The principal conventions governing prisoners of war are the Hague Conventionof 1907 and the Geneva Convention of 1949. U.S. policies are spelled out in TheLaw of Land Warfare, Army Field Manual FM 27-10.
The Hague and Geneva Conventions lay out four criteria defining prisoners ofwar. This is a direct quote.
The conventions further stipulate:
If Al-Qaida had never attacked the United States, but had merely fought us inAfghanistan, they would probably be entitled to the status of prisoners of war.But in its operations against the United States, Al-Qaida fails all four tests.While Al-Qaida has a chain of command, it does not accept responsibility for theactions of its operatives (or more to the point, considers any act that harmsAmericans legitimate). Open operations and conduct of operations in accordwith the laws of war hardly need comment.
Persons, such as guerrillas and partisans, whotake up arms and commit hostile acts without having complied with the conditionsprescribed by the laws of war for recognition as belligerents, are, when captured by theinjured party, not entitled to be treated as prisoners of war and may betried and sentenced to execution or imprisonment (FM 27-10 Par. 80).
By the way, prisoner of war status can be revoked if an individual is shownto have committed a war crime.
Nobody has much of a problem with dealing summarily with common criminals intime of war. If a soldier is caught looting or committing rape and punished bythe enemy as a common criminal, probably nobody will complain much. War crimesbecome a problem when they are deemed militarily necessary by one party butcrimes by the other.
FM 27-10 notes:
d. Compliance With Law of War. This condition is fulfilled if most of the members of the body observe the lawsand customs of war, notwithstanding the fact that the individual memberconcerned may have committed a war crime. Members of militias and volunteercorps should be especially warned against employment of treachery, denialof quarters, maltreatment of prisoners of war, wounded, and dead, improperconduct toward flags of truce, pillage, and unnecessary violence and destruction(Par. 64d).
In other words, the fact that some members of, say, the German army in WorldWar II committed atrocities did not mean that Germans as a whole were deniedprisoner of war status. Frankly, international law hasn't yet fully formulatedhow to deal with terrorist and criminal organizations, where individual captivesmay not have been demonstrably engaged in atrocities. However, given that theentire reason for the existence of such organizations is the commission of actsin violation of international law, it would make perfect sense to criminalizemere membership in such organizations. Certainly, members of such organizationscan be reasonably suspected of violations of international law and as such, notentitled to the automatic status of prisoners of war.
Some critics of international law have argued that the definition of prisonerof war status is merely a ploy to give nation-states a legal monopoly on theright of warfare and to deny it to insurgencies.
Yes. And your point is? Nation-states are legal monopolies. They havea legal monopoly on the right to conduct war. There is no such thing as a legal rightto violate the law. Nation-states also have legal monopolies on the right toprint money, operate police forces, issue drivers' licenses and medicallicenses, and make laws and punish lawbreakers.
If you want to replace one of these monopolies you have the legal right to doso once you've taken it over. If you fail, you'll pay the penalty.
And international conventions do recognize the right to prisoner ofwar status for insurgents and guerrillas provided they carry out theiroperations according to the rules of war.
FM 27-10 has a number of pertinent comments that elaborate on the meaning ofinternational conventions:
If the enemy approaches an area for the purposeof seizing it, the inhabitants, if they defend it, are entitled to therights of regular combatants as a levée en masse although they wear no distinctive sign. In such a case all the inhabitantsof the area may be considered legitimate enemies until the area is taken.Should some inhabitants of a locality thus take part in its defense, itmight be justifiable to treat all the males of military age as prisonersof war. Even if inhabitants who formed the levée en masselay down their arms and return to their normal activities, they may bemade prisoners of war (Par. 65).
In World War II, for example, the German army might have been justified inmaking prisoners of war of all the military-age males in an area of strongresistance activity. They were not justified in conducting summaryexecutions or destroying houses.
Commando forces and airborne troops, althoughoperating by highly trained methods of surprise and violent combat, areentitled, as long as they are members of the organized armed forces ofthe enemy and wear uniform, to be treated as prisoners of war upon capture,even if they operate singly (Par. 63).
c. Carrying Arms Openly. This requirementis not satisfied by the carrying of weapons concealed about the personor if the individuals hide their weapons on the approach of the enemy (Par. 64c).
Members of the armed forces of a party to theconflict and members of militias or volunteer corps forming part of sucharmed forces lose their right to be treated as prisoners of war wheneverthey deliberately conceal their status in order to pass behind the militarylines of the enemy for the purpose of gathering military information orfor the purpose of waging war by destruction of life or property. Puttingon civilian clothes or the uniform of the enemy are examples of concealmentof the status of a member of the armed forces (Par. 74).
Persons, such as guerrillas and partisans, whotake up arms and commit hostile acts without having complied with the conditionsprescribed by the laws of war for recognition as belligerents, are, when captured by theinjured party, not entitled to be treated as prisoners of war and may betried and sentenced to execution or imprisonment (Par. 80).
In other words, it is perfectly permissible for soldiers to use stealth,surprise, and concealment by camouflage or skillful use of terrain, night, andweather. You can hide in the bushes if you spot an enemy patrol. That is an inherent part of warfare, and it is thejob of the opposing soldiers to detect and stop these tactics. The purpose ofrequiring open carrying of arms and distinctive signs is precisely to protectcivilians by making it easy to distinguish combatants and non-combatants.
Most guerrilla conflicts in history have been inherently illegal underinternational law. They were all, of course, illegal under the laws of theregime they were fighting. They were illegal under international law becausethey violated the rules about carrying arms openly and being distinguishablefrom civilians. They were inherently war crimes because they endangeredcivilians by making it impossible to distinguish combatants and non-combatants.In addition, most "wars of national liberation" employed as a matterof basic policy assassination of civilians, torture, kidnapping, and massreprisals, and were therefore war crimes under any definition.
Conducting a guerrilla operation that is legal under international law is atall order. It would require either maintaining a force continuously in thefield in uniform and under arms, or part-time fighters who would have to behaveas legitimate civilians at all times while among other civilians, then assembleto conduct openly armed operations at other times. If they were identified asguerrillas, they could be legitimately charged as spies once they returned tocivilian clothes. And under no circumstances could they conduct reprisalsagainst civilians who sided with the enemy.
By that reasoning, the Vietnamese Communists were all war criminals.And your point is...? Actually, regular troops captured in uniform werelegitimate prisoners of war, but anyone who carried out terrorist acts againstcivilians was a war criminal.
While it's clear we don't have to regard Al-Qaida captives as POW's,would it do any harm if we were to give them that status? Probably not, provided(and given the commentary so far, this is a big if) it is clearly understoodthat POW status can be revoked if a person is shown to have violated the rulesof war.
One of the frustrations of international law is that it's only feasible toprosecute war crimes against enemies who have been totally defeated or who holdno prisoners of their own. Enemies who hold prisoners are likely to deny POWstatus to their prisoners in retaliation. Enemies who have not been defeatedwon't turn over accused war criminals and are likely to fight to protect them.Cynics quite naturally assume that war crimes are defined by the victors.
So what can we do? We have three options:
As attractive as option 3 is from a moral perspective, it will often meanwading into a conflict and taking on both sides. It will mean ignoring theoutrage of lots of people who sympathize with the war criminals or who don'tagree that they are criminals.
Created 8 December, 2001, Last Update 24 May, 2020
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