Global Policy Forum

Looking dazed and fearful, five U.S. soldiers captured by Iraqi forces were shown on videotape broadcast by al-Jazeera on March 23. President Bush warned that if POW's were not treated humanely, "the people who mistreat the prisoners will be treated as war criminals." For its part, Iraq said it would respect the Geneva Conventions in its treatment of the prisoners.

Iraqi POW's are not the only ones who have been filmed or photographed in captivity. U.S. networks have also shown footage of Iraqi soldiers surrendering or being detained during military operations, and several still photographs of POW's have appeared in U.S. and other news media.

The rules governing the treatment of prisoners of war are spelled out in the third Geneva Convention of 1949. The Convention requires that POW's "must at all times be treated humanely," and goes on to list a number of specific requirements: they must not be killed, seriously endangered, mutilated or subject to medical or scientific experiments. Furthermore, they must be protected against acts of violence or intimidation, and against "insults and public curiosity" (Article 13).

According to A.P.V. Rogers, a former Major General in the British army and an expert in the laws of war, the key to deciding whether treatment of POW's infringes the Convention is to look at the intention of the action. Action that was intended to be "humiliating and degrading," he said, would qualify as a breach of the Convention. But television footage that was "merely factual" would not necessarily be a violation.

That distinction was seized on by the British Defense Minister, Geoff Hoon, who told reporters on March 24 that there was "an enormous difference" between "the factual photographs very often of the backs of prisoners surrendering as against the appalling, barbaric behaviour of Iraqi forces dealing with... American prisoners."

But Francoise Bouchet-Saulnier, legal advisor to Medecins Sans Frontieres, said that it was important to take the likely consequences of filming POW's into account. She pointed out that a key concern of the Convention was to prevent prisoners from being put in danger, and said that footage of Iraqi soldiers voluntarily surrendering might lead to future reprisals against them or their families on the grounds that they were traitors. She added that if the footage was shot by film crews "embedded" within the U.S. military, and cleared by military officials before being broadcast, then the army had a responsibility to prevent it from being shown, if individual Iraqi soldiers could be identified.

A spokesman for the International Committee of the Red Cross, Florian Westphal, told the Crimes of War Project that the ICRC would consider the use of any image "that makes a prisoner of war individually recognisable" to be a violation of Article 13 of the Convention. He pointed out that the condition of being taken prisoner might be considered degrading or humiliating in itself, and that representations of captives could also have an impact on families. He said that the ICRC was appealing to both sides to abide by the provisions of the third Geneva Convention, including Article 13. He also said that the ICRC is talking to both sides about obtaining access to prisoners of war, and hopes to be given access "within days."

An earlier controversy about the photographing of military detainees came when the United States released images of shackled captives in Guantanamo Bay last year. Those photographs were felt by many to be degrading, although it was not easy to identify individual captives. Although the United States says that the Geneva Conventions are not technically applicable to detainees from the war in Afghanistan or the wider campaign against terrorism, the U.S. government has pledged to abide by the main humanitarian provisions of the Convention.

General Rogers pointed out that during the last Gulf War in 1991, the British Army had pursued a deliberately cautious policy toward the representation of prisoners of war, requiring that footage of enemy soldiers being taken prisoner should not be broadcast if they could be individually identified. But "the view taken was that there would be no problem in showing them as a group," he said.

Francoise Bouchet-Saulnier also pointed out that under the law, prisoners of war cannot be coerced to reveal information of military use. "You can interrogate prisoners if you think they may have been involved in a crime, if the questioning is related to prevention of a future crime that may be planned, or to the investigation of a crime that has already been committed," she said. But to force soldiers to release military information is to encourage them to become traitors, she said, and that is to put them in possible danger.

"It is important to be aware that you may have different types of prisoner," she added. Those who surrender freely may be willing to cooperate, but those who are taken prisoner during hostilities should not be put under pressure to reveal information about their side's military resources or deployment.

Technically, not all violations of the Geneva Conventions are "war crimes" – that determination is reserved for serious breaches of the treaty. General Rogers said that in his opinion, subjecting prisoners of war to humiliating or degrading treatment was a serious violation, and hence a war crime.

It has been reported that footage of dead U.S. soldiers, also aired by al-Jazeera, appears to indicate that some may have been shot in the forehead at close range. If the soldiers were executed in captivity, that would be a grave breach of the Geneva Convention, and a war crime.

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