If a picture speaks a thousand words, the images transmitted around the world in late 2001 of the “unlawful combatants” being transferred to the US detention centre in Guantanamo Bay, Cuba, spoke volumes. Blindfolded, handcuffed and strapped to hospital beds, the prisoners looked like they were undergoing some hideous scientific experiment rather than merely being transported to their new prison.

But that was just the beginning of the PR nightmare in which the US government found itself regarding to the prisoners from the ‘war on terror.’ The Bush Administration came under fire for announcing that the captives, were illegal combatants, and therefore did not have any protection under the Geneva Conventions.

The outcry was immediate from NGOs, international organizations and allies who insisted that the United States adhere to the Geneva Conventions to which it was a signatory. All were quick to point out that even if the ‘detainees’ were not classified as Prisoners of War (POWs), they would be protected under the Fourth Geneva convention for the protection of civilians in conflict areas.

By late January 2002, US Secretary of Defense Donald Rumsfeld, under international pressure, acknowledged that the Conventions do apply to all of the prisoners at Guantanamo Bay, reversing earlier statements to the contrary.

The moral of this story is that despite the changing face and nature of war, the Geneva Conventions are surprisingly flexible and remain relevant for the protection of all individuals who find themselves embroiled in armed conflict. Even when given seemingly justifiable circumstances to do otherwise, countries continue to profess the importance of the Conventions and their commitment to adhere to them. They do so for the sake of their moral image and for the protection of their own personnel.

It has been over a year since the Guantanamo controversy. However, with the outbreak of war in the Gulf, the Geneva Conventions have again returned to the spotlight.

The Geneva Conventions

There is much confusion over what exactly the Conventions are and whom they protect. The Geneva Conventions of 1949 and the two Additional Protocols of 1977 are the documents that currently outline the humanitarian rules applicable in armed conflict. There are four separate Conventions that govern the treatment of neutral personnel, medical workers, POWs and civilians. Specifically:

• Convention I: for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
• Convention II: for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
• Convention III: relative to the Treatment of Prisoners of War.
• Convention IV: relative to the Protection of Civilian Persons in Time of War.

These four Conventions have been signed by 190 states. The Additional Protocols of 1977 (AP I and II) have been signed by a majority of states, but by substantially fewer than the 1949 Conventions (161 and 156 states respectively of 191 UN member countries).However, they are still considered to have customary, if not moral, authority by many. The purpose of the two Additional Protocols was to clarify and strengthen the protection afforded to individuals, POWs and civilians in armed conflict.

Both the United States and Iraq are parties to the Geneva Conventions. The United States ratified the Conventions on 2 August 1955 and Iraq ascended on 14 February 1956. However, both countries are not signatories to the Additional Protocols of 1977.

The Conventions become applicable at the beginning of hostilities. According to the Conventions, this includes “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” In the case of the present conflict, the Conventions would have become effective when the Coalition Forces began their attack on 18 March 2003, although international law, international humanitarian law and international human rights law would have always been in effect.

Degrading Treatment of POWs

Using prisoners of war for propaganda purposes is a violation of the Geneva Conventions and organizations which monitor compliance of international law, such as the International Committee of the Red Cross (ICRC), have requested that both the Iraqi and Coalition forces refrain from releasing images of POWs to the media. This is, of course, problematic as there are at least a thousand journalists in the region with the ability to send images of POWs all over the world.

The US has made the claim that by “parading” American POWs on television, Iraq has violated Common Article 3 of the Conventions which prohibit “outrages on personal dignity, in particular humiliating and degrading treatment.” Also, directly relating to this issue, the Conventions specify that “No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.” This could also be considered a violation under Article 13 of the Third 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."

POW status is also governed by Article 4 of the Third Convention. The General principal of this article is that any member of the armed forces of a party to a conflict is a combatant and any combatant captured by the opposing party is a POW.

Finally, as mentioned above, further clarification of POW status is located in Additional Protocols I and II. Specifically, AP II, 4 prohibits “outrages on personal dignity, in particular, humiliating and degrading treatment, enforced prostitution and any form of indecent assault."

Again, neither the US or Iraq are parties to AP I and II. However, this does not mean that the Protocols are not binding upon both Parties. The Geneva Conventions specify that in cases not covered by the Conventions, the Protocols or other international agreements, or in the case of denunciation of these agreements, “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.” This, the so-called Martens Clause, indicates that the Additional Protocols may be considered customary law and that all parties are morally bound by the rules in them if they truly wish to be seen as adhering to both the letter and the spirit of international law.

Although these rules may sound frivolous or run counter to the imparatives of modern warfare, they are historically significant. In World War II some 200 US and British POWs were forced to march through the streets of Rome and forced to endure insults and other indignities. It is worth noting that the officer who staged the event was later prosecuted as a war criminal.

Irregular Forces

Another issue that may emerge as the Coalition forces make headway into Iraq are the Amn Al-Khas (Special Security Service/Office) and the Fedayeen Saddam (Saddam’s Martyrs/ “Men of Sacrifice”). These are not regular army personnel or members of the Republican Guard Special Forces. Rather, they paramilitary organizations who are fiercely loyal to Saddam and known to operate in plain clothes. By most accounts, they are led by Saddam’s sons. Other groups said to be participating in the fighting include the Al Quds (Jerusalem Brigades) made up of both men and women fighters, Ashbal Saddam (Saddam’s Cubs) – a military organization for children ages 10-16 and the Youth Civil Defence Force whose 12-17 year old members are trained to protect cities. (It is worth noting that enlisting soldiers under the age of 15 is considered to be a war crime.)

In the present conflict, the Al-Khas and Fedayeen have been providing assistance and enforcing loyalty to the regular Iraqi forces in cities like Nasiriyah. According to some reports, these forces fight without a uniforms, identification and/or without openly carrying their arms. In this case, these forces are “illegal combatants” – that is, private persons who do not have the right to take part in the conflict. These individuals may face trial for their participation. If a combatant who is not a member of a recognized armed force wishes to be accorded POW status, he/she must adhere to Article 4 of the Third Convention: 1) to be under the command of a person responsible for his subordinates (part of a hierarchical organized force); 2) having a fixed or distinctive sign recognizable at a distance; 3) carrying arms openly, and; 4) conducting their operations in accordance with the laws and customs of war. It is uncertain at this point how well the Al-Khas and Fedayeen have complied with these four requirements.

The exception to this would be if the Al-Khas and Fedayeen are considered to be participating in a levée en masse (a general uprising of the population against an invading force). It is doubtful that the US will regard their participation as a part of such a movement.

However, being designated an ‘illegal combatant’ does not mean that any such individual is not protected under the Conventions. Rather, instead of being given POW status under the Third Convention, they would be protected under the Fourth Convention as civilians.

Compliance with the Conventions

Iraq has declared that it will act in line with the Geneva Conventions – likely out of a desire to maintain a degree of respectability in the eyes of the international community. However, given its past record, it is understandable that many on the Coalition side and international organizations remain concerned. During the Iran-Iraq War of the 1980s, Iraq (as well as Iran) confounded the ICRC’s efforts to identify the deceased and captured POWs and prevented visits to some 20,000 Iranian POWs. Well over a decade since the last shot of that war has been fired, all prisoners have still not been released. During the Gulf War, captured American pilots were beaten while being interrogated by Iraqi forces. If the fighting in Baghdad becomes messy, Saddam’s willingness to abide by the Conventions is questionable at best. If allegations that American POWs were shot while attempting to surrender prove true, this would already be a grave breach of the Geneva Convention.

On the other hand, it is clear that the US and Coalition forces wish to be seen as adhering to international law as much as possible in this conflict. Yet already there has been concern over pictures of Iraqi POWs published in the Western media. On 23 March, the Washington Post published a picture of a bound and blinded Iraqi POW. Iraqi POWs have also been seen during “live-on-the-scene” reporting from the front lines of the conflict.Nevertheless, one can expect that the Coalition forces will attempt as much as possible to maintain the spirit of the international law. Even while it denied that the prisoners in Guantanamo were protected by the Conventions during the war in Afghanistan, spokespersons for the US government and military insisted that all prisoners would be treated along the lines specified under international humanitarian law.

It is clear that the Geneva Conventions are profoundly important to American and Coalition forces. It also appears that Iraq has shown a greater degree of respect for the Convention than in previous wars.Respecting the Conventions is crucial to launching complaints when the rights of one’s own troops are abused. Any time one side in a conflict shows less than full compliance with the rule of law, they have diminished their moral stature and made it easier for their opponents to refuse to comply. It is hoped that the damage done over the rights of prisoners in Afghanistan will not result in a tougher time for Coalition POWs in Iraq. It is in the interest of the of all warring parties to adhere to international humanitarian law at all times.

Stephanie Carvin is the Research Officer of the Canadian Institute of Strategic Studies

Copyright CISS 2003

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