home > by publication type > backgrounder > IRAQ: International Law and POWs
Email
| Author: | Sharon Otterman |
|---|
March 31, 2003
The most important rule, enshrined in Common Article 3 of the 1949 Geneva Conventions, is that prisoners of war (POWs) must be treated humanely.
Part of the body of international humanitarian law that deals with how war is conducted. The law is laid out in a number of documents, the most important of which are four 1949 Geneva Conventions, two 1977 additions to them called protocols, and other treaties, such as the Hague Convention of 1907.
Apparently not, but the extent of its violations is not yet known. U.S. officials worry that some American prisoners have been tortured or executed. British Prime Minister Tony Blair said March 20 that two British POWs had been killed after capture. If true, these would be grave war crimes.
Showing a prisoner of war on television--as Iraq did--could also be an infraction of the rules, though a less serious one. Administration officials have said parading POWs violates Article 13 of the third Geneva Convention, which states that "prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity."
There are many allegations that it has. American POWs held by Iraq during the 1991 Gulf War have alleged that they were tortured. Last April, retired Air Force Col. David Eberly and other former Gulf War POWs filed a $900 million lawsuit against Iraq for the "barbarous" treatment of American prisoners. The lawsuit, filed in a Washington, D.C., federal court, alleged that the Iraqi agents tortured, beat, starved, shocked, and burned prisoners.
There have been no such reports in this war. However, in the war in Afghanistan, the Bush administration came under serious criticism from human rights groups and lawyers when it refused to extend POW status to captured Taliban and al-Qaeda fighters. The Bush administration later agreed to extend POW status to Taliban prisoners, but not al Qaeda. Some international humanitarian lawyers say that the United States' selective use of POW rules then has weakened its case for a strict interpretation of the Geneva Conventions now.
No. There is a large legal gray area about who is officially considered a POW, and thus over who is entitled to the detailed protections in the conventions. The law states that members of the armed forces of a nation, when captured, are prisoners of war. So are members of organized militias or volunteer corps that are part of the armed forces.
In general, legal combatants meet the following conditions:
Questions arise when fighters operate illegally and outside of the rules of war. For example, the United States has denied that al-Qaeda members qualify for POW status because, among other reasons, they do not constitute a national armed force.
Yes. They are still guaranteed humane treatment. They are also guaranteed the right to appeal their status through a due process hearing.
Yes. According to Article 17 of the Geneva Conventions, every prisoner of war must give his name, rank, date of birth, and serial number when captured. International lawyers say POWs can also be questioned, but under strict guidelines. "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever," the law states. And POWs who refuse to answer "may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."
The U.N. Charter regulates when one country can go to war with another. According to the charter, the use of force is generally banned, except under two conditions: in the pursuit of a nation's "inherent right of self defense" (Article 51), or when authorized by the U.N. Security Council (Chapter VII). Debate over the application of these provisions in practice is intense.
No. While both the United States and Iraq have ratified the 1949 Geneva Conventions, for example, neither has agreed to the 1977 agreements, which deal with guerrilla fighting and other issues of modern war. Generally, rules of war are determined not only by what is in treaties, but also by international consensus and practice. This is called customary international law.
Yes. No matter what one thinks about the legality of a war--some critics have said the U.S.-led assault on Iraq is unlawful--humanitarian laws must be followed. A strict interpretation of the Geneva Conventions would make illegal all tactics that unnecessarily endanger and target the civilian population.
Yes. It is considered an act of treachery or perfidy--and is a serious violation. Broadly defined, perfidy, or abuse of trust, takes place when a combatant tricks the enemy into thinking that he deserves protection under the laws of war. According to Article 37 of the 1977 addition to the Geneva Conventions, perfidy includes feigning:
Pentagon officials have recently accused the Iraqi forces of perfidy. However, because the United States has not ratified the 1977 protocol defining perfidy, that could complicate its legal case, lawyers say.
This can fall into a gray area, but generally the answer is no. Legal commentators say a combatant can use camouflage, but he cannot pretend to be a civilian and hide in a crowd. These distinctions can get tricky. If captured, such forces may not be entitled to POW status.
Often, they are not. In fact, many of the illegal actions banned by this law are staples of guerrilla warfare tactics. Such tactics were famously used by the Viet Cong in Vietnam and the irregular fighters in Somalia. That doesn't make them any less illegal. But in the heat of battle, the legality of actions may not be a major consideration.
Yes. The law permits what it calls ruses, which are actions intended to mislead the enemy, or induce him to act recklessly, but not those that trick them into thinking a combatant is entitled to humanitarian protections. Military handbooks list many of these: staging surprise attacks and ambushes, using decoys, transmitting misleading messages in the press, removing the signs indicating rank from uniforms, and many kinds of psychological warfare.
Weigh in on this issue by emailing CFR.org.
In Termites in the Trading System, Jagdish Bhagwati reveals how the rapid spread of preferential trade agreements endangers the world trading system.
America Between the Wars explores how the decisions and debates of the years between the fall of the Berlin Wall and the collapse of the Twin Towers shaped the events, arguments, and politics of the world we live in today.
In The Fall and Rise of the Islamic State, Noah Feldman tells the story behind the increasingly popular call for the establishment of the sharia—the law of the traditional Islamic state—in the modern Muslim world.
Complete list of CFR Books.
This report argues that the United States must lead with domestic action on climate change and proposes a U.S. negotiating strategy for a global UN climate agreement that includes commitments from all major economies, while also promoting a less formal Partnership for Climate Cooperation that would focus the world's largest emitters on implementing aggressive emissions reductions.
This Task Force report examines changes in Latin America and in U.S. influence there, while taking account of the region's enduring importance to the United States. The Task Force offers an agenda for U.S. policy toward Latin America and identifies four critical areas that should provide the basis of a new U.S. approach.
About Independent Task Forces at CFR.
This report outlines the nature of the challenges in Pakistan's tribal areas, formulates strategies for addressing those challenges, and distills the strategies into realistic policy proposals worthy of consideration by the incoming administration.
This report analyzes the debate over U.S. use of assurances against torture, explaining the contexts in which they are used, how they can be conveyed, and what they can contain, and recommends a number of ways to respond to criticism so that the United States can continue using assurances.
Complete list of Council Special Reports.
“The Next President:” Richard Holbrooke says the next U.S. president will inherit a more difficult set of international challenges than any predecessor since World War II.
To order Task Force reports, Council Special Reports, and Critical Policy Choices, please call, fax, or order online from our distributor, the Brookings Institution Press: phone +1.800.537.5487, fax +1.410.516.6998.
For information on other reports that are not for sale, or for general publications information, please call +1-212-434-9516 or email publications@cfr.org.
To request permission to reuse Council materials, please email publications@cfr.org or fax +1.212.434.9859.
Please include the complete information of the requested work—author, title, sections/pages to be copied or reprinted, and number of copies to be made—along with a brief description of where and how you would like to reuse the work.
You may also request permission for Council material through Copyright Clearance Center. For more information, please click on the link below.
Copyright 2008 by the Council on Foreign Relations. All Rights Reserved.
