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Violating the Geneva Convention
January 28, 2002
by TrogL

The four Geneva Conventions, drawn up in 1949, and ratified by most countries, specifically and dogmatically direct the identification, housing and treatment of people caught up in war.

The Article 2 of the Third Geneva Convention Relative to the Treatment of Prisoners of warnotes that:

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to 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 summary it maybe seen that:

Prisoners of war MUST be:

  • Treated humanely with respect for their persons and their honour.
  • Enabled to inform their next of kin and the Central Prisoners of War Agency (ICRC, the International Red Cross) of their capture.
  • Allowed to correspond regularly with relatives and to receive relief parcels.
  • Allowed to keep their clothes, feeding utensils and personal effects.
  • Supplied with adequate food and clothing.
  • Provided with quarters not inferior to those of their captor's troops.
  • Given the medical care their state of health demands.
  • Paid for any work they do.
  • Repatriated if certified seriously ill or wounded, (but they must not resume active military duties afterwards).
  • Quickly released and repatriated when hostilities cease.
Prisoners of war must NOT be:
  • Compelled to give any information other than their name, age, rank and service number.
  • Deprived of money or valuables without a receipt (and these must be returned at the time of release).
  • Given individual privileges other than for reasons of health, sex, age, military rank or professional qualifications.
  • Held in close confinement except for breaches of the law, although their liberty can be restricted for security reasons.
  • Compelled to do military work, nor work which is dangerous, unhealthy or degrading.

Full text may be found here.

In this CBC News Online article John Bowman discusses the third Geneva convention, noting:

The United Nations' human rights chief Mary Robinson says captured Afghan fighters should be considered prisoners of war, as defined in the Geneva Conventions. U.S. Defense Secretary Donald Rumsfeld and other American military officials call them "detainees" or "unlawful combatants."

An article in the Christian Science Monitor notes:

Defense Secretary Donald Rumsfeld told reporters that "we do plan to, for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent that they are appropriate."

But he was careful to refer to the prisoners as "unlawful combatants" or "battlefield detainees," not prisoners of war. That description severely reduces the rights that the men would have as POWs under the Geneva Conventions, and prompted a rebuttal from the International Red Cross.

"We say they should be presumed to be POWs, and it is not up to the ICRC or to the US military authorities to decide, but up to the courts," said Michael Kleiner, an ICRC spokesman.

What they are hanging their hats on is article 4a, which says in part :

Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

What they seem to have forgotten is:

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the 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.

This, I feel, more correctly describes the condition of the typical Afghan fighter. Whether they respect the laws and customs of war is, I suppose, open to some debate, but considerably less debate as to whether or not they are prisoners of war.

A Time Magazine article notes that:

...as Amnesty International has pointed out, under the Geneva Convention the Pentagon has no business making such a determination. Those who fall into the enemy's hands are entitled to POW status until a "competent tribunal" has determined their status. In the case of those in Cuba, that hasn't happened.

There is controversy as to the United States' legal position. Marjorie Cohn, an associate professor at Thomas Jefferson School of Law in San Diego, notes:

The United States has gone to the Security Council twice since the September 11 attack. The Security Council passed two resolutions, neither of which authorize the use of force. Resolutions 1368 and 1373 condemn the September 11 attacks, and order the freezing of assets; the criminalizing of terrorist activity; the prevention of the commission of and support for terrorist attacks; the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information; and urging the ratification and enforcement of the international conventions against terrorism (which the U.S. has not ratified).

Although the United States has reported its bombing to the Security Council as required by article 51 of the U.N. Charter, the Security Council has not authorized and could not authorize the use of unilateral military force by the United States and the United Kingdom, or NATO, which is not a U.N. body.

The bombing of Afghanistan is not legitimate self-defense under article 51 of the Charter because: 1) the attacks in New York and Washington D.C. were criminal attacks, not "armed attacks" by another state, and 2) there was not an imminent threat of an armed attack on the U.S. after September 11, or the U.S. would not have waited three weeks before initiating its bombing campaign. The necessity for self-defense must be "instant, overwhelming, leaving no choice of means, and no moment for deliberation." (Caroline Case, 29 BFSP 1137-8; 30 BFSP 19-6 (1837)). This classic principle of self-defense in international law has been affirmed by the Nuremberg Tribunal and the U.N. General Assembly.

Even if the U.S. was authorized on September 11 to use military force under article 51, that license ended once the Security Council became "seized" of the matter, which indeed it did on September 12, by passing Resolution 1368, and reaffirming in Resolution 1373 on September 28 that it "remains seized" of the matter. By bombing Afghanistan, the United States and the United Kingdom are committing acts of aggression, which is prohibited by the U.N. Charter.

The United States has certainly believed in the Third Geneva Convention in the past. The Senate passed a bill "A concurrent resolution condemning Iraq's treatment of U.S. and other prisoners of war", on January 24, 1991, 1:08 p.m., specifically mentioning that "the United States and Iraq are signatories to the Third Geneva Convention (1949)".

The Geneva Conventions were originally drawn up under the auspices of the International Committee of the Red Cross (ICRC), whose mission statement says:

The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization whose exclusively humantarian mission is to protect the lives and dignity of victims of war and internal violence and to provide them with assistance. It directs and coordinates the international relief activities conducted by the Movement in situations of conflict. It also endeavours to prevent suffering by promoting and strengthening humanitarian law and univeral humanitarian principles.

In a statement released January 18, 2002, Lucy Brown, an American Red Cross advisor on Interational Humanitarian Law, stated:

It is part of the ICRC's responsibility and a legal mandate under the Geneva Conventions to provide protection and assistance to all prisoners of war and detainees held in war zones...The ICRC is often the only one with access to these people and the humanitarian service is widely supported by governments because it protects their own captured people.

Now here's the clincher.

In the Statement On The International Committee Of The Red Cross (ICRC) Delivered By Ambassador David T. Johnson To The Permanent Council addressing the Permanent Council of the OCSE (Organization for Security and Co-operation in Europe) in Vienna, he notes that:

Much of ICRC's work overlaps OSCE efforts to protect the rights and freedoms of persons throughout the region, including citizens and representatives of civil society. In addition, the ICRC has protected the rights of thousands of persons in the OSCE region, especially internally displaced persons, prisoners, detainees and others deprived of their freedom, and civilian victims in conflict. ICRC's principles of independence, neutrality, and impartiality have helped it secure unique access, especially when other organizations may not be allowed or granted access.

The United States especially supports ICRC visits to detained persons and its work to ensure that the physical and mental integrity of prisoners is respected and that prison conditions are consistent with international standards.

In a Houston Chronicle article, from the New York Times News Service:

Red Cross officials said on Wednesday that they had paid two visits in Afghanistan to John Walker Lindh, the American captured with the Taliban last week, and had taken a letter from him to carry to his family.

Cross officials said the visits, somewhere inside the country, were hindered by the presence of American soldiers, who have Walker in custody. Red Cross officials said they would seek to see Walker, whom they consider a prisoner of war, without the soldiers present.

"We are still requesting a private interview," said Macarena Aguilarof the International Committee of the Red Cross. Under the Geneva Conventions of 1949, prisoners of war are entitled to be visited by international monitors in a private setting.

In addition, the BBC reports that:

United Nations High Commissioner for Human Rights Mary Robinson and other commentators have argued that the armed conflict in Afghanistan is of an international nature and the law of international armed conflict, the Geneva Conventions, should appply.

Finally:

A spokesman for the human rights group Amnesty International has said the photographs showing inmates chained, blindfolded and kneeling before their guards are reminiscent of torture methods used in eastern Europe in the 1970s.

This violates Article 17 of the Third Geneva Convention - "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind."

Reports indicate that they are provided with the necessities of life and an opportunity to pray. However, the cells are extremely small, basically a wire cage exposed to the elements.

This violates Article 21 of the Third Geneva Convention - "...prisoners of war may not be held in close confinement".

They are not provided the opportunity to do their own cooking nor are they provided with Arabic-style cooking. This violates Article 26 of the Third Geneva Convention - "Account shall also be taken of the habitual diet of the prisoners...Prisoners of war shall, as far as possible, be associated with the preparation of their meals; ...they shall be given the means of preparing, themselves, the additional food in their possession. Adequate premises shall be provided for messing."

Prisoners are provided with a bucket for a toilet. This violates Article 29 of the Third Geneva Convention - "Prisoners of war shall have for their use, day and night, conveniences which conform to the rules of hygiene and are maintained in a constant state of cleanliness."

Prisoners are provided with a 2" foam mattress and sleep on the ground. I severly doubt that their captors are housed in the same conditions. This violates Article 25 of the Third Geneva Convention - "Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards both total surface and minimum cubic space, and the general installations, bedding and blankets. "

Their clothing and belongings have been confiscated, and they are dressed in orange jumpsuits. This violates Article 18 of the Third Geneva Convention - "All effects and articles of personal use, except arms, horses, military equipment and military documents, shall remain in the possession of prisoners of war, likewise their metal helmets and gas masks and like articles issued for personal protection. Effects and articles used for their clothing or feeding shall likewise remain in their possession, even if such effects and articles belong to their regulation military equipment."

Their beards have been shaven, in violation of fundamentalist Islamic law. This violates Article 14 of the Third Geneva Convention - "Prisoners of war are entitled in all circumstances to respect for their persons and their honour".

It appears to be the intention of the United States to prosecute the prisoners by an internal Military Tribunal. This is violates Article 10 of the Third Geneva Convention -

When prisoners of war do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided for in the first paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake the functions performed under the present Convention by a Protecting Power designated by the Parties to a conflict.

If protection cannot be arranged accordingly, the Detaining Power shall request or shall accept, subject to the provisions of this Article, the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross to assume the humanitarian functions performed by Protecting Powers under the present Convention. "

I call upon the United Nations to either act in this capacity or to propose a body, individual or group to provide this 'Protecting Power'. I also call upon the United Nations or any interested party to prosecute the United States under these and other sections of the Geneva Convention as provided for under international law.

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