The Geneva Conventions are comprised of four separate conventions that govern the conduct of military forces during armed conflict. The current form of these important international laws emerged in the aftermath of World War II, but they are an extension of the laws governing warfare that emerged throughout the late nineteenth and early twentieth century. These four separate conventions contain laws that govern: 1) care of sick and wounded members of the armed forces on the battlefield; 2) care of sick and wounded members of the armed forces at sea; 3) the treatment of prisoners of war; and 4) the protection of civilian persons in wartime. The Geneva Conventions are one group of international laws that set limits on the military tactics that a country may employ during armed conflict and set minimum standards for the protection of those that fall into the enemy’s hands either as wounded soldiers, prisoners of war, or civilians living under the control of an occupying force.
The Third Geneva Convention, the one governing the treatment of prisoners of war (“P.O.W.s”), contains 143 articles that set forth the laws dictating the qualification of an individual as a P.O.W. and their treatment during an armed conflict. Both the United States and Iraq have signed and ratified the Geneva Conventions. Therefore, all of the Geneva Conventions, including the one governing the treatment of P.O.W.s, were applicable during the recent war in Iraq and continue to remain in force as the United States and the other coalition forces seek to reconstruct Iraq.
The Geneva Convention governing the treatment of P.O.W.s prescribes that the country holding the P.O.W.s must follow a fixed code of conduct with respect to these individuals. Some of the basic provisions of the Convention require the detaining party to ensure that P.O.W.s are:
– humanely treated;
– provided with food and shelter;
– provided with medical care as necessary;
– removed from areas of combat as soon as feasible to ensure their safety;
– protected from public curiosity;
– not subjected to mental or physical torture of any kind;
– not interrogated beyond asking for the individual’s name, rank, and serial number; and
– allowed visits by representatives from the International Committee of the Red Cross/Red Crescent and properly registered international organizations including the United Nations.
The above items present only a very basic outline of the Convention’s requirements — but they reflect the strong affirmative duty that is placed upon the detaining power to ensure that P.O.W.s are treated with a basic minimum of care.
In the most recent Gulf War in Iraq, it is Article 13 of the Convention that has received the most attention and the most discussion. Article 13 states in full:
Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental, or hospital treatment of the prisoner concerned and carried out in his interest.
Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. [Emphasis added.]
Measures of reprisal against prisoners of war are prohibited.
The official Commentary to the Geneva Conventions, which examines the Conventions article by article, is written by the International Committee of the Red Cross. The Commentary seeks to clarify humane treatment in the following manner, “the word ‘treated’ must be understood here in its most general sense as applying to all aspects of life. With regard to the concept of humanity, the purpose of the Convention is none other than to define the correct way to behave towards a human being; each individual is desirous of the treatment corresponding to his status and can therefore judge how he should, in turn, treat his fellow human beings.” Furthermore, interpreting the sentence that P.O.W.s must be “at all times protected … against insults and public curiosity” the Commentary provides that protection has an affirmative aspect, to wit, that “to protect someone means to stand up for him” including to protect the P.O.W.’s honor and moral independence. These are affirmative duties placed on the detaining powers, not merely suggestions for appropriate treatment of prisoners. It is on this basis that the legality of the controversial footage of American P.O.W.s and the images of other P.O.W.s and surrendering forces must be judged.