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Courtwatch: POWs And The Law

Attorney Andrew Cohen analyzes legal issues for

The good news about the American POWs is that Iraq is a signator to the Geneva Convention relative to the Treatment of Prisoners of War. The bad news is that Iraq doesn't seem to be adhering to the Convention's many principles that are designed to protect the safety and dignity of war prisoners. If it were, the world would not have seen videotaped "interviews" of captured U.S. soldiers, much less surmised that some American soldiers might have been executed after they surrendered.

No fewer than four Convention articles relate directly to the facts about the prisoners as we now know them. Article 3 of the Convention states that war prisoners "shall in all circumstances be treated humanely ..." Their captors are prohibited from using "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture ... outrages upon personal dignity, in particular ... humiliating and degrading treatment ..." Article 13 of the Convention states that: "no prisoner of war may be subjected to physical mutilation ... prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity ..."

Article 14 of the Convention states that: "Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favorable as granted to men." And Article 17 states that: "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 whatsoever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantagous treatment of any kind." And these articles just relate to the capture of prisoners -- there are many other provisions that are designed to protect prisoners after capture.

So where has Iraq gone astray of its international obligations under the Convention? First, under the auspicies of state-controlled television, it staged and shot the video of the American prisoners. Next, it disseminated the footage to the Arab satellite network Al-Jazeera. Both acts violated the affirmative duty that captor's have under Article 13 to protect their prisoners from "public curiosity." And apart from the broadcast dimensions involved, the treatment of the prisoners also probably violated Article 17 which prohibits captors from treating war prisoners to "any unpleasant or disadvantageous treatment of any kind." It's hard to argue otherwise when Arab television shows the captors asking the captives on television if they came to "shoot Iraqis."

Contrast these dark images with the images of Iraqi prisoners shown over the past few days on American and overseas networks. What's the legal difference, the cynical among us might be inclined to ask? After all, in both cases, enemy prisoners were shown on television. There are plenty of differences. First, the Western images show Iraqi prisoners in the process of being captured, which distinguishes them at the outset from the images of American prisoners already in custody. The duty to protect prisoners doesn't arise as a practical matter until the capture is complete. So the Iraqis had a duty to protect their captives from video cameras. But the Americans had no such duty to protect the Iraqis from being videotaped while they being captured.

Also, the images we've seen of Iraqi prisoners were not shot by the U.S. government but were instead videotaped by news organizations that obviously are not signatories to the Convention. Although the Coalition has a great deal of control over the journalists embedded within it, that control is not absolute, and the U.S. and British governments are not required under the Convention to answer for the actions of private organizations. Centcom is not parading images of Iraqi prisoners during its high-definition video shows and US officials, as best as I can tell, haven't invited television cameras into its prisoner of war camps where thousands of Iraqies are being kept. If it did, it, too, would be violating the Convention.

Televising the images of prisoners, in other words, isn't per se prohibited. Prisoners are filmed all the time and have been in every war since World War I. What makes the difference between lawfully showing their images -- as the Western news media have done -- and unlawfully showing their images -- as Iraq has done -- is who does the filiming, when the filming takes place, and what motivates it.

By any of these standards, Iraq is in trouble again when it comes to complying with international law.

By Andrew Cohen