Paul J. Magnarella, professor of anthropology and law at the University of Florida, was a legal consultant to the United Nations Criminal Tribunal for the Former Yugoslavia. We asked him about the proper treatment of prisoners of war and how the rules came to be.
United States officials claim that Iraq violated the Geneva Convention by showing prisoners of war on television. What's the basis for the complaint?
The Geneva Convention says prisoners of war should not be held open to public curiosity. At the time the conventions came into force, what was contemplated was parading prisoners through the streets, or holding them in places where the public could ridicule them. Given modern communication technology, simply showing them on television--not holding them out as prizes of war, not to ridicule them--would not really be a violation. We've done that. Our networks have shown Iraqi prisoners of war, and they have shown their faces.
But that was simply for informational purposes, not for public ridicule. If press coverage goes beyond that, where prisoners of war are allowed to be interviewed by foreign journalists while in captivity and scared and wounded, and that's all put on TV, it would seem to be a violation.
Prisoners of war, according to the Geneva Convention, are to be treated humanely. They are to be kept in a safe place, with adequate food and medical attention. They are not supposed to have to answer any question except name, rank, serial number and date of birth. To allow foreign journalists access to them for national TV consumption, yes, that would border on a violation. So it depends on how it's done.
The International Committee of the Red Cross, which is headquartered in Geneva, promulgated them in 1949. They codified existing laws of war and expanded them somewhat based on the World War II experience.
How far back do these wartime ethics go?
There are various principles. Some come from just-war theory, like the discriminate use of weapons so that civilians are not killed or injured. In the late 19th century, early 20th century there were two meetings in the Hague, and out of those came the Hague Conventions on the Law of War. Basically they got codified into the Geneva Conventions.
Today they are called customary principles of humanitarian law. Humanitarian law is made up of The Hague Conventions, the Geneva Conventions, the concept known as crimes against humanity, which came out of the Nuremberg Trials, and the Genocide Convention, a U.N. convention from 1948, and then certain customary principles of international law.
Do these principles depend on a formal declaration of war?
Those principles apply as long as there is armed conflict. A declaration of war is immaterial.
Are the Conventions actually a document signed by nations?
The Geneva Convention and the Genocide Convention have been ratified and signed by many. But now these things are part of what is called customary international law. So whether a country has actually ratified the Geneva Convention or not doesn't matter. If that country is engaged in genocide, it's considered to be a crime against all and the people responsible can be prosecuted by the courts of other countries or by some international tribunal.
The underlying principle of human-rights law in the context of war is that the goal is to disable the enemy. Once people surrender they are disabled, out of combat, after which shooting them becomes murder. They are defeated. They become prisoners of war, and when the war is over, they are released. Otherwise, you have a genocide, in which both sides try to eliminate the other for the purpose of winning the war.
Are these rules less respected than they used to be?
In the former Yugoslavia, in Rwanda, they were ignored. But the world reacted by creating the U.N. Criminal Tribunal for the Former Yugoslavia, where people who were responsible for crimes against humanity are being prosecuted. Also, in Rwanda, the Security Council created a tribunal for the atrocities there and the trials are ongoing. The United Nations has also now created an international criminal court that will do the same. The judges have been elected and the court should be operating soon.
Is there a cultural divide here? Are these Western war traditions that we're now attempting to enforce on the Iraqis?
Saddam Hussein said, I believe, that he would honor the Geneva Convention. The International Committee of the Red Cross has representatives who try to get permission to go into prisoner-of-war camps and to examine the situation to see if the prisoners are being humanely treated and to remind the combatants of their obligations. That's happened here. The observers have asked the Iraqis to let them see the prisoners and have asked the allies to let them see the Iraqi prisoners.
Are there certain conflicts that seem to breed violations of the humanitarian law, say ethnic conflicts, like the former Yugoslavia?
Well, in World War II there were violations by the Nazis, and there was the firebombing of Dresden by the Allies, the atomic bombing of Nagasaki and Hiroshima. Those were humanitarian law violations because civilians were the primary targets, not military targets. So the principles of proportionality and the indiscriminate use of weapons were violated then.
I should point out that there is another violation that the Iraqis are committing--that is, surrendering and then opening fire on the troops that are going to take them into custody. That's called perfidy or treachery and it's clearly a violation of the Geneva Conventions, because that jeopardizes people who want to genuinely surrender. If they fake surrender, they are committing a war crime.
Another point of interest here is that if America is going to be demanding, as it should, that its military be treated humanely in accordance with the Geneva Conventions, the United States has not extended that privilege to the 600 prisoners from the Afghan conflict that its holding at Guantanamo Bay. We've said they are not prisoners of war, and therefore not entitled to the protections of the Geneva Convention.
The Convention says that whenever there is a question as to whether a person is a prisoner of war or not, he should be treated as such until a tribunal has decided his status. That has not happened and the world is quite critical of the United States in this regard. People who are knowledgeable about international law say this will only jeopardize Americans who are captured.