bring democracy to Afghanistan, educating women and bring justice to that country, whether the people of that country wanted our concepts of democracy, education and justice or not. Our methodology was to bring our ideas by force of arms, which I suspect has never worked in history and will never work, because ideas spread by the force of the idea, not the force of arms.

In drawing fire our soldiers and many Afghan civilians became targets; people who oppose us shot them and tried to blow them up with bombs. Those people are wicked and whatever the rights and wrongs of our role in the conflict are, people who shot other people and blow them up in order to terrorise them should be brought before the courts, tried and punished.

However, there are some ninety people who are thought to have been involved in these kinds of criminal acts, which our soldiers have captured and imprisoned. No charges have been brought against them and they have not been handed over to the Afghan authorities to undergo the justice process because no one trusts the Afghan judicial system. Under that judicial system people are regularly tortured and the chance of a fair trial is almost as good as the proverbial snowball’s chance in hell. It is not only possible but it is also likely that many of the ninety people imprisoned are not guilty of any crime.

Having rounded up ninety people and not charged them with any crime and not handed them over to the judicial process the British government has placed these people in a legal limbo where their common law right of not being wrongly detained has been breached. Writs of habeas corpus have been issued; this process is nothing to do with any human rights adopted by international treaty but originates  from a common law remedy habeas corpus ad subjiciendum first used in 1305 in England.

The dilemma that the British government have is that to hold these people without charge or trial is unlawful, but to release them into a process which will lead to them being tortured and unfairly tried is also unlawful.

It is hard to see how the government can release itself from this dilemma. It is also hard to understand how the government can handle people it has unlawfully detained in Afghanistan when next year our troops leave the country.

Perhaps Britain can set up some kind of military tribunal to try these people in Afghanistan, but even if the trial is fair and people are convicted the problem of what to do with them when the British leaves still exists.

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