On March 31, 1999, Serbian forces took three American soldiers captive near the town of Kumanovo in the border area between Macedonia and Serbia.The larger Serbian patrol overtook and seized the U.S. servicemen, who were there as part of a NATO force put in place to secure Macedonia's border with Kosovo. The Serbs held the Americans captive for 32 days before releasing and returning the U.S. servicemen to their unit. For at least part of their captivity, the American POWs were subjected to clear violations of the Geneva Prisoner of War Convention.
Legal protections begin for POWs at the moment of capture. The Geneva Convention is triggered at the "time [POWs] fall into the power of the enemy." Protections are afforded the POW irrespective of the prisoner's physical location; the very fact that the enemy holds a POW provides protection. Thus, in this case, the Serbian sergeant or private at the place of capture is required to observe the same standards of treatment as expected of the officer in charge of the prison in Belgrade.
The Convention mandates that POWs be removed from the combat area as soon as possible so that POWs are not endangered (Article 19). The delay of nearly a week in moving the captured U.S. soldiers from the combat area to Belgrade would appear to have fallen short of acceptable legal standards. Moreover, the fact that the captives could hear friendly aircraft and falling bombs could be evidence that the place of confinement was not sufficiently removed from the combat area.
Media accounts indicate that the three Americans made no effort to resist capture, though they apparently were beaten at the scene. Article 13 of the Convention specifically prohibits acts, which "seriously endanger the health of a prisoner of war," and mandates that "prisoners of war must at all times be humanely treated." If the beating is severe enough to cause "great suffering or serious injury to body or health," then such mistreatment constitutes a "grave breach" of the Convention.
The prisoner of war is required by Article 17 to provide his name, rank, date of birth and serial number. While the enemy may request more information, the captive is not required to provide it. No punishment can be inflicted on the POW for refusing to answer such questions. In this case, it appears that the Serbs asked for the address in the United States of one captive's family. When the American failed to accede, his captors beat him. As there was no obligation to provide the information, punishing the captive in any way for failing to do so was a violation of the law.
POWs may be disarmed and have any military property confiscated. However, personal property must be left with the prisoner or, if taken for safekeeping, a receipt must be provided. Proof of identity cannot be denied the captive. If the capturing force takes the POW's identity card, then it is obligated by Article 18 of the Convention to provide the POW a substitute.
Of course, the liberty of the POW will be restricted. But at the same time conditions of captivity are extensively covered by the Convention. It is, for example, prohibited to hold POWs in a penitentiary (Article 22). POWs are not criminals. Yet contrary to this standard, Serbian forces held the American POWs in jails.
The POW must be fed and provided medical attention. The American POWs arrived in Belgrade having suffered a physical beating and should properly have been examined by a physician. In addition, they were held in solitary confinement and denied access to the outside, a violation of Article 38.
At the very outset of their captivity, the U.S. Department of Defense avoided calling the captured American servicemen "prisoners of war." The U.S. government's reluctance to classify them as such was a likely related to the application of the U.S. War Powers Act, which requires the president to notify Congress of military deployments involving combat. Presidents have questioned the Act's constitutionality, resulting in a reluctance to use the word "war." At the same time, as a matter of international law, the Geneva Conventions apply to any armed conflict and do not require a defined "war."
Though clearly mistreated by their captors, the U.S. servicemen appeared to have no lasting physical injuries. However, the impact of being held as a POW is also a difficult psychological ordeal. At the total mercy of the captor, the POW is in a position of extreme vulnerability.
The protections afforded by the Prisoner of War Convention are crucial for maintaining humane standards of treatment at a time when raw emotions can consume decision-making and distort the proper administration of a POW camp.
Knowing that the conditions under which he is held are highly regulated by the law of war may help alleviate some of the fear experienced by the POW. Few nations would openly flaunt the mistreatment of POWs. Nonetheless, abuses occur. They should, however, be seen exactly for what they are: deliberate violations of the law, not mere accidents of war.
H. Wayne Elliott, S.J.D., Lieutenant Colonel, U.S. Army (Retired), is a former chief of the international law division at the Judge Advocate General's School, U.S. Army.