What's Fair In War?

By John Cloud

It seems weirdly priggish to discuss the brutalities of war and the technicalities of law in the same breath. But it was Defense Secretary Donald Rumsfeld, who has heretofore made no secret of his impatience with legalisms, who launched this salvo last week: "It's a violation of the Geneva Convention," he angrily told CNN, "[for Iraqi TV] to be showing prisoners of war in a humiliating manner." Rumsfeld was reacting to news that al-Jazeera network had broadcast Iraqi TV images of bruised, terrified American prisoners of war being questioned by Iraqi reporters. Opponents of the war responded that the U.S. had consistently belittled the Geneva Conventions with its gloves-off handling of suspects detained in the war on terrorism. The implication was that American POWs could expect no better.

So what exactly are the Geneva Conventions, and who is really abusing them? A collection of four agreements on how to fight honorably, the conventions were drawn up in Geneva in 1949, partly in response to World War II atrocities. Today they are widely accepted by the international community, including the U.S., which ratified them in 1955, and Iraq, which agreed to them in 1956. The 85,000-word conventions spell out rules for the ethical treatment of wounded and ill soldiers and sailors at battle (the first and second conventions), POWs (the third, which Rumsfeld invoked) and civilians (the fourth). The basic idea behind all four is that those in wartime who cannot or do not pick up a weapon must be treated with humanity. Not only do the combatants have an obligation not to hurt civilians, POWs and wounded fighters, but in many cases, they must also offer assistance. That may sound moistly idealistic as open combat rages in Iraq, but the conventions do have consequences: in recent years Rwandan and Yugoslav leaders have been imprisoned for wartime transgressions of the Geneva Conventions and related international laws.

Gulf War II has already seen some textbook Geneva infractions, if reports from the front are true: Iraqi fighters who reportedly quartered in a hospital were breaking Annex I of the first convention, which prohibits military activity in medical facilities. Those Iraqis who have allegedly waved white cloths and then started shooting at unwitting G.I.s are committing what the Geneva agreements quaintly call "perfidy," as are any who have tried disguising themselves as civilians. Iraqi officials accuse the U.S. of war crimes too--namely dropping bombs on civilians (a Geneva infringement only if intentional). It's hard to take such claims seriously when they come from a regime that has so enthusiastically defied Geneva for years: gassing civilian Kurds and torturing American and Iranian POWs in previous wars are just two examples.

But those who specialize in international law are worried that the U.S. has lost some of the moral authority it needs to ask others to uphold the conventions. Some experts complained last year when U.S. special forces in Afghanistan wore local garb and beards in an effort to blend in. There was talk even within the Pentagon that such deceptive appearances could amount to perfidy in a war-crimes trial. The official line was that the Americans were wearing the uniform of the Northern Alliance. "But that may be a distinction without a difference for someone from the Arab community," says Duke law professor Scott Silliman, the top U.S. Air Force lawyer in Gulf War I.

Many Arabs are still deeply angered by the U.S. treatment of Taliban fighters and suspected terrorists at the U.S. naval base in Guantanamo Bay, Cuba. When the detainees first began to arrive there in January 2002, Rumsfeld said the U.S. was planning--"for the most part"--to treat them in a manner "reasonably consistent" with the Geneva Conventions. Human-rights groups howled that he was waffling on the long-standing U.S. commitment to the global agreement. The Bush Administration argued that the conventions weren't appropriate for many detainees because they were essentially criminals--that is, terrorists without countries or uniforms who do not "carry arms openly and respect the laws and customs of war," as the third convention states in defining who should be classified as a POW and therefore enjoy its protections.

In recent months Guantanamo commanders have said that even though the detainees aren't POWs (they are called "unlawful combatants"), the third convention is being honored at the base. Red Cross representatives have verified that the detainees are generally treated humanely, with one exception. The convention states that if any doubt exists as to whether a detainee is a combatant or a criminal, a "competent tribunal" should decide. The Guantanamo prisoners have had no legal proceedings.

The third convention alone has 23,000 words, but much of the recent bickering has centered on these: "Prisoners of war must at all times be protected ... against insults and public curiosity." Rumsfeld said the Iraqi TV and al-Jazeera broadcasts violated that rule, since the Americans, frightened and possibly roughed up by captors, were asked pointed questions--Where are you from? Why are you here?--before a TV audience. If it turns out that other Americans in their unit were executed (the broadcasts also showed a group of dead Americans, one of whom had a visible gunshot wound to the head), a much more serious crime--a "grave breach" of Geneva, in its stiff parlance--will have been committed.

Last week many Americans were suddenly citing the third convention; the NASDAQ said al-Jazeera's "alleged violation" of Geneva was a reason it was booting the network from its broadcast facility. Technically speaking, news outlets aren't signatories to the conventions, so they aren't bound by them. But al-Jazeera gets some Qatari government funding, and Iraqi TV is state run.

What about American media treatment of Iraqi POWs? A Pentagon spokesman said last week that all journalists embedded with the troops had agreed not to show the faces of Iraqi POWs, which would open the prisoners to "public curiosity." But by now hundreds of Iraqi POWs have been shown onscreen and in print (including in TIME). In one worrisome story, aired March 22 on NBC Nightly News, a camera operator shone his lights in the faces of kneeling, bound Iraqi captives. "As I reach over here," said correspondent Kerry Sanders, leaning in to pick up a POW's food packet, "you can see that the U.S. military has provided a humanitarian daily ration." Explains NBC News president Neal Shapiro: "We don't intentionally show the faces of Iraqis. But sometimes the video comes in quickly, and we don't get a chance to edit it."

Should the U.S. commander have stopped the report to be in compliance with Geneva? Perhaps. "When you are dealing with these embedded media, you have to wonder how much the U.S. government must try to control them," says Silliman, the former Air Force attorney. He says this responsibility is something Pentagon commanders take seriously; there are scores of military lawyers deployed with the troops to help answer such legal questions. It may seem strange to think of lawyers running around the desert with copies of a 54-year-old Swiss treaty, but as Rumsfeld knows, it is that very document that could help those young American captives get home safe. --With reporting by Perry Bacon Jr./Washington

With reporting by Perry Bacon Jr./Washington