|
||||||||||||||||
|
|||||||||||||||||
|
PROGRAMS
 |
| |
ABOUT US
|
| | CONTRIBUTE | | |
MEDIA ROOM |
| |
 |
|
|
||||||||||||
|
LCHR's Statement on Ensuring Protection for
Refugees
|
|
|
|
All Parties to the Conflict Must Treat Detainees Fairly and Consistent with International Humanitarian Law The Lawyers Committee for Human Rights (LCHR) urges all parties to the war in Iraq to comply with international humanitarian law—the laws of war. This position paper outlines five basic principles that should guide the conduct of the war to ensure protection of human rights. 1. The law of international armed conflict applies The war in Iraq is governed by the treaties and customary international law1 applicable in international armed conflicts. These include the four Geneva Conventions of 1949;2. the 1899 Hague Convention on Laws and Customs of War on Land;3 the 1907 Hague Convention on Laws and Customs of War on Land;4 and substantial portions of the 1977 Additional Protocol I to the Geneva Conventions as customary international law.5 The purpose of international humanitarian law, or the laws of war, is to protect persons and property that are, or may be, affected by an armed conflict and to limit the right of the parties to a conflict to use means and methods of warfare of their choice, thereby reducing the human and other costs of armed conflict. Along with the rest of the 190 nations that are parties to the Geneva Conventions, Iraq, the United States, and other parties to the conflict are legally bound to obey these rules. 2. The obligations of the Geneva Conventions do not depend on reciprocity International humanitarian law was crafted to balance considerations of humanity against military necessity, and does not depend on reciprocity. The obligations of the Geneva Conventions are absolute, and a nation is not justified in disregarding them just because its opponent violates them.6 All parties to the current conflict are bound by international humanitarian law, but even if one party disregards its obligations, that does not excuse its adversaries from compliance. The United States has considered itself bound by the Geneva Conventions and other humanitarian laws in previous wars despite violations of the law of war by its enemies, including Iraq, Vietnam, and North Korea,7 and should continue to do so in this war. 3. Civilian casualties should be avoided In any armed conflict, the right of the parties to chose methods or means of warfare is not unlimited.8 International humanitarian law requires that parties to a conflict “shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” 9 Civilians are to be protected from military operations.10 The civilian population as such, as well as individual citizens, may not be the target of an attack.11 Indiscriminate attacks, i.e. attacks which are not directed at a specific military objective, those which employ a method or means of combat which cannot be directed at specific military objective, or those which employ a method or means of warfare the effects of which cannot be limited as required by international humanitarian law, are prohibited.12 Attacks that can be expected to cause incidental harm to civilians or civilian objects or a combination of the two that would be “excessive in relation to the concrete and direct military advantage anticipated” are forbidden. 13Precautions must be taken to protect civilians from collateral damage.14 Parties are forbidden from using civilians as “human shields” to protect military targets; even if one party violates this rule, the other party is not excused from their legal obligations to take precautionary measures to protect those civilians.15 4. Protection of persons not taking part or no longer taking part in hostilities Persons not taking part in hostilities as well as those who are no longer taking part in hostilities must be treated with respect and protected in all circumstances. 16 Civilians Civilians must be treated with respect and treated humanely at all times. Among other things, violence to their lives, health, physical or mental well-being - in particular murder, torture, corporal punishment, mutilation, outrages on personal dignity, including humiliating and degrading treatment, hostage-taking, and collective punishments are forbidden. Civilians should not be interned except when necessary for “imperative reasons of security.”17 When civilians are inadvertently detained along with combatants, they should be sorted out and released as soon as possible. In the Gulf War, for example, the United States conducted 1,196 tribunals to determine the status of detainees.18 These tribunals were critical in assuring fair treatment of detainees, for as the Department of Defense noted in its report to Congress, “Operation Desert Storm netted a large number of persons thought to be [enemy prisoners of war] who were actually displaced civilians.”19 The United States also held numerous such tribunals during the Vietnam War. 20 In addition, “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying power or to that of any other country, occupied or not, are prohibited regardless of their motive.”21 Temporary evacuations for security or imperative military reasons are allowed, but may not involve the transfer of persons outside the bounds of the occupied territory except “when for material reasons it is impossible to avoid such displacement.”22 This means that protected persons should not be transferred to places such as Guantanamo, but must be kept in Iraq. Should Iraq fall under military occupation, the occupying powers will be obliged to ensure that adequate food, medical supplies, and other necessities are provided for the civilian population. 23Humanitarian relief organizations must be allowed full access to populations in need of assistance.24 Prisoners of War: Prisoners of war must be treated with respect and protected in all circumstances. POWs are entitled to humane treatment and freedom from torture;25 protection from violence, intimidation, insults and public curiosity;26 to safe and sufficient quarters;27 not to be held in close confinement except where necessary to safeguard their health;28 to adequate medical care;29 to religious freedom;30 and to the full panoply of other protections provided by the Third Geneva Convention. The requirement to protect prisoners against “insults and public curiosity” prohibits the parading of detainees before the public and other forms of public display and humiliation. POWs must be released “without delay after the cessation of active hostilities.” 31 Persons entitled to POW status are described in Article 4 of the Third Geneva Convention.32 They would include: (1) members of the armed forces; (2) members of other militias and volunteer groups, so long as they are commanded by a person responsible for his subordinates, wear fixed distinctive signs, carry arms openly, and conduct their operations in accordance with the laws and customs of war; (3) participants in a levee en masse, that is “inhabitants of a non-occupied territory who upon approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” 33Two points are particularly important.
Civilian Internees, Including Unlawful Combatants Civilians should only be interned “for imperative reasons of security”36 or “probable cause incident to criminal investigation.” 37This category would include persons engaging in belligerent acts but who are determined by an Article 5 tribunal not to be entitled to POW status under article 4 of the Third Geneva Convention (what the U.S. government has recently referred to as “unlawful combatants”). Such persons may be prosecuted merely for engaging in combat, as well as for any war crimes they may have committed. Iraqi nationals who are unprivileged belligerents remain protected by the Fourth Geneva Convention, and are entitled to a fair trial before they can be punished.38 The same rule applies to members of Al Qaeda or other armed groups who may be found in Iraq and suspected of crimes. Depending on their nationality, some of these may be protected by the Fourth Geneva Convention;39 those who are not protected persons under the Fourth Geneva Convention because of their nationality are nonetheless entitled to fair and humane treatment under Article 75 of Protocol I, which is part of customary international law. 40In particular, they are entitled to fair trials. 5. Persons who commit war crimes should be prosecuted Persons who commit war crimes must be prosecuted whatever their nationality. The Geneva Conventions impose on parties the obligation to prosecute persons who commit serious violations of international humanitarian law, including grave breaches, and also provide that penal proceedings must be fair and impartial.41 In addition, international humanitarian law provides certain kinds of procedural protections to particular types of defendants. For example, POWs accused of war crimes must be tried and punished in accordance with articles 99-108 of the Third Geneva Convention. These sections require that POWs be sentenced “by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power.”42 That means if a U.S. soldier would be tried before a court-martial, an Iraqi POW must also be tried in front of a court-martial using the same procedures (and not, for example, in front of a military commission employing different procedures). In addition, POWs accused of war crimes are entitled, among other things, to be represented by counsel, the assistance of an interpreter, fair notice of the charges against them, and the right to appeal. Persons who are not entitled to protection as POWs nevertheless have the right to fair trial under the Fourth Geneva Convention and article 75 of Protocol I as customary international law. This category of persons includes so-called “unlawful combatants” or unprivileged belligerents. 43They must be given “regular trial” by a “competent court” 44and are entitled, among other things, to be presumed innocent, to receive fair notice of the charges against them, to present evidence in their defense, to call witnesses, to be assisted by counsel, and to appeal their convictions.45 The civilian courts of Iraq should be restored to operation as soon as possible. 46 Endnotes 1As the Restatement (Third) of Foreign Relations explains, "[c]ustomary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. Restatement (Third) of Foreign Relations § 102.2 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T 3114, 75 U.N.T.S. 31 [hereinafter First Geneva Convention]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [herinafter Second Geneva Convention]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T 3316, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention IV]. 3 Hague Convention (II) with Respect to the Land and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803. 4 Hague Convention No. IV, 18 October 1907, Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, T.S. 539 [Hereinafter 1907 Hague Convention]. 5 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), June 8, 1977, arts. 48, 51-52, 1125 U.N.T.S. 3, 25-27 [hereinafter Protocol I]. Although the U.S. has never ratified Protocol I, the U.S. considers many of the provisions in the Protocol to be applicable as customary international law. See International and Operational Law Department, The Judge Advocate General’s School, Operational Law Handbook ch. 2 at 11 (2003) [hereinafter Operational Law Handbook]. 6 See article 1 common to the four Geneva Conventions (“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”). The first three articles of all four Geneva Conventions are identical, and are often referred to as the “common” articles, e.g. “Common Article 1.” 7 Operational Law Handbook at App. B, p. 36 (describing reasons to comply with the law of war even if the enemy does not); International and Operational Law Department, The Judge Advocate General’s School, U.S. Army, Law of War Workshop Deskbook 98-99, nn.61-67 (June 2000) [hereinafter Law of War Deskbook]. 8 Protocol I art. 35(1). 9 Protocol I art. 48; 1907 Hague Convention art. 22. 10 Protocol I art. 51(1). 11 Protocol I art. 51(2). 121907 Hague Convention Annex art. 22; Protocol I art. 51(4) and (5). 13Protocol I art. 51(5)(b). 141907 Hague Convention Annex art. 25, 26, 27; Fourth Geneva Convention art. 19; Protocol I art. 57(2). 15Protocol I art. 51(8). 16See Article 3 common to the four Geneva Conventions. 17Fourth Geneva Convention art. 78. Even when internment is allowed, persons must have the right to appeal their interment and are entitled to periodic review of their continued detentio 18Law of War Deskbook at 79; DoD Gulf War Report at 663. 19DoD Gulf War Report at 619; see also id. at 663 (noting that as a result of the 1,196 tribunals, 886 detainees were found to be civilians, while 310 were classified as prisoners of war, and no civilians were found to be unlawful combatants). 20United States Military Assistance Command, Vietnam. Directives No. 381-45, Military Intelligence: Combined Screening of Detainees (Dec. 27, 1967), Annex A, reprinted in Marco Sassoli & Antoine Bouvier, How Does Law Protect in War? 780-781 (ICRC 1999). 21Fourth Geneva Convention art. 49. 22Fourth Geneva Convention art. 49. 23Fourth Geneva Convention art. 55; Protocol I art. 69. 24Fourth Geneva Convention art. 59; Protocol I art. 71. 25Third Geneva Convention art. 13, 17. 26Id. 27Third Geneva Convention art. 19, 22, 23. 28Third Geneva Convention art. 21. 29Third Geneva Convention art. 29, 30, 31. 30Third Geneva Convention art. 34. 31Third Geneva Convention art. 118. 32Persons entitled to prisoner of war status include: (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. 33Third Geneva Convention art. 4(A)(6). 34Third Geneva Convention art. 99-108. 35It is also worth noting that during the Vietnam war, Viet Cong and other guerilla forces were afforded POW status so long as they were captured in open combat rather than in acts of sabotage or spying. See United States Military Assistance Command, Vietnam. Directives No. 381-45, Military Intelligence: Combined Screening of Detainees (Dec. 27, 1967), Annex A. 36Fourth Geneva Convention art. 78. 37Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees §1-6(10) (1 October 2024). 38See Fourth Geneva Convention art. 4 (“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” and who are not protected by one of the other conventions and who are not nationals of a neutral state or state allied with the Occupying Power). 39Fourth Geneva Convention art. 4. 40Protocol I art. 75 (applying to “persons who are in the power of a Part to the conflict and who do not beneift from more favourable treatment under the Conventions or under this Protocol”); Operational Law Handbook ch. 2 at 11 (recognizing art. 75 as either customary international law or a favored practice). 41 Fourth Geneva Convention art. 146 42Third Geneva Convention art. 102. 43The Law of Land Warfare, Field Manual 27-10, par. 247 (1976) ( “[T]hose protected by Fourth Geneva also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war.”). 44Fourth Geneva Convention art. 71. 45Fourth Geneva Convention art. 72; Protocol I art. 75(4). 46Cf. Fourth Geneva Convention art. 64. |
|||||||||
|
|||||||||||||
