IRAQ: International Law and POWs

February 3, 2005

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Current political and economic issues succinctly explained.

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What does international law say about prisoners of war?

The most important rule, enshrined in Common Article 3 of the 1949 Geneva Conventions, is that prisoners of war (POWs) must be treated humanely.

What are the most serious violations?

  • Violence, in particular murder of all kinds, mutilation, cruel treatment, and torture.
  • Violations of personal dignity, in particular humiliating and degrading treatment.
  • Sentencing and executing prisoners without a judgment handed down by a regularly constituted court that offers all standard judicial guarantees.
  • Hostage-taking.
  • Withholding treatment from the wounded and sick.

What are the Geneva Conventions?

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.

Is Iraq following the rules regarding prisoners of war?

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."

Has Iraq violated the POW rules in the past?

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.

Has the United States violated POW rules?

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.

Is everyone captured considered a prisoner of war?

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:

  • They are commanded by a person responsible for his subordinates.
  • They wear uniforms or can otherwise be identified as fighters.
  • They carry arms openly.
  • They conduct their operations in accordance with the laws and customs of war.

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.

Do illegal combatants have any protection under the law?

Yes. They are still guaranteed humane treatment. They are also guaranteed the right to appeal their status through a due process hearing.

Can prisoners of war be questioned?

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."

What other rules govern war?

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.

Are all countries agreed on the rules?

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.

In illegal wars, do humanitarian laws still apply?

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.

Is pretending to surrender and then attacking an enemy a violation of the rules of war?

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:

  • an intent to negotiate under a flag of truce or of surrender.
  • an incapacitation by wounds or sickness.
  • civilian or non-combatant status.
  • protected status by using the signs of neutral parties, such as a Red Cross or U.N. sign.

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.

Is it legal for fighters to dress in civilian clothes?

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.

How often are these rules banning perfidy followed?

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.

Is any form of trickery permitted in war?

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.

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