The principal conventions governing prisoners of war are the Hague Convention of 1907 and the Geneva Convention of 1949. U.S. policies are spelled out in The Law of Land Warfare, Army Field Manual FM 27-10.
The Hague and Geneva Conventions lay out four criteria defining prisoners of war. This is a direct quote.
The conventions further stipulate:
If Al-Qaida had never attacked the United States, but had merely fought us in Afghanistan, 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 the actions of its operatives (or more to the point, considers any act that harms Americans legitimate). Open operations and conduct of operations in accord with the laws of war hardly need comment.
Persons, such as guerrillas and partisans, who take up arms and commit hostile acts without having complied with the conditions prescribed by the laws of war for recognition as belligerents, are, when captured by the injured party, not entitled to be treated as prisoners of war and may be tried 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 shown to have committed a war crime.
Nobody has much of a problem with dealing summarily with common criminals in time of war. If a soldier is caught looting or committing rape and punished by the enemy as a common criminal, probably nobody will complain much. War crimes become a problem when they are deemed militarily necessary by one party but crimes 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 laws and customs of war, notwithstanding the fact that the individual member concerned may have committed a war crime. Members of militias and volunteer corps should be especially warned against employment of treachery, denial of quarters, maltreatment of prisoners of war, wounded, and dead, improper conduct 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 World War II committed atrocities did not mean that Germans as a whole were denied prisoner of war status. Frankly, international law hasn't yet fully formulated how to deal with terrorist and criminal organizations, where individual captives may not have been demonstrably engaged in atrocities. However, given that the entire reason for the existence of such organizations is the commission of acts in violation of international law, it would make perfect sense to criminalize mere membership in such organizations. Certainly, members of such organizations can be reasonably suspected of violations of international law and as such, not entitled to the automatic status of prisoners of war.
Some critics of international law have argued that the definition of prisoner of war status is merely a ploy to give nation-states a legal monopoly on the right of warfare and to deny it to insurgencies.
Yes. And your point is? Nation-states are legal monopolies. They have a legal monopoly on the right to conduct war. There is no such thing as a legal right to violate the law. Nation-states also have legal monopolies on the right to print money, operate police forces, issue drivers' licenses and medical licenses, and make laws and punish lawbreakers.
If you want to replace one of these monopolies you have the legal right to do so once you've taken it over. If you fail, you'll pay the penalty.
And international conventions do recognize the right to prisoner of war status for insurgents and guerrillas provided they carry out their operations according to the rules of war.
FM 27-10 has a number of pertinent comments that elaborate on the meaning of international conventions:
If the enemy approaches an area for the purpose of seizing it, the inhabitants, if they defend it, are entitled to the rights of regular combatants as a levée en masse although they wear no distinctive sign. In such a case all the inhabitants of the area may be considered legitimate enemies until the area is taken. Should some inhabitants of a locality thus take part in its defense, it might be justifiable to treat all the males of military age as prisoners of war. Even if inhabitants who formed the levée en masse lay down their arms and return to their normal activities, they may be made prisoners of war (Par. 65).
In World War II, for example, the German army might have been justified in making prisoners of war of all the military-age males in an area of strong resistance activity. They were not justified in conducting summary executions or destroying houses.
Commando forces and airborne troops, although operating by highly trained methods of surprise and violent combat, are entitled, as long as they are members of the organized armed forces of the 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 requirement is not satisfied by the carrying of weapons concealed about the person or if the individuals hide their weapons on the approach of the enemy (Par. 64c).
Members of the armed forces of a party to the conflict and members of militias or volunteer corps forming part of such armed forces lose their right to be treated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military lines of the enemy for the purpose of gathering military information or for the purpose of waging war by destruction of life or property. Putting on civilian clothes or the uniform of the enemy are examples of concealment of the status of a member of the armed forces (Par. 74).
Persons, such as guerrillas and partisans, who take up arms and commit hostile acts without having complied with the conditions prescribed by the laws of war for recognition as belligerents, are, when captured by the injured party, not entitled to be treated as prisoners of war and may be tried 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, and weather. You can hide in the bushes if you spot an enemy patrol. That is an inherent part of warfare, and it is the job of the opposing soldiers to detect and stop these tactics. The purpose of requiring open carrying of arms and distinctive signs is precisely to protect civilians by making it easy to distinguish combatants and non-combatants.
Most guerrilla conflicts in history have been inherently illegal under international law. They were all, of course, illegal under the laws of the regime they were fighting. They were illegal under international law because they violated the rules about carrying arms openly and being distinguishable from civilians. They were inherently war crimes because they endangered civilians by making it impossible to distinguish combatants and non-combatants. In addition, most "wars of national liberation" employed as a matter of basic policy assassination of civilians, torture, kidnapping, and mass reprisals, and were therefore war crimes under any definition.
Conducting a guerrilla operation that is legal under international law is a tall order. It would require either maintaining a force continuously in the field in uniform and under arms, or part-time fighters who would have to behave as legitimate civilians at all times while among other civilians, then assemble to conduct openly armed operations at other times. If they were identified as guerrillas, they could be legitimately charged as spies once they returned to civilian clothes. And under no circumstances could they conduct reprisals against 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 were legitimate prisoners of war, but anyone who carried out terrorist acts against civilians 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 understood that POW status can be revoked if a person is shown to have violated the rules of war.
One of the frustrations of international law is that it's only feasible to prosecute war crimes against enemies who have been totally defeated or who hold no prisoners of their own. Enemies who hold prisoners are likely to deny POW status to their prisoners in retaliation. Enemies who have not been defeated won'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 mean wading into a conflict and taking on both sides. It will mean ignoring the outrage of lots of people who sympathize with the war criminals or who don't agree that they are criminals.
Created 8 December, 2001, Last Update 02 June, 2010
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