The Geneva Convention III Relative to the Treatment of Prisoners of War (1949) is itself drawn from the customary laws of war set down in the 1907 Hague Convention Concerning the Law and Customs of War on Land. Under these principles, there is a presumption that, during conflict, a captured detainee be conferred the belligerent status of a POW, which would invoke applicable protections under international law. If a captive status is in doubt, then a “competent tribunal” must decide. The designation of status has to be done by the Geneva process and not through arbitrary fiat or utterances of officialdom. The Geneva Convention has been signed and ratified by the US and, hence, is part of the law of the United States.
The US stance on the prisoners held at Guantanamo Bay is troubling. Secretary of State Colin Powell, a former soldier, is cognizant of its presidential impact should American soldiers be captured in an overseas conflict.
In a letter dated January 28, 2002, to Condoleezza Rice, National Security Advisor, Kenneth Roth, Executive Director, of the New York-headquartered Human Rights Watch stated: “[S]ince the U.S. government engaged in armed conflict in Afghanistan – by bombing and undertaking other military operations – the Geneva Conventions clearly do apply to that conflict.” He went on to point out that it makes no difference whether Taliban soldiers wore uniforms with insignia or that the United States did not recognize the Taliban as the legitimate government of Afghanistan – the Convention still applies. In fact, he points out, past US practice is consistent with that reading; during the Korean War, mainland Chinese soldiers captured by the United States were treated as prisoners of war although the US at the time recognized Taipei and not Beijing as the legitimate government of China.
America’s European allies are equally disturbed by the Bush Administration attempts to circumvent international law. My law school professor, the late Dr. Thomas Mallison, spent a key part of his academic life tackling the eligibility under international law for POW standing.
Initially, during the Vietnam War, the United States denied Geneva protections to the Viet Cong. The closest parallel to the Bush Administration position is the traditional policy of Israel in not conferring POW status to captured Palestinian resistance fighters. Tel Aviv’s contention was the prisoners did not abide by the laws of war; therefore, the captors did not have to abide by the Geneva Convention. During his State of the Union Address of January 29, President Bush named Hamas, Hezbollah, and Islamic Jihad as part of the “terrorist underworld,” in effect, adopting the enemies of Israel as the enemies of the US.
In 1943, huge numbers of German POWs were brought to the US, with most being put into prison camps across the American South. They were given excellent treatment and enjoyed robust diet similar in quantity to that partaken by American soldiers guarding them. Some of the Germans were part of the Waffen SS, which were involved in war crimes including atrocities against Jews. At that time, however, 90,000 US soldiers were held by the Nazis and the concern was that good treatment of German captives would be reciprocated by decent treatment of American POWs. In fact, German prisoners were far better treated than the dispossessed American citizens of Japanese ancestry who were interned in camps pursuant to a Presidential directive by President Roosevelt, following the Japanese strike on Pearl Harbor.
The treatment of German prisoners changed dramatically for the worse after the defeat of Hitler’s Third Reich in May 1945. American POWs had been released by then. The story of German POWs in the US was documented by the History Channel on its show first broadcast on January 27.
The above serves only to confirm that the principle of “might makes right” continues to hold sway. And just as history is written by the victors, the rules of detention for captured prisoners is subject to the whims of victors’ justice, making international law, in effect, a mere maidservant of power politics.