Mankind goes by the path of progress and evolution. People have made a lot of important discoveries in all known sciences. They learned how to control natural forces and managed to defeat a lot of problems, such as some illnesses and disasters, which existed in the past. Unfortunately they still didn’t study to control their tempers and didn’t find the means to stop wars on the planet. All they managed to do was to invent certain rules and regulations, which would make these wars not the mere bloodshed but more or less civilized battles where the rights of innocent can be protected.
In ancient times all the prisoners of the losing side or in a particular battle were killed in order to prevent the possible danger in the future. Later, it was found that the prisoners can be used as heavy labor and so now they were not killed, they were treated as slaves but their conditions of life were awful. Beginning from the 19th century the situation has changed. A number of conferences was held, which resolved to improve the treatment of prisoners. The result of these conferences became a number of conventions that suppose human and tolerant treatment of prisoners. The Hague Convention (Chapter II of the Annex) adopted in 1907 pays special attention to the treatment of prisoners of war. The Geneva Convention is among the main acts which regulates the treatment to the prisoners of war (POW).
The Geneva Convention as the Main Document Regulating POW Treatment
The problem was analyzed more carefully in Geneva Convention (APPENDIX E,“Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949”). According to this convention to the category of prisoners of war we can refer the following categories of prisoners: members of militias and volunteer corps who are the part of armed forces; members of other volunteer corps or militias operating inside or outside their territory; representatives of regular armed forces who don’t accept the legal government; persons who aren’t members of armed forces but accompany them; persons who have belonged to the armed forces of the occupied territory; members of crew of civil aircraft or the merchant marine; people of non-occupied territory who resist the invading forces.
The next part of the convention deals with the rights and duties of prisoners of war. According to it such humanitarian organizations as the Red Cross and others can take care of prisoners of war and provide them with all necessary things.
It’s very important to note that prisoners aren’t in the hands of individuals or organizations who have caught them, they belong to the Power of the enemy country. So, irrespective, aggressive or rude attitude of the individuals must be penalized by the Law. The Detaining Power of the country has the responsibility for the good treatment of prisoners. “Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention (Department of the Navy, 1955). If the transformation is held in such a way the responsibility is on the Power. In cases when that Power isn’t able to provide the prisoners with all necessary conditions and treat them with respect the Power, who transferred these prisoners, must correct the situation.
The humanistic attitude to prisoners is very important. Acts of the Power that can cause the death or damage seriously the health of a prisoner are forbidden. Such acts mean breach of the Convention. The prisoners must be protected from any kind of violence, medical experiments, public insults and media interference in their private life. All the prisoners must be provided with necessary medical care. Prisoners in no way must be subjected to repressions.
The respect is another important point in treating prisoners. Prisoners must be treated with respect for their honor and their persons, because every person in the world has such a right. Women who are imprisoned must be treated with the regard due to their sex. “Prisoners of war shall retain the full civil capacity, which they enjoyed at the time of their capture. The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires” (Department of the Navy, 1955).
The Power that has detained the prisoners must provide their maintenance and medical care they require free of charge. According to the Convention all the prisoners must be treated equally without any distinction depending on race, political opinion, religious belief, nationality or any other distinction.
In the process of questioning the prisoner can give information only about his first name, surname, date of birth, rank, personal number and army and answer the questions that deal with these answers. To all the other questions the prisoner isn’t obliged to answer. To prove his identity the prisoner can show the identity card on the demand but in no way this card can be taken away. No kind of repression, physical or mental torture can be applied to the prisoner of war to get some extra information from him. The questioning must be held in language the prisoner can easily understand.
The question of prisoners’ property requires our attention, because these rules of the Convention are often infringed. All the things of personal use and articles necessary for personal protection such as gas masks and metal helmets must be left in prisoners’ possession. The only things that are withdrawn are military equipment, arms, military documents and horses. Things that deal with their clothing or feeding must also remain in their possession. Money must be taken away from the prisoner of war only by the order of an officer. “Such objects, likewise sums taken away in any currency other than that of the Detaining Power and the conversion of which has not been asked for by the owners, shall be kept in the custody of the Detaining Power and shall be returned in their initial shape to prisoners of war at the end of their captivity.” (Department of the Navy, 1955).
Prisoners as soon as they are captured must be evacuated from the battlefield. Only seriously ill prisoners for whom the evacuation can do more harm than good should be not evacuated.
Prisoners of war must be provided with shelters to protect them from air bombardment. They must have a possibility to hide in these shelters after the signal of alarm. They must be removed from the places where the fire of combat zone can take place. All the protective measures that are applied for the local population must be applied for the prisoners of war. The camps of prisoners of war must be marked with the capital letters PW or PG, so as to be seen from the air. Only camps of prisoners of war can be marked with such letters.
So, as we can see Geneva Convention gives us basic information about prisoners of war and their rights. What is especially important this convention states that tortures and repressive actions towards prisons of war are illegal and will be punished and that was the first step in the direction of democracy and human policy. This convention was signer out by the most civilized counties, which proclaimed the adherence to the ideals of humanism and democracy.
The theoretical basement of prisoners’ treatment is perfect nowadays, the problem is that not all principles of the conventions are realized in practice. During the twentieth century the Soviet Union and Germany with Nazi Party at the head were very cruel against their prisoners. Hitler’s plan to kill people who didn’t belong to the Arian race, so-called “perfect race” or to make them slaves was really far away from the humanistic principles.
Despite the United States willingly signed up the Geneva Convention Korea and Vietnam conflicts are characterized by atrocious tortures of prisoners. The United States can’t boast of good treatment of prisoners of war. The international community criticized The States for its incorrect attitude to prisoners of Cuba, Abu Vietnam, and Iraq. That is the main contradiction between written documents and their realization in practice. Some countries lead unfair policy promising to follow the principles of conventions and not doing it. Such policy can be called “hypocrisy”. Unfortunately, there are countries which demand to treat their prisoners accordingly to the status of prisoners of war but break the rules when it comes to the prisoners of the same status from other countries and seek for different loopholes in order to break the regulations proclaimed by the convention.
American Police Towards Prisoners
We will analyze American treatment of prisoners on the example of Iraqi and Afghan prisoners. In spring of the year 2004 people all over the world saw a number of photos where American soldiers tortured Iraqi prisoners at Abu Ghraib prison in Iraq. It was an international scandal that couldn’t leave this problem without authorities’ attention. Defense Secretary, Donald Rumsfeld, comments this in a such way: “These events occurred on my watch. As secretary of defense, I am accountable for them and I take full responsibility….I feel terrible about what happened to these Iraqi detainees….It is important for the American people and the world to know that while these terrible acts were perpetrated by a small number of U.S. military, they were also brought to light by the honorable and responsible actions of other military personnel” (Geoffrey, 2004). Despite excuses and promises to take necessary actions the problem is still burning as it uncovered more serious problem of breaking the rules of the Convention. People can’t be sure if that was single case of such treatment or it was one of hundreds of cases that became known by the public.
The United States of America, the country which for many centuries served as an example of the liberal attitude and democracy break the norms of the convention and mistreats prisoners.
Prisoners have always been the necessary attribute of every war. Prisoners can let out State secrets, so they can be very important in the strategically directed policy of the country. Prisoners can give information about the seize of the enemy army, its location, the location of strategically important objects and a lot of other useful information. That’s military needs to get information from the prisoners. Of course, if the prisoners are real patriots of their countries and are well-trained soldiers it’s very difficult to get an information from them. Sometimes military uses not only legal methods in their work. Tortures, bullying, blackmailing are often used in the attempts to get necessary information from the prisoners. These actions are not legal according to the conventions of prisoners’ treatment.
The War against Terrorism
After the events of September 11 the war against terrorism has become a state policy and has affected all sphere of social, political and even cultural life of the United States. The trial on certain non-citizens of the US became the part of this war. President Bush announced after the events of the September 11 about the terrorist attack “on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces. He also expressed an opinion that “there is a necessity in effective conduct of military operations and prevention of military attacks, which makes it possible to detain certain non-citizens and if necessary, to try them for violations of the laws of war and other applicable laws by military. tribunals.” (Elsea, 2001) All the attacks will be treated like the acts of war but not like criminal acts and react accordingly. Such a policy makes it possible to regard any attacks as a violation of the international law of war and give the US an opportunity to prosecute “terrorists” through the special military commission without the federal court. The change of the status of criminals changes the conditions of prosecution of these criminals. All these changes were expressed in the Military Order of November 13, 2001 by President Bush. Bush explains the necessity of such act by the threat of terrorism, which violates numerous international laws and these violations can not be treated as criminal acts any more. Terrorist attacks of September 11 had no precedent in the history of the US and the President insisted on the necessity of changes. Some specialists expressed concern that such an Order can help terrorists to escape in the case if they are treated like legitimate state actors and lawful combatants. Their concerns are not justified as the acts of terrorists against the United States can not be recognized as the legitimate acts and they don’t belong to the armed forces and thus can not be treated like lawful combatants. This way anybody who takes part in unlawful acts of war against America should be treated as war criminals and prosecuted by military commissions. They do not also achieve the status of the prisoners of war guaranteed by the Geneva Convention. A military commission, created for trying war criminals can be created by one or several nations. This order is widespread to all terrorist caught as in the territory of the US same as overseas. It means that any person suspected in terrorism will be treated as war criminal and prosecuted without court and trial. Proponents of such a decision give a lot of arguments in order to support their thesis. They state that treating some criminals, like Osama bin Laden in federal court can not be accomplished since there are no appropriate rules and procedures. Public courts can be used by terrorists in order to make the government to reveal some secrete information and used by terrorist for further attacks. The court can become an object of manipulation for different international organizations. It also can put judges and juries under threat. Multiple appeals and lots of evidence can make protract the court and thus give the criminal an opportunity to go unpunished. There are opponents of the Law against the Terrorists. They state that the order violates many international laws. This approach can be applied to treat any social vices and looking for enemies everywhere. If the war proves to be successful, war tribunals can be applied to deal with drug dealers or robbers. In this case democratic principles will be severely violated as military tribunals have nothing to do with the democracy. Some specialists also state that verdicts passed in the secret military trail will lack legitimacy. “Determining who qualifies as an “enemy belligerent” for acts committed on U.S. territory, however, would likely present greater constitutional difficulties. President’s order appears to be broader than the authority cited by previous Presidents, and may cover aliens in the United States legally who are citizens of countries with which nation is at peace. It may be seen as conflicting with certain acts of Congress“ (Elsea, 2001. P. 8).
So, terrorists real or imaginary, become the criminals of war and thus become dependant on the military commissions. Their own countries are not able to protect them any more. They have not protection from the law as well. Humanitarian norms applied to the prisoners of war (POW) were determined by historical necessity and terrible examples of the bad attitude to the captivities in the past. The Geneva Convention became an embodiment of humanistic principles and rational counting which let to the same principles of humanism during the period of war. The United States of America signed this Convention and applied its principles and regulations to its military system. Moreover, since the time the Convention was ratified U.S. played a prominent role in proclaiming its principles all over the world. The war against terrorism, proclaimed after the September 11 changed the situation. U.S. shows lack of desire to obey the norms and principles proclaimed by the Geneva Convention.
Supreme Court and Habeas Corpus
Supreme Court is the highest judiciary organ in U.S but new regulations adopted as the part of the war on terrorism contradict this thesis. Military commissions, which administer justice during the peaceful time contradict the very idea of democracy.
In addition, the Military Commissions Act adopted in 2006 repeals habeas corpus jurisdiction. One of the sections of the act states that “alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination” (Nutting, 1960). This Act contradicts the Geneva Conventions. Habeas Corpus translated like “you have the body” from Latin is a name of legal instrument that lets escaping unlawful imprisonment. Using the habeas corpus procedure the country of the imprisoned person can address to the country, which captured him and ask for court, which would defined the lawfulness of the imprisonment. Habeas Corpus is an important instrument, designed to support democracy all over the world and serve as a mean to stop unlawful actions.
Habeas corpus has it’s own writ, known as the “Great Writ” and this writ is a legal proceeding document, with the help of which the prisoner can protect his rights and challenge the propriety of his custody. Every prisoner can ask the court to allow him to use the writ of habeas corpus. “Although the form of the writ of habeas corpus implies that the prisoner is brought to the court in order for the legality of the imprisonment to be examined, modern practice is to have a hearing with both parties present on whether the writ should issue, rather than issuing the writ immediately and waiting for the return of the writ by the addressee before the legality of the detention is examined” (Carpenter, 1902).
In such a case the prisoner can be released by the order of a court. In fact habeas corpus define no rights and it doesn’t have serious capital principles but it can guarantee individual liberty and that’s really important.
This writ is mentioned in the Constitution of the United States and it used to be wide spread on the territory of the States – according to the decisions of the Warren Supreme Court the use of the writ was greatly expanded in 1960s and then the situation has changed. The decisions of Burger Court have narrowed the use of the writ. Even more the writ was narrowed by the Anti-Terrorism and Effective Death Penalty Act of 1996 “imposing a one-year deadline (statute of limitation) and dramatically increasing the federal judiciary’s deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action” (Geoffrey, 2004).
When the justice is administrated by the military tribunals or military commissions the prisoners lose their right for the writ of Habeas Corpus and this can be qualified as the violations of their rights.
Military is an institution, which deals with everything connected with the war and thus it deals with the prisoners of war. In many cases prisoners can very valuable source of information but using tortures, blackmailing or threatening in order to get the information is prohibited by the norms of international law. In order to regulate the conditions of captivating and treating the prisoners of war the number of conventions has been ratified and signed up by the most civilized countries. The Geneva Convention is the basic document that regulates the conditions of keeping and treating the prisoners of war, their rights and duties of the countries, which capture them. The war on terrorism started in the U.S. after the September 11 and number of acts, issued during this period, contradict some statues of the Geneva Convention. The government of the U.S. didn’t recognize the status of the prisoners of war in anybody connected to terrorism and treats them as war criminals. Military commissions, which make verdicts for such criminals instead of the court, can violate international laws about the prisoners of war. If the situation doesn’t change the United States of America can give a bad example to less civilized counties and make the violation of the international laws and Geneva Convention a usual practice in the modern world. This can reduce to zero a lot of attempts of the world community to bring the norms of humanism into our life.
1. Barkham, Jason,”Information Warfare and International Law on the Use of Force”, 34 New York University Journal of International Law and Politics 57, 2001.
2. Carpenter, A.H. “Habeas Corpus in the Colonies.” The American Historical Review. Vol. 8., No. 11., October 1902, pages 18-27.
3. Department of the Navy. Office of the Chief of Naval Operations. Law of Naval Warfare, NWIP 10-2. September 1955. Appendix E, Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, pp. E-1 to E-41.
4. Elsea Jennifer. “Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions”. CRS Report for Congress, 2001.
5. Fisher Louis. Nazi Saboteurs on Trial: A Military Tribunal and American Law. University Press of Kansas, 2003.
6. Federman Cary .The Body and the State: Habeas Corpus and American Jurisprudence. SUNY
Irons Peter. 1999. A People’s History of the Supreme Court. Viking, 1999, pp. 186-189, 2006.
Nutting Helen A. . “The Most Wholesome Law–The Habeas Corpus Act of 1679.” The American Historical Review. Vol. 65., No. 3, 1960, (pages 527-543.
9. Stone Geoffrey R. Perilous Times, Free Speech in Wartime From the Sedition Act to the War on Terrorism. Norton, 2004.
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