Crimes of War

January 2002

APV Rogers, OBE
Author, Law on the Battlefield, Fellow, Lauterpacht Research Centre for International Law, University of Cambridge
Interviews and Introduction by Stacy Sullivan

The answer to whether or not the detainees at Camp X-ray should be entitled to POW status is that one doesn’t know without more information. You really need to know what they were doing prior to their capture, and particularly at the time of their capture. And you need to know apart from that, what they were wearing, what sort of group they belonged to and questions of that kind.

The definition of prisoners of war is in Article 4 of the Third Geneva Convention, paragraph 2, which talks about militias, volunteer corps, and organized resistance movements. It lists the conditions that combatants have to comply with in order to be considered POWs – that of being commanded by a person responsible, having a fixed distinctive sign, carrying arms openly and complying with the laws and customs of war.

I suppose what the US government is saying is that these people weren’t in compliance with the terms of those conditions at the time of their capture. Washington’s argument is that this is not a case of doubt at all. It’s quite clear. These people are not in compliance with the prisoner-of-war status therefore they are not entitled to it. So you don’t even move on to Article 5, because Article 5 says that should any doubt arise as to whether a persons having committed a belligerent act, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present convention until such time of their status has been determine by a competent tribunal. They are saying, I suppose, that you don’t even need to go that far, because there is no doubt about these people’s status.

But really we don’t have the facts. We don’t know to what extent these people had a proper command structure, wore some sort of distinguishing features and complied with the laws of armed conflict. We just don’t know. If they had been captured and brought to the UK, they would be able to apply to the high court, and the high court would be able to inquire into their status and determined whether or not they were being lawfully held. I don’t know what the situation is in the United States, and it’s particularly complicated because they are at a US base where the federal court may not have jurisdiction. That makes it a bit more problematical.

I would make one point about the advantage of saying that they are not prisoners of war. I heard what Donald Rumsfled has said about that and I can see the force of his argument. As I understand it, he was saying that there are these rules that regular armed forces comply with, and because they comply with them, they are entitled to POW status. What’s the point of having these rules if people who don’t comply get the same protection?

The notion that you can’t interrogate prisoners of war is wrong. It’s standard practice, certainly within NATO to interrogate prisoners of war. But what you’re not allowed to do is torture them. But if you apply basic human rights standards, you can’t torture people or use inhumane or degrading treatment. So there is no advantage in that department.

The Geneva Conventions do say that prisoners of war must be released upon the cessation of hostilities. I get the impression that they are being interrogated about their Al Qaeda links – presumably information about the rest of the network – rather than about war crimes. But I would imagine that even if they are being tried for war crimes, at some state you have to charge them and begin the normal trial process. There may be some issue with repatriation. In recent years, the tendency has been to repatriate prisoners of war fairly quickly. It’s not been the case. After the Second World War it was sometimes years before prisoners of war returned. But of course that predated the 1949 Convention.

If you are treating them as prisoners of war, then all those rights to a fair trial are enshrined in the Geneva Conventions. But they are enshrined in human rights law too.

I can’t really see any benefits at all in saying that these people are not prisoners of war, except to uphold the rule of law. Basically, these people don’t comply with the law, and therefore they shouldn’t get he status that the law provides.

What one could say is that we don’t accept as a matter of law that these people are prisoners of war, but we will treat them de facto as prisoners of war and give them all the protection that the Geneva Conventions require and I think that is the line that the Red Cross would urge people to take. It seems quite sensible to me. I can’t see anything wrong with that, and you leave open what their real status is and that can be determined by a court at some later date.