When is a prisoner not a prisoner?

SWISS PHILANTHROPIST HENRI DUNANT WAS an observer at the Battle of Solferino. So appalled was he at the plight of the wounded that he inspired the inaugural Geneva Convention for their protection, in addition to the International Committee of the Red Cross.

The second Geneva Convention was signed at the turn of the 20th Century, providing for shipwrecked mariners. Following the mistreatment of Prisoners of War (PoW) during World War I, the third Convention was duly signed in 1929.

The fourth Geneva Convention was ratified after World War II, during which the civilian involvement in the conflict had become far greater than was the case in previous battles. This was followed by two protocols to protect insurgents and resistance groups. Given the fact that terrorism is a crime, the Courts try captured terrorists.

Come the mid-20th Century and wars were, in the main, generally being fought to a series of agreed Conventions. For instance, PoWs were repatriated as soon as possible, as were badly-wounded prisoners and those who were forced to step down due to compassionate reasons. Of course, such actions often occurred during hostilities.

Those nations who did not sign up to any Conventions were merely condemning members of their Armed Forces to cruelty, murder and starvation. Of the 90,000 Germans captured at Stalingrad, only 9,000 actually returned home.

Guerilla tactics and insurgency

Warfare since the Second World War has seen undeclared hostilities, and the emergence of both guerrilla tactics and insurgency groups. Opposing front lines were once demarcated, but uniformed Government security forces are now opposed by irregular forces operating from bases spread throughout (and frequently outside of) the designated combat zone. Civilians are all-too-frequently caught in the crossfire, becoming the victims of suicide bombs or having to flee their homeland as refugees. This is known as asymmetrical warfare. Remember that intelligence is every bit as much the weapon as a rifle.

Dissident forces are protected under Additional Protocol II to the Geneva Conventions. The wording states: “Dissident Armed Forces or other organised groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations.” This effectively means that organised dissident forces not necessarily associated with a nation, but following a creed or ideology, are subject to the same laws governing conflict as the Government’s own Armed Forces.

The problem is that most irregular forces are unaware – or simply do not wish – to follow the Law of Armed Conflict and the Geneva Conventions, relying instead upon the media to expose perceived shortcomings and abuse by Government security forces. The media are usually happy to do so, often at the expense of the nation’s reputation.

The Law of Armed Conflict accepts the inevitability of hostilities, and states that the fighting is governed by the three fundamental principles of military necessity, humanity and proportionality. For instance, in military necessity those politicians who send soldiers to war – not to mention the naval and military commanders – should consider the legitimacy of targets as military and political goals.

In terms of military humanity, the treatment of prisoners is a factor, so too the evacuation of civilians from a combat zone. Recently, humanity in combat zones has been sadly lacking, which has led to the formation of such charitable organisations as the Medical Foundation for the Care of Victims of Torture which actively highlights the mistreatment of prisoners, suspects and hostages.

When it comes to military proportionality, the rules of engagement are a key feature. The response to an incident must be proportional to the effect of that incident. By way of example, would the immediate use of armed helicopter gunships against insurgents in built-up areas be justified?

Article III of the Geneva Convention

Article III is common to all four of the Geneva Convention agreements, stating that: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply – as a minimum – the following provisions:

Persons taking no active part in the hostilities – including members of the Armed Forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention or any other causes – shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are – and shall remain – prohibited at any time and in any place whatsoever with respect to the above mentioned persons:

• violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
• the taking of hostages;
• outrages upon personal dignity (in particular humiliating and degrading treatment);
• the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted Court affording all of the judicial guarantees which are recognised as being indispensable by civilised peoples.”

Interrogation is permitted on the proviso that it’s carried out humanely and does not debase, humiliate or harm the prisoners involved.

Of late, controversy has surrounded the prisoners held at Camp X-Ray in Guantanamo Bay. According to US Defence Secretary Donald Rumsfeld, the prisoners there – all of whom are suspected terrorists in the wake of 9/11 – are what he terms “unlawful combatants” and, on that basis, don’t qualify for protection (see panel ‘Camp X-Ray at Guantanamo Bay: Human Rights and international law’).

Under Article IV of the Geneva Convention, in order to qualify for protection all irregular forces must:

• be commanded by a person responsible (for the actions) of his or her subordinates… During the 1945 Nuremburg and Tokyo Military Tribunals, Allied prosecutors had to prove that Axis commanders knew that war crimes were being committed under command of the defendant, that the defendant knew (or at least should have known) that subordinates were engaged in war crimes and that the defendant did nothing to prevent or punish those responsible for war crimes.
• display a fixed, distinctive sign recognisable at a distance… This permits the security forces to identify them as combatants. The IRA solved this problem by ensuring that, when units were being filmed, the activists wore uniform. They did so when on operational duties in Northern Ireland. It’s really a throwback to the days when the flag was not only seen as a rallying point, but also as a distinctive sign to friend and foe alike in the heat of battle.
• carry arms openly (in action)… Using civilians as human shields to screen opening fire is not permitted.
• conduct operations in accordance with the laws and customs of war… While Islam is an extreme extension of the Muslim faith, it is a fact that its rhetoric and aims are tied in with the history of the Middle East and a desire to restore their Rule of God. However, the execution of civilian hostages and military prisoners that occurred in Iraq and Afghanistan is contrary to the spirit of the Convention.

As far as Al-Qaeda is concerned, while it is accepted that Osama Bin Laden is “a person responsible for his subordinates”, the remaining three conditions of the Convention are flouted by not having a ‘fixed, distinctive sign’, not ‘carrying arms openly’ and violating ‘the laws and customs of war’ by actively targeting civilians.

Article 118 of the Geneva Convention requires that PoWs be ‘repatriated without delay after the cessation of active hostilities’. The failure of Al-Qaeda to follow this principle – and others – means that its own followers who are suspected and/or captured do not qualify for protection.

A ruling passed in 1942 states that unlawful combatants may be tried by the sort of irregular tribunals now contemplated by the US. The problem for George W Bush is that Al-Qaeda sympathisers view America as the enemy. In their eyes, the prisoners being held in Cuba are lawful combatants and, thus, entitled to protection.

The Guantanamo Bay prisoners may be kept under lock and key until the ‘cessation of active hostilities’ (ie until such time that Al-Qaeda and other terror groups convert to an ideology of peace in the world). The $64,000 question is whether or not believers in Islam are prepared to accept Capitalism?

As to whether the Guantanamo detainees ought to be shackled under such conditions is another matter entirely.