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Chapter Five

Protected Persons


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At the present time war is carried on by regular armies: the people, the peasantry, the townsfolk play no part in it, and generally have nothing to fear from the sword of the enemy...As soon as your enemy has laid down his arms and surrendered his body, you no longer have any right over his life.

Emmerich de Vattel, The Law Of Nations (1758)


I am again confronted with the repugnant duty of passing final judgment on a former adversary...The proceedings show that the defendant lacked the basic firmness of character and moral fortitude essential to officers charged with the high command of military forces in the field. No nation can safely trust its martial honor to leaders who do not maintain the universal code which distinguishes between those things that are right and those things that are wrong.  The testimony shows a complete failure to comply with this simple but vital standard.  The savageries which resulted have shocked the world.  They have become synonyms of horror and mark the lowest ebb of depravity in modern times.  There are few parallels in infamy and tragedy with the brutalization of troops who in good faith had laid down their arms.

Statement by General Douglas MacArthur to the press upon confirming the death sentence of General Masaharu Homma, 21 March, 1946, Quoted in Lawrence Taylor, A Trial of Generals, Icarus Press (1981) at 172.


   A Note To The Reader: This interactive text contains hyperlinks both to complete copies of important document found at other sites and to abridged versions of the same document on this site. Those abridged versions are noted after the first link as "abridged." They have been provided for the convenience of the reader interested in substantive versions of treaties but absent information regarding such matters as structure of secretariats and provisions for entry into effect. The text is color coded as follows:

Major Headings
Question Headings
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    A Note To The Law Of War Student: Particularly relevant sections of underlying case readings are yellow highlighted. The student is, however, expected to at least be familiar with the entire reading. Where the case title is highlighted, as in Yamashita, the student is expected to read carefully the entire case.

    A Note to German Students: To facilitate your understanding I have included German language texts of treaties where available. The hyperlink will be identified by the words "German language version."

    The fundamental rules governing treatment of persons who may be generally characterized as outside the realm of combat, prisoners, the wounded, civilians and other non-combatants are found in the various Geneva Conventions of 1949 which will be discussed at length below. Those rules, however, are not limited to parties to the treaties. As the International Court of Justice has noted:

[I]n [the] view [of the ICJ] the conduct of the United States may be judged according to the fundamental general principles of humanitarian law; in its view, the Geneva Conventions are in some respects a development, and in other respects no more than the expression, of such principles. It is significant in this respect that, according to the terms of the Conventions, the denunciation of one of them

'shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience' 

Nicaraugua v US at ¶ 218.

{The German occupiers of France] reserved their well known cruelties for the Jews and the active Communists. These two groups were small in France, and the misinforming press has disfigured their martyrdom. Shot every day as hostages, they were identified as terrorists, inspired fools, dangerous to everyone; or British agents, causing only "justified" reprisals.

Jean Helion, They Shall Not Have Me at 240, E.P. Dutton (New York, 1943)(Emphasis added).

5.1 Prisoners Of War


    Vattel's statement was, at least, honored as the "civilized" standard following the enlightenment and before the era of mass industrialized war began with the American Civil War. While the European powers generally accepted "humane" treatment among professional soldiers (keeping in mind the British incarceration of P.W.s in hulks, the French treatment of guerillas during the Peninsular War, and every colonial power's disregard of the humanity of native populations), with the advent of total war against an enemy's civil and industrial base often using conscripted forces, the resulting hostility and violence frequently overwhelmed any good intentions. See, General Order 100  (the "Lieber Code"). It is also worth reviewing Lieber's precursor to General Order 100 found in  Guerilla Parties Considered With Respect to the Laws and Usages of War Van Nostrand (New York, 1862). For a seminal discussion at the exact point of transition during the decade between 1863 and 1873, see William Edward Hall, A Treatise on International Law, Sections 177-179, Clarendon Press, (Oxford, 1873).

Lieber Code Art. 56: A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.

































































       In 1870, Germany adopted the Lieber Code. Louis Fisher, Military Tribunals And Presidential Power, (University Press Of Kansas, 2005) at 79.The portions of Hague Convention  IV (Articles 4-20) relating to Prisoners of War were found inadequate during World War One, See, Levie, Enforcing The Third Geneva Convention, 7 Journal Of Legal Studies (1996/97), and resulted in the 1929 Geneva Convention.  That revision proved to be inadequate to deal with the mass extermination, enslavement, and mistreatment of prisoners by the Axis powers and the U.S.S.R. during World War Two. Ibid

"...[W]ar captivity is neither revenge nor punishment but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war. This principle was developed in accordance with the view held by all armies that it is contrary to military tradition to kill or injure helpless people.

Statement by Admiral Wilhelm Canaris, Director of German Military Intelligence (Abwehr), Sept 15, 1941, protesting regulations for treatment of Soviet Prisoners. Quoted in Judgment, IMT, Trials of the Major War Criminals, vol. XXII, p.475.

 The concern was articulated on both sides. The following was issued by the Brigadier commanding the Jewish Brigade of the British Army in Italy :

1. I want to impress upon all ranks the supreme importance of capturing live German prisoners, and of their being sent back quickly for interrogation through the proper channels.

2. I fully realize there are a large number of men in the Jewish Brigade Gp who have every personal reason for desiring to revenge themselves upon the Germans, and I am afraid that this may, in some case, lead them to decide to kill every German they can, rather than take prisoners. This is a very short-sighted policy.  Our object is to hasten the defeat of the enemy and it has been proved time and time again that far more is gained by taking prisoners from whom information can be extracted under interrogation than by killing the enemy out of hand.

3. I want to stress one further point. However great the crimes which the Germans have committed against international and moral law, I am determined that the Jewish brigade Gp shall act correctly in accordance with recognized conventions.

E.F. Benjamin, Brig. Cmd.

Howard Blum, The Brigade at 107, Perennial (New York, 2002).   

 The 1949 Geneva Convention Relative To Treatment of Prisoners of War sought to rectify those problems.

The principle remedial aspects of the Convention are:

bulletBroad definition of persons entitled to treatment of prisoners of war including members of armed forces, their constituent militias and volunteer corps, and including organized resistance forces in occupied territories, not part of the armed forces,  as long as they: 1) are commanded by a person responsible for subordinates, 2) wear a fixed distinctive sign (such as an armband) recognizable at a distance, 3) carry arms openly, and 4)  conduct their operations in accordance with the laws of war.
bulletRight to treatment as prisoners of war of civilian crew members of troop carrying vessels, war correspondents, and inhabitants of unoccupied territory who spontaneously take up arms to resist an approaching enemy as long as they carry arms openly and respect (but not specifically abide by) the laws and customs of war.
bulletMedical personnel and chaplains while retained by the enemy are not considered as prisoners of war but, at a minimum, are entitled to the rights and benefits of prisoners of war.
bulletAll persons captured are entitled to treatment as prisoners of war until their status is determined otherwise by a competent tribunal.
bulletPrisoners are entitled to humane treatment and may not renounce their rights.
bulletPrisoners are entitled to protection from combat conditions, and rapid evacuation from the combat zone.
bulletPrisoners may not be forced to labor in war related industries.


Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non- international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called 'elementary considerations of humanity' (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22; paragraph 215 above). The Court may therefore find them applicable to the present dispute, and is thus not required to decide what role the United States multilateral treaty reservation might otherwise play in regard to the treaties in question.

Nicaraugua v US at ¶ 218.

    The Provost Marshal General of the United States Army, Maj. Gen. Archer Lerch discussed the validity of the 1929 Geneva Convention in 1945.  Consider his reasoning and compare it with the position of some persons that the 1949 Convention is now obsolete.

Thomas Baily Aldrich once said: "My mind lets go a thousand things, likes dates of wars and deaths of kings."

That man’s (who wrote complaining of kind treatment of enemy prisoners of war) mind had "let go" that historic scene in the United states senate in 1917 when the Senate condemned the German Kaiser, Wilhelm II, for terming the solemn treaties of his government "scraps of paper" and then declared war on Germany. His mind had "let go" another historic day in the same United States Senate in 1932 when the Geneva Convention—a treaty between this country, Germany, Great Britain and forty-three other powers—was ratified. This treaty lays down the rules governing the treatment of prisoners of war and supplies the answers to why the prisoners were [well treated].

* * * * * * *

The War Department has followed strictly the terms of this treaty in all the orders and directives that it has issued governing the treatment of prisoners of war. And I do not believe that any thoughtful person would have the War Department do otherwise.

The Geneva Convention, I might emphasize is law. Until that law is changed by competent authority, the War Department is bound to follow it.

* * * * * * *

The treaty was ratified and proclaimed in accordance with the provisions of the Constitution of the United States, Article 6 of the Constitution provides:

"This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United states shall be the supreme law of the land…"

That treaty, like other laws, can be changed but it cannot be changed by the War Department’s regarding it as a "scrap of paper." Such an attitude on the part of the War Department would mean that our government is no more honest than others it severely condemned. It would mean that this government had sacrificed the place of honor and moral leadership that it has earned in the eyes of the world and had sunk to the level of Japan whose emissaries talked peace while its army went to war.

I do not intend to indicate that I think the Convention should be changed. I do not think that any of us are now emotionally fitted to tackle the job of re-evaluating one of the few international laws that has withstood, with a considerable measure of success, the hatred and lawlessness that war breeds.

Archer Lerch, The Army Reports on POWS, The American Mercury, May, 1945, pp. 536-547.

    What the drafters of the 1949 Convention did not express was that in many instances the protection articulated was also required as remediation for misconduct by western Allied forces, often at the direction at very high levels of command. Consider the following exert from a scholarly study of race hatred in the Pacific War:

... a veteran reminisced before a class of soldiers about how his unit had unexpectedly "flushed" an isolated Japanese soldier on an island that had already been secured, and amused themselves by shooting at him as he dashed frantically about the clearing in search of safety:

    The soldiers found his movements uproariously funny and were prevented by their laughter from making an early end to the unfortunate man. Finally, however they succeeded in killing him, and the incident cheered the whole platoon, giving them something to talk and joke about for days afterward. In relating this story to the class, the veteran emphasized the similarity of the enemy soldier to an animal. None of the American soldiers even considered that he may have had human feelings of fear and the wish to be spared.  What puzzled the veteran in retrospect was why his comrades and he found the incident so humorous. Now, a few years later, it appeared to him grisly and cruel enough; at the time, he had no conscience about it whatever.

    This solitary death is not identical to the execution of the Allied soldier in New Guinea. it lacks the diarist. The Japanese soldier was not technically a prisoner, although he was helpless. There was no ritual. But the human tragedy is much the same, and this emerges in many other recollections by Allied participants as well. A Marine interviewed almost four decades after the event, for example, recalled the fate of a Japanese soldier on Guadalcanal who responded to an appeal to surrender and emerged from his pillbox with his hands over his head: "Now, I'm ashamed to say this, but one of our men shot him down. Not only was this vicious to do but it was asinine. You can bet your life that none of the others are going to come out." The popular American writer William Manchester, in Goodbye Darkness, his 1980 memoir of fighting in the Pacific, recalled a young American soldier on Okinawa, crazed by the death of a revered commander, who "snatched up a submachine gun and unforgivably massacred a line of unarmed Japanese soldiers who had just surrendered." The military historian Dennis Warner, in a book about Japanese suicide units published in 1982, introduced in passing his own first hand experience on Bougainville, where wounded Japanese attempting to surrender were ordered shot by the Australian commander:

    "But sir, they are wounded and want to surrender," a colonel protested to [a major general] at the edge of the cleared perimeter after a massive and unsuccessful Japanese attack.

    "You heard me, Colonel," replied [the Major General], who was only yards away from upstretched Japanese hands. "I want no prisoners. Shoot them all."

    They were shot.

John W. Dower, War Without Mercy, (Pantheon Books, New York, 1986) pp. 62-63.

    Mistreatment was not confined to Asia, or to the Axis:

An Army investigation of mistreatment in French camps also documented Italian prisoners forced to work fourteen hour days as railroad laborers. Among other allegations: "constant threat of attempted sodomy by Arab guards"; "no blankets for three months...forty men without shoes for three months...eleven men in a cell with one window. Arabs and children spat though the window and threw stones." Italian prisoners who managed to escape "prefer anything, even death, to being returned to the French," the investigators added. "At Camp #131, when 58 prisoners were ordered returned to the care of the French, men groveled on the ground, begging that Americans intercede and refuse their return. One asked to be shot. Finally had to be forced into French buses." A British general also observed French jailors "using their prisoners to clear minefields, while we consider it contrary to international law. They don't worry too much about feeding them either."

    Rick Atkinson, An Army At Dawn, Henry Holt, New York (2002) at p.527.

        This U.S. Army Intelligence report of information received from Sergeant Max Cohen, 21st Armored Infantry, 11th Armored Division concerns U.S. conduct during the Battle of the Bulge in December, 1944:

On or about 27 December 1944 while engaging in combat in northern Luxembourg, Source received an order that he was not to take prisoners. In a period of three or four days, Source saw one group of about 20 German prisoners 'machine gunned'...Source said that the Major who was Battalion Commander was present when the group of more than 20 German prisoners was killed.  After the Germans were searched, Source reports, they were lined up and then 'machine gunned.'

    Alfred De Zayas, The Wermacht War Crimes Bureau 1939-1945 U. of Nebraska Press, Lincoln (1989) at p.298.

    Some sense of the German hostility to downed Allied airmen, as inflamed by their government, may be found in the following discussion:

Germans' hostility towards the people who had bombed them out of their homes and killed their families  and friends was hardly surprising.  By the war's end the air offensive had killed at least 600,000 Germans, most of whom were civilians. The Nazi Party inflamed the situation by publicly condoning acts of violence against Allied airmen. On May 27, 1944, in a front-page editorial in the Nazi mouthpiece the Volkischer Beobachter, Goebbels declared, "only with the aid of arms is it possible to secure the lives of enemy pilots shot down during such attacks, for they would otherwise be killed by a sorely tried population...It seems to us hardly possible and tolerable to use German police and soldiers against the German people when it treats murderers of children as they deserve."

    Adrian Gilbert, POW: Allied Prisoners in Europe, 1939-1945, John Murray (London, 2006) at 35. After the war, the Allies prosecuted a number of German civilians who had engaged in the lynching of downed Allied aircrews. See, e.g. Trial of Eric Heyer and Six Others, British Military Court (Essen, December, 1945). I LRTWC 88.

    Article 11, of the 1929 Geneva Convention provided the standard for feeding prisoners during the Second World War:

The food ration of prisoners of war shall be equal in quantity and quality to that of troops at base camps.

Furthermore, prisoners shall receive facilities for preparing, themselves, additional food which they might have.

Sufficiency of potable water shall be furnished them. The use of tobacco shall be permitted. Prisoners may be employed in the kitchens.

All collective disciplinary measures affecting the food are prohibited.

    In reality though, rations varied as greatly as all other aspects of prisoners' lives. The following exerts demonstrate some of that variance.

    The regular food ration at Camp Three was never too good; just rice and thistle weed soup. The ration received was so small that we hated to line up even to draw it. After we had been at this camp two months the regular ration could all be placed in a regulation mess cup.

Virgil V. Vining, Guest Of An Emperor, (Carlton Press, 1968).

    A representative bill of fare for German prisoners at camp Clinton, Mississippi on May 12, 1944, was:

Breakfast: Corn Flakes, Cake or Bread, Marmalade, Coffee, Milk, Sugar

Lunch: Potato Salad, Roast Pork, Carrots, Ice Water

Dinner: Meat Loaf, Scrambled or Boiled Eggs, Coffee, Milk, Bread

    Each Camp also maintained a canteen where prisoners could purchase additional foodstuffs, sweets, crackers, soft drinks and locally grown produce at prevailing market prices.

Arnold Krammer, Nazi Prisoners Of War In America, (Scarborough House, 1996).

    "Never during my captivity," said one American prisoners, "did I get enough to eat." Indeed, the German issue of rations [which per week was five pounds of bread, nine pounds of potatoes, two and one half pounds of cabbage and seven ounces of sausage] fell far short of the daily allowance for German POWs in the United States. the key to survival was the periodic Red Cross parcel provided for most Allied POWs...

Ronald H. Bailey, Prisoners Of War, pp 58-59 (Time-Life, 1981).

5.1.1 Entitlement to Treatment as a Prisoner of War


    The status of a captured individual was often an issue, and it was often viewed as a potential threat by both captor and captive. Numerous American World War Two Air Corps veterans recall that as part of their interrogation by the Germans they were told that they had to provide more information than just name, rank and serial number so "we know you're not a spy." Similarly, John McCain mentions that the North Vietnamese justified their position that Americans were not entitled to POW treatment because there was no declared war. In his memoir the American Commander at Wake Island recalls his trial following attempts to escape from Japanese prison camps:

Twice since I had been brought to China three years before as a prisoner of war I had been guilty of what my captors called "desertion from the Japanese Army." It was a strange way to describe an escape, and I had insisted the first time that the senior officer of the court martial acknowledge my right to treatment as a prisoner of war under the provisions of the Geneva Convention.

"But Japan," he told me, "is not a signatory to the Geneva Convention."

"Then under what law is this trial being conducted?"

It took a while for the interpreter to work out the answer, but it was clear enough in an insane sort of way. Since there is no provision in international law covering the escape of a prisoner of war--at least none recognized by the court--I was being tried under the Japanese Military Code as a deserter.

Winfield Scott Cunningham, Wake Island Command, at 5, Little Brown (Boston, 1961).

    This is not, by any means a new issue. In the context of privateering in was raised in 17th century England.

Soon after the abdication of James II an International question of very great importance arose, namely, what character should be ascribed to Privateers commissioned by the monarch, who had abdicated, to make war upon the adherents of William III...The question, in fact, involved a discussion of the general principle, whether a deposed sovereign, claiming to be sovereign de jure, might lawfully commission privateers against ...the sovereign de facto...or whether such privateers were not to be considered as Pirates, inasmuch as they were sailing ...without any national character. The question, it should be observed, did not arise in its full breadth and importance until James II had been expelled from Ireland as well as England, until, in fact, he was a sovereign claiming to be such de jure, but confessedly without territory.

Robert Phillimore, Commentaries on International Law, at 293 (London, 1854) (Emphasis in original).

    The issue has been in the fore recently, because the United States has faced a variety of enemy combatants, sometimes on the same battlefields. The volatile Middle Eastern mixture of regulars, irregulars, jihadists, foreign fighters and insurgents (sometimes the same person under multiple categories) creates a tremendous dilemma for the captor. Is the individual entitled to assert rights under the 1949 Geneva Convention?

    Initial guidance may be found in Article 5 of that treaty:

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

 Geneva Convention Relative To Treatment of Prisoners of War. For extensive further discussion on the history of United States Army Doctrine relating to treatment of Prisoners of War, see James Gebhardt, The Road To Abu Ghraib: US Army Detainee Doctrine and Experience.

    Much of the underlying rationale for that provision may be found in the history of the World War Two interpretation of the 1929 Convention, especially by the Germans when dealing with citizens of unrecognized or non-signatory states, and irregular combatants. German treatment of prisoners of war varied widely depending on the nationality and race of the POW and the identity of the captor.

  Though Colditz's international population served to protect them to some degree, goon baiting was a dangerous pastime for the Poles. As POWs they enjoyed a degree of protection under the terms of the Geneva Convention, but the Germans never let them forget that the treaty was only binding between recognized states, and they were soldiers of a country that no longer existed.

Henry Chancellor, Colditz, The Definitive History, Harper Collins, ( New York, 2002) at 116.

    Thus, de Zayas, in The Wermacht War Crimes Bureau 1939-1945, University of Nebraska, Lincoln (1989) at 93, quotes Walter Lichtenheldt who was responsible for the Wermacht legal division's POW department as saying the 1929 Convention "had no application with regard to Polish prisoners of war because Poland had ceased to exist." See, Szymon, Datner,  Crimes Against POWs: Responsibility Of The Wehrmacht. Zachodnia Agencia Prasowa (Warsaw, 1964).

The "Free" forces of occupied Europe supplied a further category of soldier fighting alongside the British, and these included contingents of French, Poles, Czechs, Greeks and Yugoslavs as well as individuals from all the European nations under German domination. When captured, their status as British combatants became subject to German legal scrutiny, until OKW pronounced that "the uniform is the determining outward factor in establishing the fact of the prisoner's belonging to the respective armed forces." Czech POWs were, however, considered a possible exception. Czechoslovakia had never been a belligerent power, as the Czech half of the country had either  been incorporated into the Reich or become a German protectorate before the outbreak of war. On this basis it was proposed that captured "Free" Czechs should come under German civil jurisdiction and be tried as traitors. Although this assertion was never tested in court, Czech POWs remained in an uncomfortable limbo for much of the war.

Adrian Gilbert, POW: Allied Prisoners in Europe, 1939-1945, John Murray (London, 2006) at 203.

Germany also argued that the 1929 Geneva and Hague conventions were inapplicable to the U.S.S.R. because it was not a signatory:

The war against Russia will be such that it cannot be conducted in a knightly fashion. This struggle is one of ideologies and racial differences and will have to be conducted with unprecedented, unmerciful, and unrelenting harshness. All officers will have to rid themselves of obsolete ideologies.... German soldiers guilty of breaking international law will be excused. Russia has not participated in the Hague Convention and therefore has no rights under it.

William L. Shirer, The Rise and Fall of the Third Reich,  Crest, ( New York, 1962) at 1088-1089. See, Halder Affidavit at Nuremburg Trial.

    The Germans also varied their treatment of subject populations on those bases:

  German forces tended to modulate the severity of their violence in accordance with the ethnicity of the subject population. Racial hierarchy was enshrined in antipartisan doctrine and reprisals in eastern Europe and the Balkans became more frequent and more severe than in the West. In Belarus alone no fewer than 628 villages were destroyed by German troops, and perhaps as many as 350,000 people lost their lives as a direct consequence of antipartisan operations. The influence of Nazi ideology is also apparent in that, in all theaters occupied by the Reich, reprisal violence was frequently directed toward Jews in preference to other victims. The most striking example of this phenomenon was in Serbia, where Jews held in concentration camps around Belgrade were executed en masse in retaliation for partisan attacks on German units operating in the country side.

Mark Grimsley & Clifford J. Rogers Ed.(s), Civilians in the Path of War at pp 193-194, Truman Anderson, Yeline, University of Nebraska Press (Lincoln, 2002).

"We are obliged to hold that such guerrillas were francs tireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans..."

United States v List, (the Hostages Case), Judgment.

    German commanders did not, despite stereotypes, necessarily obey the illegal orders promulgated by their government:

Fundamental human rights are those to which humans are absolutely and always entitled. An example pertains to killing captured enemy soldiers. Not only is killing captured enemy soldiers morally wrong—regardless of their entitlement to POW status—it violates the law of war. German Field Marshal Erwin Rommel received Adolph Hitler's "commando order" to kill enemy soldiers encountered behind German lines but admirably chose to burn the order rather than comply with it, an act of high moral character while serving an immoral government. Though bound by a different set of laws, he responded properly to a moral imperative. Killing POWs can be considered an absolute wrong for soldiers, as well as a written truth and binding law.

Kenneth Tarzca, 77 The Army Values Challenge, Combined Arms Center Military Review, Jan-Feb., 2001.

 In its conduct of the courtmartials [sic], the Wehrmacht behaved with scrupulous regard for the Geneva Convention as well: the prisoner was allowed to prepare a careful defense and engage a lawyer from among his fellow POWs. The chief British defense counsel was Black Campbell, who had just qualified as a barrister at the outbreak of war and handled most of the cases involving British offenders. He would go over their cases in meticulous detail...Campbell was not always allowed to accompany his 'clients' before the district military court in Leipzig, but he was able to instruct a German civilian lawyer, Dr Naumann who practiced in Colditz town...The POWs trusted Naumann and were allowed by the Geneva Convention to pay him proper fees. All the prisoners who encountered the military court were impressed by the fairness of the senior German officers who sat on it.

 The prisoners ...took comfort from the knowledge that the Wehrmacht would treat them with scrupulous impartiality. But they could not close their eyes to the chilling evidence of how POWs not protected by the Geneva Convention were treated. ... The Germans were prepared to recognize the Russian POWs as covered by the Geneva Convention, provided the Russians behaved in the same way towards their German prisoners.  But Stalin never granted this reciprocity--indeed he broke off negotiations with the international committee of the Red Cross, granting the Nazis license to treat the Russians as the inferior beings they believed them to be.

Chancellor,  at 126-127.

    The Bullet Decree of 1944 demonstrates the collusion of the High Command of the German Armed Forces with the secret security apparatus of the Nazi Party. The Decree, which covered measures to be taken against captured escaped prisoners of war who were officers or not working non-commissioned officers, except British and American prisoners of war, provided, in part, that such prisoners were "to be turned over to the Chief of the Security Police and of the Security Service," and that "[t]he captured prisoners are to be reported to the Army Information Bureau as "escaped and not captured." The prisoners were then to be shipped to Mauthausen Concentration Camp.

    Not only, of course, was that policy a direct violation of the 1929 Geneva Convention, its most sinister implications were in fact carried out. Escaped prisoners were murdered wholesale, and many were sent to concentration camps including a considerable number of American and British troops who were either of Jewish origin or members of elite units such as U.S. Army Rangers or British Commandos. See, Mitchell G. Bard, Forgotten Victims, Westview Press (1994).

...as the tide of war turned against Japan, it became clear the Japanese Imperial Army was prepared to murder POWs. On August 1, 1944, twelve months before hostilities ended, the Chief of Staff of the Japanese Army's 11th unit at Kirrum, in Taiwan, received the following orders that were addressed to the Commanding General and Commanding General of Military Police:

Extreme measures for POWs:

"At such time as the situation becomes urgent ... the POWs will be confined under heavy guard and preparation for final disposition will be made.

a) Whether they are destroyed individually or in groups or however it is done, with mass bombing, poisonous smoke, poisons, drowning, decapitation, or what, dispose of them as the situation dictates. ...In any case it is the aim not to allow the escape of a single one, to annihilate them all, and not leave any traces" .

Sir Eldon Griffiths, Japanese War Crimes, The Path To Justice, 21 Whittier Law Review 557 at FN 19, Spring, 2000, citing, Clifford Kinvig, River Kwai Railway: The Story Of The Burma-Siam Railroad, 130-137 (1998).

...Swiss Minister, Tokyo, telegraphs January 30 as follows "Japanese Government has informed me: 'First. Japan is strictly observing Geneva Red Cross Convention as a signatory state. Second. Although not bound by the Convention relative prisoners of war Japan will apply mutatis mutandis provisions of that Convention to American prisoners of war in its power.

Telegram from American Legation, Bern, Switzerland to U.S. Department of State, Exhibit A to Trial Record of United States of America v. Shigeru Sawada et al, U.S. Archives, Modern Military Records.

We were told that though there [was] an International Law [governing treatment of POWs]...there might be some cases that must be handled in accordance with the circumstances and not exactly according to the International Law.

Lt. Col. Shoichi Yanagita, rail construction group commandant, quoted in Sibylla Jane Flower, Captors and Captives on the Burma-Thailand Railway, Bob Moore and Kent Fedorowich, Ed.s, Prisoners of War and Their Captors in World War II, Berg, Oxford (1996) at p. 235.

   Note that the relevant treaties and rules may require one claiming prisoner of war status to meet certain requirements such as wearing a uniform or identifying badge or mark and bearing arms openly (See, Evan Wallach, Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander?, The Army Lawyer, Nov. 2003, (which discusses the status of "enemy combatants" captured in Afghanistan). The language of Article 4 of the Third Geneva Convention, and the working papers concerning its drafting, strongly suggest that those requirements do not apply to members of the regular armed forces of a state or of auxilliary units forming part of those regular armed forces (others, however, disagree with that position, see, e.g. Prof.s Ruth Wedgwood and Michael Dorf). Those provisions are particularly relevant in the case of those charged as spies, saboteurs, or terrorists. See, Ali v Public Prosecutor. Consider the problems of a State which intends to comply with applicable laws governing prisoners of war, but which is unsure which enemy combatants meet requisite standards. A discussion of those problems is found in a study on POW Policy conducted by the United States Army at the end of the Vietnam War.

    Compare that position with the German admonishment to the population of occupied France in 1944:

Whoever on French territory outside the zone of legal combat is captured and identified  as having participated in Sabotage, terrorism or revolt is and remains a bandit or franc-tireur and shall consequently be shot, whatever his nationality or uniform

Will Irwin, The Jedburghs: The Secret History Of The Allied Special Forces, France 1944 at 29. Public Affairs (New York, 2005).

    Consider these two points of view of the same set of facts involving resistance to the German invasion of Crete in 1941.

...the Greek defenders consisted mainly of non-Cretan refugees from the debacle on the mainland, and some locals too old or young for regular military service, about 9000 altogether, hastily formed into eight regiments; often lacking uniforms, many were to be shot by the Germans as unlawful irregulars.

John, Keegan, Intelligence In War, Vantage, New York (2002) at 166.

From these investigations it appears that the mutilation of corpses and the maltreatment of soldiers were committed almost exclusively by Cretan civilians. In some cases survivors observed that civilians fell upon dead soldiers, robbed them, and cut them up with knives...It is difficult to determine how it was that the civilian population of Crete participated in the fighting and committed in the atrocities...

Alfred M. De Zayas, The Wermacht War Crimes Bureau 1939-1945, University of Nebraska, Lincoln (1989) at 157, quoting a report by a German Army investigating judge. De Zayas the notes that:

The [German Foreign Office Report] is silent...on the draconian measures of reprisal taken by the Germans on Crete. As early as 31 May 1941 the German commander-in-chief ordered reprisals--without, of course, any prior judicial determination of guilt of the persons executed.  Goring, upon receiving copies of depositions concerning the killing and mutilation of parachutists, ordered that these crimes should be punished; as a result, the villages of Skines, Prasses, and Kandamos were destroyed and the male population executed.

Id at 161.

    In U.S. v. Noriega, the Court noted that the ultimate question before it "appears to be whether or not the Geneva Convention prohibits incarceration in a federal penitentiary for a prisoner of war convicted of common crimes against the United States."

    Following the attacks of the World Trade Center of 11 September, 2001, the definition of terrorism and terrorists has become increasingly important within the ambit of the law of war. The connection may be seen in the terrorism outline included here. See also, Philip B. Heymann, Terrorism, Freedom and Security, Winning Without War, MIT Press (Cambridge, 2003) (applying principled decision making analytical methods to terrorism issues; and Caleb Carr, The Lessons of Terror, Random House (New York, 2003) (a general history on the use of military force against illegitimate civilian targets). The student examining it should ask whether the principles of the laws of war may be of use in determining, in all cases, what acts and actors should, or should not be, protected and regulated by the laws of war. In a Memorandum to The DOD General Counsel, John Yoo and Robert Delahunty from the Office of Special Counsel in the Department Of Justice opined regarding application of various treaties to al Qaeda and the Taliban.

    There have been some claims that the Geneva Conventions, per se, are outmoded. The precedents for such a position are, to say the least, mixed:

On 19 February 1945 Hitler suggested to his top military aides that Germany should disown the Geneva Convention with regard to British and American prisoners. At OKW, Admiral Karl Dönitz and General Alfred Jodl were asked to submit their opinions on the matter. The Allies, however, now held twice as many prisoners as did the Germans, and solely for fear of Allied countermeasures both men recommended no public repudiation of the Convention, although Jodl cynically suggested to Hitler that a formal agreement to uphold its terms need not necessarily be carried out in practice.

Adrian Gilbert, POW: Allied Prisoners in Europe, 1939-1945, John Murray, (London, 2006) at 297, citing Szymon Datner, Crimes Against POWs; Responsibility of the Wehrmacht, Zachodnia Agencja Prasowa,Warsaw, 1964). How such government policy translates into battlefield application is also open to critical examination:

After capture, we were assembled by the side of the road...While waiting the Germans prepared their AA weapons for transport. A German officer told one of the Americans to help. The American said it was against the Geneva Convention to help. The German said "Ja, Geneva Convention," and shot him.

Flint Whitlock, Given Up For Dead, American GI's in the Nazi Concentration Camp at Berga, Westview Press, Cambridge (2005) at p. 67, from an unpublished memoir by Peter House.

    The United States Supreme Court has addressed these and other issues in four recent cases. See, Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) and Boumediene v. Bush, 128 S. Ct. 2229 (2008).


5.1.2 Interrogation of Prisoners Of War



    One important aspect of the Geneva Conventions is the potential for information about mistreatment to reach the outside world. In his autobiography, Sen. John McCain, describes a sudden visit from one his captors while he was a prisoner of war in North Vietnam:

[An interrogator] burst into my cell once, highly agitated, and complained, "[e]ven the Russians criticize us. You tell lies about us. You say we pull out your fingernails and make you live in rooms with no ventilation." That [he] made this complaint while I languished in the suffocating environment of my unventilated cell made the experience only slightly less surreal than listening to the loudspeaker in my cell inform me that the American government was lying about Vietnam's mistreatment of prisoners.

John McCain, Faith of My Fathers at 292, Random House (New York, 1990).

    Many of the interrogation tactics currently in use are not new. Consider those mentioned in this discussion of Dalug Luft, the first German camp for Air Force POWs which opened in December, 1939 during the regime of the 1929 Geneva POW Convention.

From July, 1940, Dalug Luft became the interrogation centre to which all British, and later many American Air Force prisoners were sent immediately after being shot down. Like all interrogation centers  it was the exception to most prison camp rules.  On arrival the prisoners were put into solitary confinement where they remained for periods varying from twenty-four hours to a month.  If for any reason the Germans suspected that they had information which might be of value, they were subjected to mild forms of third degree. Sometimes they were starved for twenty-four hours, or forbidden to read or write. Occasionally they were forbidden to wash, a deprivation which most prisoners found easy to bear.  The most severe form of pressure was overheating of the prison cell. This produced thirst and after twenty-four hours was distressing enough to make most men angry; it was rare that they became pliant.  

Aidan Crawley, Escape From Germany, at 100, Dorset Press (New York, 1985).

    A further discussion of Dalug Luft techniques is found in Adrian Gilbert's POW: Allied Prisoners in Europe, 1939-1945:

As part of the disorientation process, the newly arrived prisoner was held in one of 200 small, sparsely furnished calls, and kept there in solitary confinement. There were virtually no washing facilities, and food was poor and limited, although lice and fleas were there in abundance.  Within the cells--and elsewhere in the camp--hidden microphones relayed inadvertent comments made by the prisoners, which were written down in shorthand for subsequent use by the interrogators. There was no natural light in the cells, and strong artificial lights were kept on for long periods to make sleep difficult. A further discomfort were the radiators, which could be turned on and off only by the guards and sometimes generated fierce levels of heat. According to one witness, on a warm day the heated cell temperature could reach 129° F.

Adrian Gilbert, POW: Allied Prisoners in Europe, 1939-1945, John Murray (London, 2006) at 57.

    Interrogation of prisoners of war is regulated by Geneva Convention III. Article 13 provides, in part, that "Prisoners of war must at all times be humanely treated," and that  they  "must at all times be protected, particularly against acts of violence or intimidation..." Article 14 requires that "Prisoners of war are entitled in all circumstances to respect for their persons and their honor." Article 16, reads, in full "Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria."

    Article 22, sets physical conditions of confinement "Prisoners of war interned in unhealthy areas, or where the climate is injurious for them, shall be removed as soon as possible to a more favourable climate. The Detaining Power shall assemble prisoners of war in camps or camp compounds according to their nationality, language and customs, provided that such prisoners shall not be separated from prisoners of war belonging to the armed forces with which they were serving at the time of their capture, except with their consent." Article 25 says that "Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health. The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards both total surface and minimum cubic space, and the general installations, bedding and blankets. The premises provided for the use of prisoners of war individually or collectively, shall be entirely protected from dampness and adequately heated and lighted, in particular between dusk and lights out." Article 34 states that "Prisoners of war shall enjoy complete latitude in the exercise of their religious duties, including attendance at the service of their faith, on condition that they comply with the disciplinary routine prescribed by the military authorities. Adequate premises shall be provided where religious services may be held."

    Finally, and most importantly, Article 17 requires that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind." Emphasis added.

    Following repatriation after the Korean War, five American physicians who had been prisoners of the Communists wrote an explanation of what was then termed "brainwashing" techniques used by the North Koreans and Communist Chinese:

It is important to realize that every aspect of the daily life of the prisoner, from the moment of capture to the time of release, was part of the general plan of indoctrination.  At the time of capture, each prisoner was given the general theme of indoctrination: "We are your friends. Your conditions of living are bad now, but we will work together to improve them. We will correct the errors in your thinking. Once you have learned the truth, we will send you back to your families."

The first necessary step was to break down the normal resistance to an alien ideology. This was accomplished by keeping the prisoners cold, hungry, and in a state of disorganized confusion until each person realized that resistance meant starvation and death...After a few months of this treatment the resistance of the survivors had softened.

The second phase of indoctrination consisted of an intensive formal study program. For a period of approximately one year, most of the waking hours of the prisoners were spent in some form of supervised study. Food was gradually improved and more clothing was issued. It was made painfully clear to each prisoner that living conditions would be improved only so long as there was no resistance to the study program. The formal study program consisted of an endless repetition of two main themes; first, that the United States government is imperialistic, run by and for the wealthy few, and second that Communism reflects the aims and desires of all the people and is the only true democracy.

Medical Experiences in Communist POW Camps in Korea, The Martin Journal, Martin Army Hospital, Ft. Benning, Ga., quoted in Lewis H. Carlson, Remembered Prisoners of a Forgotten War at p. 178, St. Martin's Press, (New York, 2002).

    Those experiences make an interesting comparison to coercive techniques discussed in the Kubark Counterintelligence Interrogation Manual, a somewhat dated document, but still of some apparent applicability. See, Mark Bowden, The Dark Art Of InterrogationAtlantic Monthly , October, 2003. Those techniques include arrest, detention, deprivation of sensory stimuli, threats, pain, hypnosis and use of drugs. The manual also lists noncoercive techniques designed to induce regression:

bulletPersistent manipulation of time
bulletRetarding and advancing clocks
bulletServing meals at odd times
bulletDisrupting sleep schedules
bulletDisorientation regarding day and night
bulletUnpatterned questioning sessions
bulletNonsensical questioning
bulletIgnoring halfhearted attempts to cooperate
bulletRewarding noncooperation

    Many of these techniques are clearly still in use, although not necessarily directly by an armed force. The Washington Post has reported that in addition to direct coercive tactics, the United States also transfers prisoners to other nations which use traditional violent torture techniques. They may be compared with those techniques discussed in FM 34-52, Intelligence Interrogation.

    In Ireland v. United Kingdom, the European Court of Human Rights (1978) held that because the violation of a person's physical and mental integrity by torture, inhuman or degrading treatment or punishment is prohibited under Article 3 of the European Convention on Human Rights, the Court condemned the ill-treatment of suspected terrorists during interrogation, with the result that the United Kingdom Government had to introduce new rules concerning the interrogation of detainees. Techniques found to amount to inhuman treatment included wall-standing: forcing detainees to remain for periods of some hours in a "stress position," hooding: putting a bag over the detainee's head and keeping it there for periods of time, and subjection to noise, deprivation of sleep, deprivation of food and drink. In 1987, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment entered into force. That Treaty was ratified by the United States in October, 1994 (but with imputed exceptions).

    More recently, in Prosecutor v. Anto Furundija, Judgement, Case No.: IT-95-17/1-T 10 (December 1998) the International Criminal Tribunal for Former Yugoslavia discussed in detail the development of customary international law prohibiting torture:

In any case, the proposition is warranted that a general prohibition against torture has evolved in customary international law. This prohibition has gradually crystallised from the Lieber Code157 and The Hague Conventions, in particular articles 4 and 46 of the Regulations annexed to Convention IV of 1907,158 read in conjunction with the ‘Martens clause’ laid down in the Preamble to the same Convention.159 Torture was not specifically mentioned in the London Agreement of 8 August 1945 establishing the International Military Tribunal at Nuremberg, hereafter "London Agreement", but it was one of the acts expressly classified as a crime against humanity under article II(1)(c) of Allied Control Council Law No. 10,160 hereafter "Control Council Law No.10". As stated above, the Geneva Conventions of 1949 and the Protocols of 1977 prohibit torture...

138. That these treaty provisions have ripened into customary rules is evinced by various factors. First, these treaties and in particular the Geneva Conventions have been ratified by practically all States of the world. Admittedly those treaty provisions remain as such and any contracting party is formally entitled to relieve itself of its obligations by denouncing the treaty (an occurrence that seems extremely unlikely in reality); nevertheless the practically universal participation in these treaties shows that all States accept among other things the prohibition of torture. In other words, this participation is highly indicative of the attitude of States to the prohibition of torture. Secondly, no State has ever claimed that it was authorised to practice torture in time of armed conflict, nor has any State shown or manifested opposition to the implementation of treaty provisions against torture. When a State has been taken to task because its officials allegedly resorted to torture, it has normally responded that the allegation was unfounded, thus expressly or implicitly upholding the prohibition of this odious practice. Thirdly, the International Court of Justice has authoritatively, albeit not with express reference to torture, confirmed this custom-creating process: in the Nicaragua case it held that common article 3 of the 1949 Geneva Conventions, which inter alia prohibits torture against persons taking no active part in hostilities, is now well-established as belonging to the corpus of customary international law and is applicable both to international and internal armed conflicts.161

139. It therefore seems incontrovertible that torture in time of armed conflict is prohibited by a general rule of international law. In armed conflicts this rule may be applied both as part of international customary law and – if the requisite conditions are met - qua treaty law, the content of the prohibition being the same.


157 "Francis Lieber, Instructions for the Government of Armies of the United States (1863)", reprinted in Schindler and Toman (eds.), The Laws of Armed Conflicts (1988), p. 10.158 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, 18 Oct. 1907,hereafter "Hague Convention IV", and the Regulations attached to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land.

159 Preamble to Hague Convention IV. The so-called 'Martens clause' reads: "Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity, and the dictates of the public conscience".Case No.: IT-95-17/1-T 10 December 1998

160 Official Gazette of the Control Council for Germany, No. 3, p. 22, Military Government Gazette, Germany, British Zone of Control, No. 5, p. 46, Journal Officiel du Commandement en Chef Français en Allemagne, No. 12 of 11 Jan. 1946.

    until early 2009 there was uncertainty about interrogation techniques used on persons held by the United States at Guantanamo Bay, as well as about their status under the Geneva Conventions. Some persons released from Guantanamo claimed physical abuse, and those claims were denied by American authorities. See, Guantanamo interrogations.  Bowden says sensory deprivation, sleep deprivation and other torture techniques are used in some instances. See, Washington Post list of interrogation techniques (2004).

    In May, 2004, the New Yorker Magazine revealed that American military authorities had investigated and confirmed physical, sexual and other mental abuse against prisoners held in a United States Army Military run prison. The outcome of that investigation is not yet determined, but the command responsibility doctrine may go to a very high level indeed. The New Yorker article was based on an  AR 15-6 Report produced by MG Antonio M. Taguba. While that report identifies certain command as well as lower level misconduct, it fails to address the question of whether command directives issued by the President of the United States and its Secretary of Defense amounted to order to to engage in violations of the Third Geneva Convention, and whether that created an atmosphere which improperly encouraged the reported misconduct. For a discussion and analysis of those directives, and their supporting memoranda, see the Detainee Legal Status  Analysis, and an article on Abu Ghraib, Evan Wallach, The Logical Nexus Between the Decision to Deny Application of the Third Geneva Convention to the Taliban and Al Qaeda and the Mistreatment of Prisoners in Abu Ghraib, 36 Case Western Journal of International law 541 (2004) . President Obama announced his decision to close the prison at Guantanamo on January 20, 2009, but to date that decision has not been completely implemented. Again, any potential liability is uncertain and may still depend on as yet unrevealed issues of fact.

    What is certain, is that if any person is entitled to treatment as a POW under the Third Geneva Convention, such treatment would be a grave breach, and a felony under American law. See, 18 U.S.Code Section 2441.

    Consider, in that light, the following quote from Newsweek Magazine:

Donald Rumsfeld likes to be in total control. He wants to know all the details, including the precise interrogation techniques used on enemy prisoners. Since 9/11 he has insisted on personally signing off on the harsher methods used to squeeze suspected terrorists held at the U.S. prison at Guantanamo Bay, Cuba. The conservative hard-liners at the Department of Justice have given the secretary of Defense a lot of leeway. It does not violate the spirit of the Geneva Conventions, the lawyers have told Rumsfeld, to put prisoners in ever-more-painful "stress positions" or keep them standing for hours on end, to deprive them of sleep or strip them naked. According to one of Rumsfeld's aides, the secretary has drawn the line at interrogating prisoners for more than 24 hours at a time or depriving them of light.

Evan Thomas, Newsweek, May 17, 2004.

    Compare, that treatment of prisoners with allegations of Israeli abuse.


5.1.3 Torture


Defining Torture

bulletFor the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, Article 1.
bulletThe prohibition against torture under international law applies to many measures - e.g. beating on the soles of the feet; electric shock applied to genitals and nipples; rape; near drowning through submersion in water; near suffocation by plastic bags tied around the head; burning; whipping; needles inserted under fingernails; mutilation; hanging by feet or hands for prolonged periods. Human Rights Watch, Human Rights News, The Legal Prohibition Against Torture, March 11, 2003
bulletThe intentional infliction of "mental" pain and suffering is appropriately included in the definition of "torture" to reflect the increasing and deplorable use by States of various psychological forms of torture and ill-treatment such as mock executions, sensory deprivations, use of drugs, and confinement to mental hospitals. As all legal systems recognize, however, assessment of mental pain and suffering can be a very subjective undertaking. There was some concern within the U.S. criminal justice community that in this respect the Convention's definition regrettably fell short of the constitutionally required precision for defining criminal offenses. To provide the requisite clarity for purposes of domestic law, the United States therefore conditioned its ratification upon an understanding that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality. Department of State, Initial Report of the United States of America to the U.N. Committee Against Torture, Oct. 15, 1999.
bullet(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from--

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;...

18 United States Code § 2340



    For an extensive further discussion of the definition of torture see the Journal Torture, Vol. 5, No. 4, pp. 72-76 (1995) and Wikipedia.

    Some attorneys in the United States Department of Defense, the Department of Justice and the White House have argued for limits on both the meaning of torture, and the persons who are protected by restrictions on its use. A detailed discussion of their contents may be useful for analysis. The use of "extraordinary interrogation techniques" against detainees considered by the United States to be outside the Third Geneva Convention has become public in mid-2004. For a chronology of those event see interrogation techniques.

    The definition of what constitutes torture sometimes seems to vary with who is doing what to whom. Consider, for example the practice of "water-boarding."

The current practice of waterboarding was known previously as "the water cure." It involves tying the victim to a board with the head lower than the feet so that he or she is unable to move. A piece of cloth is held tightly over the face, and water is poured onto the cloth. Breathing is extremely difficult and the victim will be in imminent fear of death by asphyxiation. However, it is relatively difficult to aspirate a large amount of water since the lungs are higher than the mouth, and the victim is unlikely to actually expire if this is done by skilled torturers

Wikipedia: Water Cure.

    Water boarding has allegedly been authorized for use by various entities of the United States during questioning of persons captured during the "Global War On Terror."

As for "torture," it is simply perverse to conflate the amputations and electrocutions Saddam once inflicted at Abu Ghraib with the lesser abuses committed by rogue American soldiers there, much less with any authorized U.S. interrogation techniques. No one has yet come up with any evidence that anyone in the U.S. military or government has officially sanctioned anything close to "torture." The "stress positions" that have been allowed (such as wearing a hood, exposure to heat and cold, and the rarely authorized "waterboarding," which induces a feeling of suffocation) are all psychological techniques designed to break a detainee.

Wall Street Journal, Editorial, 12 November, 2005.

    Consider then, this testimony about his treatment in Tokyo,by CPT Chase Nielsen a member of the aircrew of one of the bombers on the Doolittle Raid against Japan in April, 1942. Captain Nielsen was captured by the Japanese in China and returned to Japan for interrogation.

Q: What other physical treatment was administered to you at that time?

A: Well, I was given what they call the water cure.

Q: Explain to the Commission what that was.

A: Well, I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water was poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let me up until I'd get my breath, then they'd start over again.

Q: When you regained consciousness would they keep asking you questions?

A: Yes sir they did.

Q: How long did this treatment continue?

A: About twenty minutes.

Q: What was your sensation when they were pouring water on the towel, what did you physically feel?

A: Well, I felt more or less like I was drowning, just gasping between life and death.

United States v. Sawada et a., Trial Record, Volume I, p.55.18 March, 1946.

    In his review of the Sawada trial for the Theater Commander, the Army Staff Judge Advocate discusses the treatment of Captain Nielsen and the other captured Dooliittle flyers:

The evidence of the torture of the fliers during their investigation in Tokyo is very pertinent when taken into consideration with the fact that purported confessions were made by the fliers at the time of that investigation admitting attacks on non-military targets. If there was such evidence and it was used at their trial, clearly such use was improper. The untrustworthiness of any admissions or confessions made under torture would clearly vitiate a conviction based thereon.

United States v. Sawada et a., Review of the Record of Trial,  p.23. August, 1946.

    For a discussion of the history of trials of water based interrogation techniques see Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45 Columbia J. Trans. L. 468 (2007).


Questions To Consider About Prisoners Of War


5.1.1 When does a person become a P.W.?  In the heat of combat when is it reasonable to expect a soldier to recognize an opponent is "hors de combat?" Consider the concept of treachery. If an enemy soldier feigns surrender and then attacks the supposed captor, or if the enemy misuses a flag of truce, it is a war crime. Does such conduct affect the time at which a capturing soldier can reasonably consider the enemy to be truly surrendering? 
5.1.2 Is a civilian ever a P.W.? When journalists were captured in the American Civil War they were treated as captured soldiers and confined in prisoner of war camps. Under the Geneva Prisoner Of War Convention certain captured civilians are entitled to special treatment. How does the capturing party distinguish among those persons entitled to treatment as civilian personnel and those to be treated as P.W.s ? What is different about doctors and chaplains? Why are they accorded special treatment? Why not lawyers? Make a principled argument that special status should be accorded to a captured Judge Advocate officer.
5.1.3 Persons arguably entitled to treatment as Prisoners of War are currently being held in the Congo, Ethiopia, Eritrea, Iran, Iraq, Israel, Russia, Shri Lanka and former Yugoslavia. Many other countries, including the United States, Great Britain, China and France detain as "terrorists" persons who claim P.W. status. In what principled fashion may a distinction be drawn between those entitled to Geneva safeguards and those who are not? Examine the 1977 Protocol and the Geneva P.W. Convention as you formulate your answer.  What about military personnel engaged in conduct which violates national criminal laws such as drug smugglers? Consider the case of Manuel Noriega who is a prisoner in a United States federal penitentiary. Was he entitled to P.W. status following his capture in the United States invasion of Panama?
5.1.4. Does the P.W. Convention recognize a duty to resist? Does it recognize a duty to escape? What rights to discipline does the captor have when force is used in escaping?
5.1.5 The P.W. Convention provides certain rights.  They include limitations on types and manner of employment of prisoners; standards for living conditions and food, protection of prisoners' cultural & religious sensibilities and certain pay and benefits for prisoner labor. Familiarize yourself with the treatment by the Germans and Russians of each others' captured personnel, and by the Japanese of all prisoners during World War II. Is there any justification? The Japanese claimed their actions were justified by military necessity, that they had not expected such large numbers of prisoners, and that, in any case, the treatment accorded Allied prisoners was the same as that accorded to serving Japanese military personnel. The Germans treated Western Allied prisoners substantially in accord with the 1929 Geneva Convention and argued their mistreatment of Russian prisoners was justified by the USSR's failure to sign the Convention. Were the positions asserted by the Japanese and Germans valid defenses under the current state of the law?
5.1.6 Consider the status of  P.W.s who switch sides? Many of the prisoners captured by the Germans in the early part of the Second World War either volunteered for or were impressed into the German armed forces. The case of General Vlasov is a good example. At the cessation of hostilities many of Vlasov's troops surrendered to the British Army and were turned over to Russian authorities against their will. Was that treatment acceptable under current law? The Italian prisoners in the United States presented a unique problem when Italy switched sides and became a co-belligerent in 1943. Were those persons held by the Allies still prisoners of war at that point? For further information on this issue read Louis E. Keefer, Italian Prisoners Of War in America, Praeger, New York (1992).
5.1.7 Read the "Bullet Decree." Identify the violations of the laws of war in that decree. Does liability increase because the German authorities demonstrated their knowledge and intention to violate existing law by attempting to conceal their conduct?
5.1.8 According to Major Patrick Reid, "In Britain POWs were not normally employed on military work of any kind. After the cessation of hostilities in World War II, German POWs in Britain and France were put to bomb disposal and mine lifting on the grounds that each POW bore an individual partial responsibility for the wickedness of his government, so that it was morally justifiable to exact that form of retribution." Pat Reid, Prisoner Of War, Hamlyn, London, 1984). Review the 1929 Geneva Convention. Was the British treatment of German POWs legal under then existing law?
5.1.9     In U.S. v. Noriega, the court noted that the ultimate question before it "appears to be whether or not the Geneva Convention prohibits incarceration in a federal penitentiary for a prisoner of war convicted of common crimes against the United States." Review the rights granted under the 1949 Convention and then compare them with the court's analysis. Was Noreiga properly found to be a POW? If so, were his rights properly protected? 
5.1.10     Consider the following quote. "Military policy toward Native Americans...routinely followed the insurrectionatry principle, which in effect not only denied legitimacy to Native American combatants, but placed them in the same legal category as bandits and highwaymen. it did so despite the fact that Native Americans were not citizens of the United States but belonged instead to separate nonstate societies that until 1871 were officially regarded as 'domestic dependent nations.'  American units on the Western frontier did not automatically kill every Indian they encountered, but the widespread sense that Indians were illegitimate combatants-- insurgents, simple bandits, or (in General Philip H. Sheridan's expressive phrase) 'fiends'--made killing much easier to contemplate, condone or excuse." Mark Grimsley & Clifford J. Rogers, Civilians in the Path of War, University of Nebraska Press (Lincoln, 2002) at 140.

Is there an analogy between the illegal combatant analysis used to describe certain detainees in the current fight against terrorism, and the illegitimate combatants of the Indian Wars. What are the similarities and differences in treatment and analysis?


5.2 Civilians


    Following the ascendance of European nation states in the 16th century there was a general movement towards professionalizing armies, and to some extent concomitant protection of civilians in wartime. See, The Laws of War, supra, The American Civil War reversed that trend as the United States attempted to destroy not only the Southern armies and navy, but also their base of industrial and civilian support. Despite the provisions of Leiber's General Order 100 that "[t]he United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women: and the sacredness of domestic relations," general destruction and pillaging of cities and the countryside was common by the second half of 1864.

    ...as the invaders struck deeper, the places most severely pillaged were those abandoned by their owners. Despite orders to the troops from some commanders to respect private property, a house standing empty, an open pantry or liquor closet, or a lone horse presented irresistible temptation to soldiers on the move. Later in the War, when General William Tecumseh Sherman and others told their far-flung invaders to live off the land, the presence of an owner did not prevent Federal soldiers from taking whatever they needed. But it usually kept them from stealing or destroying everything.

Steven A. Channing, Confederate Ordeal, Time-Life Books, (New York, 1984).

    Protection of civilians evolved in two streams; one protected real and personal property, the other their personal rights and privileges. The former is covered in Chapter VI of this book under general protection of various types of property. The protection of enemy civilian persons, however, developed under a different line of authority.

    As is noted in the U.S. Army's The Law Of Land Warfare:

    The enemy population is divided in war into two general classes:

    a. Persons entitled to treatment as prisoners of war upon capture...

    b. The civilian population...who benefit to varying degrees from the provisions of [the Geneva Civilians Convention].

F.M. 27-10 at §60 p.25.

    The first important modern effort to protect civilians is reflected in Hague Convention IV of 1907 and its accompanying Regulations. Articles 44,  45, and 46 forbid a belligerent "...to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defense, "...to compel the inhabitants of occupied territory to swear allegiance to the hostile Power...," and required that "Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected." The Hague Convention, however, was limited in scope and application; it offered only limited protection to civilians and was applicable only in international armed conflicts. In any case, it proved insufficient, both to deal with the German occupation of Belgium and parts of France in World War One, and the much more widespread violation of civilian rights by the Axis powers (and to some extent the Allies) in World War Two. Indeed, even where that limited protection was in force, its scope and force often depended more on human factors than on any rule of law:

 [A Dutch civilian doctor] told me of what he was doing for the men from Rotterdam, who had been marched down ill clad and badly shod, underfed and often ill, to work in miserable conditions on the defenses south of Ede. He had been ordered by the Germans to undertake their medical supervision but he had made it quite clear to the Todt Organization, with admirable courage, that he regarded it as no part of his duties as a medical man, under any circumstances to get the maximum amount of work out of the people in his care and that he would look after them on his own lines or not at all. The Germans were obliged to accept.

John W. Hackett, I Was A Stranger, Houghton Mifflin (Boston, 1978) at 153.

    The duel Axis approach is represented by the Commisar Order issued to German troops on the invasion of the USSR in 1941. It ordered the execution, out of hand, of captured Russian political officers, as well as all prisoners of war who were convinced Communists. How such an order was applied varied depending on the German commanders. Heinrici of the 4th Army, Lindemann of the 18th Army, and von Mackensen of the 14th Army, for example ignored Hitler's initial Barbarossa Decree of 13 May, 1941, which limited the jurisdiction of military courts to try soldiers committing acts of violence against the Soviet civilian population. See, Alfred M. de Zayas, The Wehrmacht War Crimes Bureau 1939-1945 at pp. 20-21.

    When the War ended, massive proof was developed to demonstrate that Axis policy involved the destruction of civilian populations on racial, ethnic, political and economic grounds as well as for the general purpose of terrorizing any potential resistance. The distinction between that policy and Allied bombing of Axis cities was well stated in the Judgment of the Nuremberg Tribunal in United States v. Ohlendorf, et al,  (the Einsatzgruppen Case [case materials]):

    It has already been adjudicated by a competent tribunal that Germany under its Nazi rulers started an aggressive war. The bombing of ...German cities followed the bombing of ...Allied cities; the bombing of German cities succeeded, in point of time the acts [Einsatzgruppen murders] discussed here. But even if it were assumed for purposes of illustration that the Allies bombed German cities without Germans having bombed Allied cities, there still is no parallelism between an act of legitimate warfare, namely the bombing of a city, with its concomitant loss of civilian life, and the premeditated killing of all members of certain categories of the civilian population in occupied territory.

    A city is bombed for tactical purposes; communications are to be destroyed, railroads wrecked, ammunition plants demolished, factories razed, all for the purpose of impeding the military. In these operations it inevitably happens that nonmilitary persons are killed. This is an incident, a grave incident to be sure, but an unavoidable corollary of battle action. The civilians are not individualized. The bomb falls, it is aimed at the railroad yards, houses along the track are hit and many of their occupants killed. But that is entirely different, both in fact and in law, from an armed force marching up to these same railroad tracks, entering those houses...dragging out the men, women and children and shooting them.

IV Trials of War Criminals before the Nuernberg Military Tribunals, pp466-467.

    The Tribunal's distinction is made clear by the details of German actions in the course of occupying territories of the USSR in the summer of 1941. The following extract from a Situation Report used as evidence in the Einsatzgruppen Case starkly illustrates that difference:

Partly because of the better economic situation of the Jews under the Bolshevist regime and their activities as informers and agents of the NKVD, partly because of the explosions and the resulting fires, the public feeling against the Jews was very strong. As an added factor it was proved that the Jews participated in the arson. The population expected adequate retaliatory measures by the German authorities. Consequently all Jews of Kiev were requested, in agreement with the city commander, to appear on Monday, 29 September by 8 o'clock at a designated place. These announcements were posted by members of the Ukrainian militia in the entire city. Simultaneously it was announced orally that all Jews were to be moved. In collaboration with the group [Gruppen] staff and 2 Kommandos of the police regiment South, the Sonderkommando 4a executed on 29 and 30 September, 33,771 Jews. Money, valuables, underwear and clothing were secured and placed partly at the disposal of the NSV [Nazi Party Public Welfare Organization] for use of the racial Germans, partly given to the city administration authorities for use of the needy population. The transaction was carried out without friction. No incidents occurred. The "Resettlement measure" against the Jews was approved throughout by the population. The fact that in reality the Jews were liquidated was hardly known until now, according to up-to-date experiences it would, however, hardly have been objected to. The measures were also approved by the Wehrmacht. The Jews who were not yet apprehended as well as those who gradually returned from their flight to the city were in each case treated accordingly.

Operational Situation Report, USSR No. 106, 7 October, 1941
, Document No. 31-40, Prosecution Exhibit 30.

    Comparisons of mass suffering may be invidious, but it must be noted that the conduct of the Japanese in China, Korea, the Pacific and Southeast Asia resulted in at least as many civilian deaths as the German crimes.

 James Bradley describes Japanese retaliation for the Doolittle raid on Tokyo in April, 1942:

 Chiang Kai-shek ...cabled Roosevelt about the revenge Japanese forces wrought on his people. "After they had been caught unawares by the falling of American bombs on Tokyo, Japanese troops attacked the coastal areas of China where many of the American fliers had landed. These Japanese troops slaughtered every man, woman, and child in those areas --let me repeat-- these Japanese troops slaughtered every man, woman and child in those areas." Chiang did not exaggerate. In describing the campaign or retaliation in his memoirs, an American general later wrote, "A quarter million Chinese soldiers and civilians were killed in the three month campaign."

James Bradley, Flyboys at p. 112, Little Brown (New York, 2003).

    The post-war expulsion and, in many cases, murder of German civilians in territory which had been occupied or seized by Nazi Germany resulted in millions of civilian deaths. See Generally, Giles MacDonogh, After The Reich, Basic Books, (New York, 2007)

    Professor Lauterpacht notes in the British Manual:

    Before the First World War the tendency was to regard hostilities as being restricted to the armed forces of the belligerents, and to differentiate between them and the ordinary citizens of the contending States who did not take up arms. As the result, however, of the practice followed by the belligerents in the two world wars, it is no longer possible to say that international law protects the civilian population from injury which is incidental to attack upon legitimate military objectives. Nevertheless, notwithstanding these developments, it is a generally recognized rule of international law that civilians must not be made the object of attack directed exclusively against them.

British Manual of Military Law, supra, at p.8, §13.

    After the World War Two experience the international community determined to create a more specific regime to protect civilians. The result was the 1949 Geneva Convention IV Relative To The Protection Of Civilian Persons In Time Of War


What the Geneva Civilians Convention Does

    The Convention protects civilians in an international armed conflict (and in limited circumstances in an internal conflict) against some of the worst abuses of the Second World War. Most importantly the general provisions of Part II of the Convention "...cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war." They include:


"The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect."


That the Parties endeavor "...to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas."


That "...civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may [never] be the object of attack but shall at all times be respected and protected by the Parties to the conflict."


"Convoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying wounded and sick civilians, the infirm and maternity cases, shall be respected and protected in the same manner as the hospitals..."


The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.

    In addition, Part III, provides for provisions common to the territories of the parties and to occupied territories, [the common provisions] including:

bulletProtected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
bulletWomen shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.
bulletWithout prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.
bulletThe presence of a protected person may not be used to render certain points or areas immune from military operations [that is, no "human shields"].
bulletNo physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.
bulletThe Parties agree that they are "prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents."
bulletNo protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.
bulletPillage is prohibited.
bulletReprisals against protected persons and their property are prohibited.
bulletThe taking of hostages is prohibited.

    The provisions of the Convention have, of course, been repeatedly violated by rogue states since their enactment. There is some argument, however, that they have limited or reduced the suffering of civilians in other conflict, especially in which the Western powers have been involved.

Treatment Of Women

    Despite the specific protection accorded women in various Geneva and Hague Conventions, see, e,g. "[w]omen shall be treated with all consideration due to their sex," Wounded And Sick Convention Article 12, both during and after the Second World War there were repeated instances of forced prostitution and mass rape as a means of warfare. Thus, for example, the Japanese armed forces forcibly enlisted thousands of Korean and other Asian women in forced prostitution. Mass rape as a means of brutalization of the civilian populace has an even longer history. Research Note: For some information on legal positions re: rape as a war crimes see these quotes from 15 Human Rights  Quarterly 230-261(1993).

    See, Kadic v Karadzic, 70 F.3rd 232 (2nd Cir. 1995), Rehearing Denied, 74 F.3rd 377 (2nd Cir. 1996) Cert. Denied 518 U.S. 1005 (1996), in which the Second Circuit recognized rape as one of the  atrocities "long ... recognized in international law as violations of the law of war," citing In re Yamashita, 327 U.S. 1, 14, 66 S.Ct. 340, 347, 90 L.Ed. 499 (1946).


Questions To Consider About Civilians


5.2.1 Consider the following quotations:

...On February 22, 1942, in one of his dinner-table monologues, Hitler reiterated the pronouncement that the Jew was the tuberculosis germ of humankind and compared his war against the Jews with the work of Louis Pasteur and Heinrich Kock against bacteria in the previous century. Diseases were caused by the Jewish germ, he continued, but "We shall be cured if we dispose of the Jew....The causes of those diseases is the racial germ that corrupts the mixture of the blood." This statement was made a month after the Wannesee Coference [where the plans for the "final solution" were completed].

Leni Yahil, The Holocaust, Oxford Univ. Press (1990) p.44.

    Louseous Japanicas: The first serious outbreak of this lice epidemic was officially noted on December 7, 1941 at Honolulu, T.H. To the Marine corps, especially trained in combating this type of pestilence, was assigned the gigantic task of extermination. Extensive experience on Guadalcanal, Tarawa and Saipan have shown that this louse inhabits coral atolls in the South Pacific, particularly in pill boxes, palm trees, caves, swamps and jungles. Flame throwers, mortars, grenades and bayonets have proven to be an effective remedy. But before a complete cure may be effected the origin of the plague, the breeding grounds around the Tokyo area, must be completely annihilated.

Caption to cartoon in Leatherneck Magazine, March, 1945, reprinted in War Without Mercy, supra at 185 (Emphasis added). Note the cartoon appeared the same month the U.S. adopted the fire-bombing policy against Japanese cities.

    After comparing these statements do you see any similarities? One was cited as proof that the Nazi leadership intended to commit the crime of genocide. At least in tone, does the second have the same impact?

5.2.2 Examine the 1949 Geneva Convention IV Relative To The Protection Of Civilian Persons In Time Of War. Compare it with Articles 44,  45, and 46 of Hague Convention IV of 1907. What changes were included to deal with the issues discussed in Section 5.2?
5.2.3 Review Professor Lauterpacht's comment from §13 of the British Manual. Do you agree or disagree with his statement that "[b]efore the First World War the tendency was to regard hostilities as being restricted to the armed forces of the belligerents...?" State your reasons. Professor Lauterpacht says that "...it is no longer possible to say that international law protects the civilian population from injury which is incidental to attack upon legitimate military objectives." Have smart weapons affected the validity of that statement?
5.2.4 Consider the Iraqi occupation of Kuwait including mistreatment of civilians and of their country. Compare the actions reflected in the evidence provided by these websites with the requirements of the Geneva Civilians Convention. Identify any violations.
5.2.5 Compare Yamashita with Ex Parte Greene. Was one defendant granted more substantive or procedural due process rights than the other? In formulating your answer keep in mind the actual danger of invasion in England in May, 1940 and the United States in January, 1942.

5.3 Other Protected Persons


   In addition to POWs and civilians there are other specialized categories of protected persons. Consider the treatment of aliens and internees which follows and that of the sick and wounded. Both are non-combatants either by choice or circumstances. What other factors require their specialized treatment?

5.3.1 Aliens And Internees


    A State's treatment of the citizens of a hostile nation may vary from inaction to registration and restrictions to outright internment, and the levels of internment itself may vary. Thus, for example, in World War Two, both the United States and Japan interned citizens of the other (although the U.S. also interned its own citizens of Japanese ancestry...See, Korematsu v. United States, 319 U.S. 432 (1945).

    Compare the following descriptions of internment:

    Carl Mydans, the Life Magazine photographer, describes conditions at Santa Tomás University, the Japanese internment camp in Manila where he had been a prisoner.  The university gymnasium--"the horrorspot of the camp," as Mydans called it--housed 400 single men, most of them sick or elderly, who spent their days and night on cots crammed head to foot and side by side. In the courtyards, interned families lived in small shanties they made of assorted refuse--scraps of tin, wood, corrugated metal, bamboo, matting and blankets. Everywhere Mydans looked he saw the grim signs of hunger and malnutrition...At the time of the liberation, the average adult male weighed 112 pounds and women weighed 100 pounds--an average loss of 27 per cent of body weight during imprisonment.

Rafael Steinberg, Return To The Philippines, (Time-Life, New York, 1980) at p.129.

    "Every place we go we cannot escape the dust," wrote a Japanese-American youngster of his Topaz, Utah, internment camp. "Inside of our houses, in the laundry, in the latrines, in the mess halls, dust and more dust, dust everywhere." All except two of the 10 camps were situated in barren, desolate desert country. Each family was assigned to an "apartment"--one room measuring 20 by 25 feet, in a wooden barracks covered with tar paper. "Aside from the absurdity of living that way," one internee later recalled, "life went on pretty much as usual."  The Japanese-Americans maintained a stable, small-town existence complete with fire, police and post-office departments, schools, hospitals and camp-written newspapers.

Ronald H. Bailey, The Home Front: U.S.A., (Time-Life, New York, 1978) at p.35.

    The Geneva Civilians Convention  contains specific provisions for protection of civilian internees. Article 5 provides for internment in certain security cases, and Articles 35-37 and 48 allow enemy civilians to leave hostile territory in most cases.

5.3.2 The Sick And Wounded


    The reduction in the hospital ration, to make men discharge themselves, was far from an idle threat. As soon as the huts which served the wards became full, the ration would be cut. This meant that each man received half his normal rice ration in the form of gruel or "pap" and no vegetables at all...This might continue for two or three weeks and always resulted in an explosion of fresh vitamin deficiency disease and eventually in many more deaths...On not less than five occasions did this happen, and it was an act of diabolical cruelty on the part of the Japanese.  The rows of men in the hospital, skeletons clothed in a thin layer of muscle and skin, is a sight I shall not forget.

Richard Philps, Prisoner Doctor, The Book Guild (Lewes, Sussex, 1996).

    The wide variance in, and often vicious treatment of the sick and wounded in World War Two gave rise to Convention I for the Amelioration Of The Condition Of The Wounded And Sick In Armed Forces In The Field  (abridged), and to the Convention II For The Amelioration Of The Condition Of Wounded, Sick And Shipwrecked Members Of The Armed Forces At Sea.

    The principle provisions are similar:

Members of the armed forces and other persons mentioned in the following Article, who are wounded or sick, shall be respected and protected in all circumstances.

They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not wilfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created.

Only urgent medical reasons will authorize priority in the order of treatment to be administered.

Women shall be treated with all consideration due to their sex. The Party to the conflict which is compelled to abandon wounded or sick to the enemy shall, as far as military considerations permit, leave with them a part of its medical personnel and material to assist in their care.

Wounded And Sick Convention, Article 12.

    The ICRC says that "wounded and sick" means "...any person whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability is in need of medical assistance or care, and who refrains from any act of hostility. The terms wounded and sick also cover maternity cases, new-born babies and other persons who may be in need of immediate medical assistance or care..." Frederic De Mulinen, Handbook On The Law Of War For Armed Forces at ¶¶ 123-124, ICRC (Geneva, 1987).

5.3.3 Medical And Religious Personnel


    Medical and religious personnel (chaplains) who are "retained" by a detaining power are not considered as prisoners of war, although at a minimum they have all the rights accorded POWs under the Geneva POW Convention.  Article 33 provides in part that they:

...shall also be granted all facilities necessary to provide for the medical care of, and religious ministration to prisoners of war.

They shall continue to exercise their medical and spiritual functions for the benefit of prisoners of war, preferably those belonging to the armed forces upon which they depend, within the scope of the military laws and regulations of the Detaining Power and under the control of its competent services, in accordance with their professional etiquette.

    During the Second World War, Japan claimed that the United States routinely attacked clearly marked Japanese hospital ships. Given the Japanese history of misuse of the red cross emblem (found repeatedly in POW autobiographies after the war), the claims, which may well be accurate, could still describe justified conduct: 

On December 15 [1943] the Japanese foreign office sent a circular message, Number 467, to its major embassies abroad. It reported, "Japanese hospital ship Buenos Aires Maru was attacked by a United States aircraft, Consolidated B-24. Vessel was hit by a bomb on port side and sunk in about forty minutes." Survivors--wounded soldiers, doctors and a large contingent of nurses going home on leave--then crowded into eighteen lifeboats. The message went on to report that although red sheets forming a red cross had been held aloft, an American plane, coming in at an altitude of only about three hundred feet, machine-gunned the lifeboats. The attack on the Buenos Aires Maru was not an isolated incident. The communique reported that ten other clearly marked hospital ships had been attacked by American aircraft.

Joseph E. Persico, Roosevelt's Secret War 244, Random House (New York, 2001).

Questions To Consider About Other Protected Persons


5.3.1  If a party abuses the use of the red cross emblem, how may the other side respond? Were the U.S. attacks on the Buenos Aires Maru and other ships justified?
5.3.2  What U.S. legislation performs the obligations created under Article 54 of the Geneva Wounded Convention? Are you familiar with any violations of such legislation.
5.3.3   In a "holy war" where religious leaders fulfill a military function, may the rights provided by the 1949 Convention be, in some manner, restricted?  How would you balance the competing interests?
5.3.4 Is Korematsu still valid law in the United States? If so, could its application be affected by any existing international law? Consider treaties and decisions of international tribunals in formulating your answer.


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