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:

Nicaraugua v US at ¶ 218.

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

    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 using often conscripted forces, the resulting hostility and violence often overwhelmed any good intentions. See, General Order 100  (the "Lieber Code").

       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 was again inadequate to the mass extermination, enslavement, and mistreatment of prisoners by the Axis powers and the U.S.S.R. during World War Two. Ibid

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 :

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.

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.

    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:

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

    Mistreatment was not confined to Asia, nor to the Axis:

    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:

    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:

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

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

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

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

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

    The status of a captured individual was often as 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:

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

    The issue has been in the recent fore, 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:

 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.

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).

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 USSR because it was not a signatory:

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:

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).

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

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

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

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).

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).

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.

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:

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.

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

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:

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 embedded 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 DOJ 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:

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:

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.

    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:

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.

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:

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," as well as 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."

    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:

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 Interrogation,  Atlantic Monthly , October, 2003. Those techniques include arrest, detention, deprivation of sensory stimuli, threats, pain, hypnosis and use of drugs. The manual also list noncoercive techniques designed to induce regression:

    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:

    There is currently 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 have claimed physical abuse, and those claims have been denied by American authorities. See, Guantanamo interrogations.  Bowden says sensory deprivation, sleep deprivation and other torture techniques are used in some instances.    

    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. Again, any potential liability is uncertain and depends on as yet unrevealed issues of fact and law.

    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:

Evan Thomas, Newsweek, May 17, 2004.

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

    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."

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."

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.

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:

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

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