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 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).

       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

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, or 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, of the 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 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:

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.

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:

 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 U.S.S.R. 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 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:

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.

    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).

    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: Allied Prisoners in Europe, 1939-1945:

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:

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 lists 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:

    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:

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.

    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).

    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.

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:

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:

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]):

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:

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:

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:

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. 

    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 (2^nd Cir. 1995), Rehearing Denied, 74 F.3rd 377 (2^nd 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).

   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?

    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:

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

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.

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:

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).

    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:

    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: 

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