Islamic Human Rights Commission
BRIEFING: Prisoners of War and the Current Gulf War
09 April 2002
- Who is a Prisoner of War
- How Should Prisoners of War be Treated by the Detaining Power
1. Humane Treatment
3. Right to Fair Trial
4. Release of POWs
- Specific Issues raised in the current Gulf War
1. Filming of POWs
3.a. Unlawful Combatants
b. Prosecution by US-sponsored Iraqi-led forum
Since the War on Iraq began on 20 March 2003, concerns have been raised with regards to the treatment of Prisoners of War (POW) by both sides to the conflict. This briefing aims to provide background information on international humanitarian law, specifically focusing on the definition of a POW (section ii) and the protection it affords (section iii). It then provides a clarification to some of the issues that have been raised namely the broadcasting of POWs on television, the hooding of POWs, and their treatment in post war Iraq.
ii. Who is a Prisoner of War?
According to the Third Geneva Convention of 1949, prisoners of war (POWs) are combatants in an international armed conflict who have fallen into the hands of the enemy. Persons entitled to POW status fall into six categories (Article 4). They include
- Members of the armed forces, members of militia or volunteers corps
- Other members of militia or volunteers corps, including organized resistance movements provided that
– They are commanded by a person responsible for his subordinates;
– They have a fixed distinctive sign recognizable at a distance;
– That they carry arms openly;
– That they conduct their operations in accordance with the laws and customs of war
- Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
- Persons who accompany the armed forces without actually being members, provided that they receive authorization in the form of identity cards from the armed forces they accompany. This category includes captured war correspondents who would be entitled to the protections of POW status.
- Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not receive more favourable treatment under other provisions of international law.
- Civilian taking up arms spontaneously take up arms against invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
The Geneva Convention stipulates that if doubt arises as to whether captured persons are entitled to POW status, they should be treated as such until it is determined by a competent tribunal (Article 5).
iii. How should Prisoners of War be treated by the Detaining Power?
The Third Geneva Convention comes in to effect immediately upon capture. The Detaining Power is ultimately responsible for the treatment of the POWs, not the individual military units that captured them. A few of their responsibilities are briefly outlined below:
- Humane Treatment
• POWs must be humanely treated at all times; they may not be subject to torture or ill treatment or killed due to any unlawful act or omission. Punishment or revenge attacks against POWs are absolutely prohibited.
• POWs must be protected at all times; particularly, against acts of violence or intimidation and against insults and public curiosity whether by enemy forces or civilians.
• Women POWs must be treated with due regard for their gender and be given at least the same rights and protections as men. Children who are POWs are entitled to special treatment.
• POWs are only obliged to reveal their name, rank, date of birth, and military serial number or equivalent information. Physical or mental torture or other coercive measures may not be used to obtain any information. POWs may not be subjected to threats, insults, or exposed to unpleasant or detrimental treatment for refusing to answer.
- Right to Fair Trial
• No prisoner of war may be tried or sentenced retrospectively for an act not deemed illegal by the Detaining Power or by international law, at the time of commission.
• Only a military court may try prisoners of war unless under existing laws of the Detaining Power civil courts are expressly permitted to try armed forces members of the Detaining Power with regards to the particular offence alleged to have been committed by the prisoner of war.
• POWs cannot be prosecuted for simply having joined in the armed conflict. However, if applicable they may be prosecuted for war crimes.
- Release of POWs
• Unless they are liable to prosecution, POWs must be released and repatriated immediately after the end of active hostilities.
iv. Specific Issues Raised in the Gulf War:
- Filming of Prisoners of War
The showing of captured US soldiers on Iraqi television on 23 March sparked accusations from President Bush and Prime Minister Blair that the Iraqis had breached Article 13 of the Geneva Convention. Under the provision, Detaining Powers must not expose POWs to public curiosity by parading or interrogating them in front of the media.
It must pointed out that it was the US and UK forces that set this precedent in the current war by allowing the filming and broadcasting of Iraqi POWs before 22 March. It is essential that all principles enshrined in the Geneva Conventions apply equally to all POWs regardless of whether they are members of the Iraqi or Coalition forces.
Hooding is a violation of the 1984 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment. Footage of captured Iraqi POWs show them being hooded and their hands tied behind their backs by the US and UK troops. Resorting to such techniques is wholly unnecessary and contrary to human rights standards.
- Dealing with POWS in the Aftermath of the Conflict
a. Unlawful Combatants
Recent statements by government officials of the coalition indicate that some of the captured fighters will be denied POW status and instead be deemed unlawful combatants, a term not found in the Geneva Conventions.
According to the International Committee for Red Cross:
Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, [or] a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can fall outside the law.
The selective application of the Geneva Conventions on the part of the US is apparent from the infamous Camp X-Ray images of the shackled, handcuffed, ‘unlawful combatants’ forced to don orange jump suits, blacked-out goggles and masks over their mouths and noses kneeling before US Soldiers. It highlights double standards on their part by accusing the opposing forces when they themselves are internationally criticized for failing to rightfully afford POW status and subsequent protection to those that deserve it.
b. Prosecution by US sponsored Iraqi-led forum
The Pentagon announced plans on 7 April of sponsoring an Iraqi-led forum to prosecute Iraqi violators of crimes such as genocide, crimes against humanity, and war crimes. At the time of writing they have reiterated their opposition to any form of international post-war tribunal and insisted that any prosecution will take place under through US and Iraqi courts.
Such plans are destined to fail bearing in mind that, firstly, due to interference by the Saddam regime, the judiciary in Iraq cannot be considered impartial. Secondly, Iraqi jurists may not have the competence to deal with the types and the number of cases that will appear before them.
Further, those that are likely to be selected by the US to participate in the tribunal are likely to be exiles from places such as US and the UK rather than local or regionally based opposition groups. This may in itself raise questions of the bias of the US in selecting them and the subsequent lack of impartiality of the candidates.
It is also noteworthy that the extensively promoted idea that there is no opposition within Iraq is actually incorrect. Various factions exist within Iraq and at the regional level, that opposed the Saddam regime whose presence have been singularly overlooked by the US.
Another option may be the setting up tribunal composed of international and local jurists. However, the ethnic and religious make up of Iraq would complicate the issue of the impartial composition of the tribunal.
Ironically, perhaps the best forum for trying such cases would have been the International Criminal Court, which the USA has so vehemently opposed.
Islamic Human Rights Commission
PO Box 598
Telephone (+44) 20 8902 0888
Fax (+44) 20 8902 0889