by Mowahid H. Shah
The Geneva Convention III Relative to the Treatment of Prisoners of War
(1949) is itself drawn from the customary laws of war set down in the 1907
Hague Convention Concerning the Law and Customs of War on Land. Under these
principles, there is a presumption that, during conflict, a captured detainee
be conferred the belligerent status of a POW, which would invoke applicable
protections under international law. If a captive status is in doubt, then a
"competent tribunal" must decide. The designation of status has to be done by
the Geneva process and not through arbitrary fiat or utterances of
officialdom. The Geneva Convention has been signed and ratified by the US
and, hence, is part of the law of the United States.
The US stance on the prisoners held at Guantanamo Bay is troubling. Secretary
of State Colin Powell, a former soldier, is cognizant of its precedental
impact should American soldiers be captured in an overseas conflict.
In a letter dated January 28, 2002, to Condoleezza Rice, National Security
Advisor, Kenneth Roth, Executive Director, of the New York-headquartered
Human Rights Watch stated: "[S]ince the U.S. government engaged in armed
conflict in Afghanistan - by bombing and undertaking other military
operations - the Geneva Conventions clearly do apply to that conflict." He
went on to point out that it makes no difference whether Taliban soldiers
wore uniforms with insignia or that the United States did not recognize the
Taliban as the legitimate government of Afghanistan - the Convention still
applies. In fact, he points out, past US practice is consistent with that
reading; during the Korean War, mainland Chinese soldiers captured by the
United States were treated as prisoners of war although the US at the time
recognized Taipei and not Beijing as the legitimate government of China.
America's European allies are equally disturbed by the Bush Administration
attempts to circumvent international law. My law school professor, the late
Dr. Thomas Mallison, spent a key part of his academic life tackling the
eligibility under international law for POW standing.
Initially, during the Vietnam War, the United States denied Geneva
protections to the Viet Cong. The closest parallel to the Bush Administration
position is the traditional policy of Israel in not conferring POW status to
captured Palestinian resistance fighters. Tel Aviv's contention was the
prisoners did not abide by the laws of war; therefore, the captors did not
have to abide by the Geneva Convention. During his State of the Union Address
of January 29, President Bush named Hamas, Hezbollah, and Islamic Jihad as
part of the "terrorist underworld," in effect, adopting the enemies of
Israel as the enemies of the US.
In 1943, huge numbers of German POWs were brought to the US, with most being
put into prison camps across the American South. They were given excellent
treatment and enjoyed robust diet similar in quantity to that partaken by
American soldiers guarding them. Some of the Germans were part of the Waffen
SS, which were involved in war crimes including atrocities against Jews. At
that time, however, 90,000 US soldiers were held by the Nazis and the concern
was that good treatment of German captives would be reciprocated by decent
treatment of American POWs. In fact, German prisoners were far better treated
than the dispossessed American citizens of Japanese ancestry who were
interned in camps pursuant to a Presidential directive by President
Roosevelt, following the Japanese strike on Pearl Harbor.
The treatment of German prisoners changed dramatically for the worse after
the defeat of Hitler's Third Reich in May 1945. American POWs had been
released by then. The story of German POWs in the US was documented by the
History Channel on its show first broadcast on January 27.
The above serves only to confirm that the principle of "might makes right"
continues to hold sway. And just as history is written by the victors, the
rules of detention for captured prisoners is subject to the whims of victors'
justice, making international law, in effect, a mere maidservant of power
[In 1853 the relative peace and stability of the Tokgawa era was rudely
interrupted by the appearance in Tokyo Bay of Commodore Perry, an American
naval officer, at the head of a fleet of black ships, demanding on behalf of
the United Staes - along with varius European powers, notably Britain - that
Japan should open itself to trade. Japan's long period of isolation could no
longer be sustained: like so much of the rest of the world in the nineteenth
century, Japan could not ignore the West and its metamorphosis into such an
expansive and predatory players. In 1858, faced with the continuing threat
of invasion, Japan signed the unequal treaties which opened up the country
to trade on extremely unfavourable terms, including the imposition of
extra-territoriality on its main ports, which excluded Western nationals
from the requirements of Japanese law. The unequal treaties represented a
major restiriction of Japan's soveriegnty. In 1859 Japan was obliged to lift
the ban on Christianity imposed over 300 years earlier. (p52)--Martin Jacques, "When
China Rules the World: The End of the Western World and the Birth of a
New Global Order," Penguin Press HC, The (November 12, 2009)]