Saturday, January 28, 2006

So, what's the problem?

In the previous post, I wrote about news reports over the past couple of years that indicate a pattern of US forces in Iraq detaining relatives of key suspects in order to induce them to turn themselves in. So, what is wrong with that?

It's against the law, that's what. No, I am not a international lawyer, nor do I play one in a video game, but I became interested in the field both through grad school and by growing up a military kid, with some time overseas. And the nice part is that the documents on international humanitarian law are all on the web, and are fairly straightforward.

Conventional Wisdom

After the carnage of the Second World War, the nations of the world tried to find some way to prevent it's recurrence. Along with the creation of the United Nations, there was a recognition of the need for strengthening international law concerning the waging of war. Since 1864, there had been a succession of agreements known as the Geneva and Hague conventions, which laid out standards of treatment for the wounded, prisoners, and noncombatants. The reversal of the Swiss flag was adopted as a distinctive symbol indicating medical noncombatants -- the Red Cross. The International Committee of the Red Cross (ICRC) was formed to to monitor the implementation of these agreements.

In 1949, all of these agreements, along with other measures, were combined into the four Geneva Conventions, which provide the foundation for international humanitarian law. The four conventions:
  • 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
Now, these conventions cover quite a bit of territory, and include many requirements and proscription. In particular, each convention defines what are known as "grave breaches" -- the most serious offenses. Of interest in our current case are grave breaches of Convention IV on civilian persons:
Art. 147.
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.(emphasis mine)
Ah, there we go. A couple of technical notes before we go farther. This convention does appear to apply here as:
  • both the US and Iraq are "high contracting parties" -- we are both signatories to the conventions
  • there was an armed conflict on the territory of one of the parties
  • the US was acting as an occupying power, unquestionably up to the departure of Paul Bremer, and arguably up to the present hour
  • the persons involved were noncombatant civilians -- they were taking no active part in hostilities, unless you count knowing a suspected combatant as taking an active part, in which case there might not be any civilians at all.
So, the convention applies, and hostage taking is a grave breach of the convention. What's the penalty for this, a strongly worded telegram from Geneva?

War Crimes

Well, how does up to life in a federal prison sound to you? Under Title 18 of the United States Code, chapter 118, section 2441, a grave breach of the convention is defined a war crime, with fines and jail time up to a life sentence attached. If somebody dies as a result, the death penalty is available.

And the US military takes this seriously, as well. (Or at least it used to.) A primary tool for training military personnel in this subject is US Army Field Manual 27-10, The Law of Land Warfare. What does it have to say?
273. Hostages
The taking of hostages is prohibited.
500. Conspiracy, Incitement, Attempts, and Complicity
Conspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.

501. Responsibility for Acts of Subordinates
In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.
506. Suppression of War Crimes
(c)Grave Breaches. "Grave breaches" of the Geneva Conventions of 1949 and other war crimes which are committed by enemy personnel or persons associated with the enemy are tried and punished by United States tribunals as violations of international law.

If committed by persons subject to United States military law, these "grave breaches" constitute acts punishable under the Uniform Code of Military Justice. Moreover, most of the acts designated as "grave breaches" are, if committed within the United States, violations of domestic law over which the civil courts can exercise jurisdiction.
So let's review:
  • as an occupying power, the US is subject to Geneva Convention IV;
  • that convention defines holding civilians hostage as a grave breach;
  • US civil and military law defines such grave breaches as war crimes, punishable by up to life in prison -- military law extends responsibility to commanders.
The question for the next installment is, what is a hostage?

No comments: