By H. Wayne Elliott
Winston Churchill, himself a former prisoner of war, once wrote, “Prisoner of War! That is the least unfortunate kind of prisoner to be, but it is nevertheless a melancholy state. You are in the power of your enemy. You owe your life to his humanity, and your daily bread to his compassion. You must obey his orders, go where he tells you, stay where you are bid, await his pleasure, possess your soul in patience.”
Yet, in spite of the problems incumbent with the status of a prisoner of war, Churchill believed that being a prisoner of war is the “least unfortunate kind of prisoner to be.” Churchill understood that with the status of “prisoner of war” come some legal protections. The prisoner of war is not considered a criminal. He is to be treated in a humane fashion. His wounds and illnesses treated. His captivity regulated by a code of rules which are intended to protect the prisoner during captivity. Today those rules are found in the Third Geneva Convention of 1949, also known as the Geneva Convention on Prisoners of War (GPW).
At one time in history, persons captured by the enemy in war enjoyed no protection. The captive might be treated as a slave of the person who captured him or, if less lucky, simply be executed. Of course, if the captive had some level of importance, he might be ransomed. And for the ransom system to work the captive really needed to be protected from harm. Still, whatever protections existed were not found in any formal legal documents. Beginning in the nineteenth century there was a series of intentional conferences which aimed at setting out the rules in a formal code or treaty. By World War II some forty countries had agreed to the 1929 Geneva Convention on POWs. The experiences of World War II led to the adoption of the Third Geneva Conventions in 1949.
The Convention sets out a system of basic safeguards for those who fall within its parameters. Some of the benefits of being held as a POW may appear to be more than is deserved. These include advances of pay, maintaining financial accounts, access to canteens, or the receipt of musical instruments. Other requirements are more substantive. POWs must be properly housed and fed. They must receive appropriate medical care and be given the opportunity to correspond by mail with their families. The protections of the Convention are only available to those who fall within its definitions.
So who is entitled to the protections of the Convention? Who is a prisoner of war? The indiscriminate attacks of September 11, 2001, and the capture of some of those either involved with the attacks or fighting to shield those who were have focused attention on the issue. Are these captives legally entitled to be treated as prisoners of war? And what of those captured in the war in Iraq?
The Geneva Conventions apply in all cases of “declared war or of any other armed conflict” between two or more States that are party to the treaties. Thus, it seems obvious that the Geneva Conventions apply to the conflicts in Afghanistan and Iraq. However, that does not mean that every person held is entitled to the protections of the POW Convention, nor that the status of a prisoner of war serves to immunize captive individuals from punishment for criminal activities.
The Bush administration announced its policy on captives from Afghanistan in February 2002. It drew a theoretical distinction between al-Qaeda fighters and members of the Taliban forces. Since al-Qaeda was a non-State group, the conflict between the United States and al-Qaeda was outside the reach of the Geneva Conventions, the White House said. By contrast, since the Taliban were the de facto armed forces of Afghanistan, the Geneva Conventions did apply to the conflict between the United States and the Taliban. However, according to the White House, the Taliban forces did not meet the criteria set out in the Third Geneva Convention for attaining POW status. Therefore, in practice, all detainees from Afghanistan were “unlawful combatants” who did not deserve the privileges of prisoners of war.
Nevertheless, the White House proclaimed, the prisoners would receive “many POW privileges as a matter of policy.” Included in the listed privileges which would be extended detainees held at Guantanamo were appropriate Muslim meals, opportunities to worship and correspond and send mail, subject, of course, to the security needs of the facility and the U.S. government. This limitation on the right of correspondence is permitted by Article 76 of the Convention.
As far as al-Qaeda is concerned, the decision to deny its members POW status seems perfectly acceptable. Al-Qaeda is little more than a criminal conspiracy directed against the western world. However, the decision to deny prisoner of war status to captured Taliban fighters has been more widely questioned.
To receive the protections of the POW Convention, detainees must fall into one of a set of specified categories. The first category is “members of the armed forces of a Party to the conflict.” (Also included in this category are members of “militias or volunteer corps forming a part of such armed forces.”) The Convention leaves it up to a State to decide who falls within its “armed forces.” However, the general rule is that the force must be under responsible command, and be subject to an internal disciplinary system which enforces compliance with the laws of war. Some experts also believe that there is an implicit requirement that forces wear distinguishing uniforms and carry their weapons openly.
A second category of people entitled to the protections of the Convention are those who are “members of other militias…belonging to a Party to the conflict…” However, to be covered the “other militias” are explicitly required to comply with the four conditions set out above. This provision was added to the Geneva Conventions in 1949 to cover partisan groups, such as those that had fought against the Axis powers in World War II.
Finally, some people who are not themselves combatants are entitled to prisoner of war status, if they are “persons who accompany the armed forces without actually being members thereof.” This provision covers civilian contactors, as well as “embedded” war correspondents. To be covered the captive must be operating with the authorization of the armed force which they accompany. That force must also issue an identification card to the person accompanying the force.
If there is any doubt about whether an enemy fighter captured during armed conflict is entitled to POW status, Article 5 of the Convention authorizes a special tribunal to rule on the matter. These so-called “Article 5 Tribunals” are administrative bodies and criminal courts.
Going back to the war in Afghanistan, the members of Taliban forces who were captured during the conflict there might be seen as belonging to the first category. However, the administration argued that even if the Taliban comprised the armed forces of Afghanistan, it did not comply with the laws of war. Because the Taliban as a whole was therefore disqualified from claiming POW status, the administration argued, there was no need to hold special hearings to determine eligibility in each individual case.
An important difference between prisoners of war and other detainees is that POWs are immune from prosecution for lawful acts of war. They may however be prosecuted for war crimes, as long as they are tried according to the same procedures that would be used in domestic proceedings against soldiers from the country holding them. (The treaty also provides that even if a prisoner of war is convicted he retains the benefits of the Convention.) By contrast, other detainees may face prosecution for acts like killing an enemy soldier, which could be charged as murder under the domestic law of the State involved.
Another significant obligation imposed by the POW Convention is that all prisoners should be released and repatriated “without delay” after the end of active hostilities, unless they have been sentenced for war crimes or are facing trial. This is also true of other captives held in connection with an international armed conflict. In the case of Afghanistan, it can be argued that the war between the United States and Afghanistan ended after the installation of the Karzai government, and that the fighting that continues in the country is now an internal conflict with outside forces participating on the government side. Therefore it seems that detainees from Afghanistan should be returned to the custody of the Afghan government, and the United States is reportedly negotiating with the Afghan government to arrange such a transfer.
In the case of Iraq, the picture is somewhat different. People captured in Iraq who were part of the armed force of Iraq clearly were POWs, and the U.S. government recognized this. Saddam Hussein was held as a prisoner of war by coalition forces before being put on trial by the Iraqi authorities for violations of international law. However, the establishment of the new government of Iraq in 2004 could be seen as marking the end of the legal conflict between America and Iraq. As in Afghanistan, the fighting in Iraq after this date should probably be seen as an internal conflict. There is no provision for POW status in internal conflicts, and Iraqis who continue the fight by attacking the U.S. forces in Iraq can be prosecuted for their acts either by the Iraqi government for violations of Iraqi law or by the U.S. for certain violations of American law. Several Iraqis have been prosecuted in Iraqi courts for offenses directed against the coalition forces. Although the United States continues to detain suspected insurgents in Iraq, it does so with the consent of the country’s sovereign government and on the basis of a UN Security Council resolution, rather than as a participant in an international conflict.
A POW may well be the “least unfortunate” kind of prisoner. But not every captive is a POW. The goal of the law here is to make compliance with the law a prerequisite for the protections of the Convention. In short, those who violate the law should expect fewer protections from it.
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