Secretary of Defense Donald Rumsfeld asserted his mastery of the Geneva Conventions yesterday on Face the Nation when he protested the treatment of U.S. soldiers taken prisoner by Iraqi forces. The five prisoners, all frightened and some wounded, were videotaped by an Iraqi TV journalist who asked if their invasion had been greeted by guns or roses. The images were broadcast around the world.
"The Geneva Convention indicates that it's not permitted to photograph and embarrass or humiliate prisoners of war," Rumsfeld said.
Human Rights Watch agreed with Rumsfeld, chiding Iraq for its treatment of the POWs. But in the same press release, HRW criticized the United States for parading Iraqi prisoners around for the benefit of the news cameras, urging it to stop.
Who's violating the Geneva Conventions? And how culpable are the Iraqi media and the media embedded with the coalition forces?
Both Rumsfeld and Human Rights Watch base their charges on Article 13 of the Third Geneva Convention. Article 13 says nothing specific about videotaping of prisoners—intrusive or otherwise—because the convention was approved in 1949, long before the advent of portable video cameras, satellite uplinks, and news around the clock. Article 13 concerns itself primarily with merciful treatment of prisoners. The relevant section reads:
Prisoners of war must at all times be humanely treated. … [P]risoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. [Emphasis added.]
The "insults and public curiosity" language sounds archaic, but it wasn't that long ago prisoners of war were routinely dragged through the streets by their captors in shackles, ridiculed and often beaten—a fate far worse than being videotaped in a compromising position after surrender. Professor Michael Byers, who teaches international law at Duke University, says he can recall no war crimes prosecution under the Geneva Conventions for filming prisoners. But, he adds, there have been very few war crimes trials under the Geneva Conventions in the age of television.
The Geneva Conventions must be understood as a human rights treaty, say Byers, created to protect individuals and not the state that signed it. When a soldier surrenders, the army that takes him prisoner must observe all the Geneva Conventions' rules and strictures. The Iraqi TV "interview" of the American prisoners appears to have been designed specifically to humiliate and demean—which makes it seem a clear violation of Article 13.
But what of news footage of Iraqi prisoners taken by journalists on either side? Because journalists aren't bound by the Geneva Conventions, they can't be prosecuted for interviewing or taping prisoners. It falls upon the military to uphold the conventions by preventing the press from exploiting the vulnerable prisoners. But, Byers adds, the conventions shouldn't be used to prohibit reasonable reporting as long as the footage isn't designed to intimidate or humiliate. Some of the footage shot of Iraqi prisoners by embedded journalists, especially the closeups of weeping, surrendering troops, approaches this line, and, depending on your interpretation, crosses it.
Byers says he thinks Iraqi military will treat captured Americans "pretty well" for two reasons: 1) If Iraq loses this war, as many Iraqis think it will, the military knows war crime trials will follow; and 2) because the legality of the U.S.-British intervention is questioned around the world, the Iraqis will want to appear as being in compliance with the Geneva Conventions if they mount a legal case against the coalition.
Rumsfeld is a bit two-faced on the Geneva Conventions. One year ago, Byers criticized Rumsfeld in the pages of the Guardian for the U.S. treatment of the hundreds of Afghan prisoners currently held in Guantanamo Bay, Cuba. The Guantanamo prisoners have had their beards forcibly shaven off, a violation of their human dignity under the 1966 international covenant on civil and political rights. And they have been photographed by the press in shackles and with hoods over their heads. Subsequently, the United States limited media access to prisoners citing the "insults and public curiosity" passage from the Geneva Conventions. But at the same time, Rumsfeld maintains the prisoners don't have any rights under the Geneva Conventions because they are "unlawful combatants."
Byers notes that the "unlawful combatants" category is one of Rumsfeld's invention and not found in any international treaty. Under Article 5 of the Third Geneva Convention, military tribunals—not Donald Rumsfeld—should determine which prisoners should be prosecuted as criminal suspects and which should be accorded prisoner of war status. "The record shows that those who negotiated the convention were intent on making it impossible for the determination to be made by any single person," Byers writes.
To be sure, the Iraqis aren't taking their human rights cues from Guantanamo. But if they want a precedent, there it is.
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