U.S. in violation of Geneva convention?

[Jim Dixon]

On Mon, 15 Dec 2003, Bill Stewart wrote:

> >The Geneva conventions require, among other things, that soldiers wear
> >uniforms.  Maybe it was just the movies, but I do believe that in the
> >first and second world wars combatants dressed in civilian clothes were
> >routinely shot.
>
> But Saddam isn't a soldier - he's a politician.   He may also have
> been in charge of his country's army, but he was being attacked because
> of his position as a political leader.

Saddam was apparently quite proud of being a soldier.  He routinely wore a
uniform bearing insignia of miliary rank.  He carried weapons.  He was
armed when captured and had with him evidence that he was directing
military operations.

In any case, if you are arguing that he should be treated as a POW, you
cannot simultaneously argue that he is not a soldier.

On Mon, 15 Dec 2003, Dave Howe wrote:

> > The Geneva conventions require, among other things, that soldiers wear
> > uniforms.
>   No, they don't.

The provisions are reasonably clear.  You wear a uniform of some sort, or
you openly display your weapons:

"3. In order to promote the protection of the civilian population from the
effects of hostilities, combatants are obliged to distinguish themselves
from the civilian population while they are engaged in an attack or in a
military operation preparatory to an attack. Recognizing, however, that
there are situations in armed conflicts where, owing to the nature of the
hostilities an armed combatant cannot so distinguish himself, he shall
retain his status as a combatant, provided that, in such situations, he
carries his arms openly:

"(a) During each military engagement, and

"(b) During such time as he is visible to the adversary while he is
engaged in a military deployment preceding the launching of an attack in
which he is to participate.

"Acts which comply with the requirements of this paragraph shall not be
considered as perfidious within the meaning of Article 37, paragraph 1
(c)."  (http://www.unhchr.ch/html/menu3/b/93.htm)

If you don't wear a uniform or display your weapons during an engagement,
whether offensive or defensive, then you are engaging in perfidious acts
and lose the protection of the Geneva conventions.  Note that this says
"during each military engagement"; if you drop your weapon and try to melt
into the crowd, you have failed to comply, your behaviour is perfidious.

>   If you are defending though, you are entitled to the protection of the
> geneva convention (and lawful combatant status) simply by being an "open"
> hostile (carrying your weaponry openly and obeying all the usual
> provisions of the geneva convention, which obviously doesn't allow hiding
> in a crowd of civilians). This is the "take up arms" provision so beloved
> of the american people - that in the face of invasion, the ordinary
> citizen would "take up arms" to defend his home and neighbours.

I can find no support for what you say in this paragraph.  Attackers are
not distinguished from defenders except at the level of individual
engagements.  That is, if you are a member of an irregular force invading
another country and are captured, you are a POW, so long as you comply
with the rules: distinguish yourself from the civilian population, and
display your weapons openly.

Notwithstanding the above,

"7. This Article is not intended to change the generally accepted practice
of States with respect to the wearing of the uniform by combatants
assigned to the regular, uniformed armed units of a Party to the
conflict."

Saddam was an officer in a regular, uniformed armed unit.  He had worn his
uniform conspicuously for many years. He was not an irregular combatant.
Therefore he was obliged to continue to wear a uniform while engaged in
military action and not doing so could be considered perfidious.

The following is also relevant:

"Article 46.-Spies

"1. Notwithstanding any other provision of the Conventions or of this
Protocol, any member of the armed forces of a Party to the conflict who
falls into the power of an adverse Party while engaging in espionage shall
not have the right to the status of prisoner of war and may be treated as
a spy.

"2. A member of the armed forces of a Party to the conflict who, on behalf
of that Party and in territory controlled by an adverse Party, gathers or
attempts to gather information shall not be considered as engaging in
espionage if, while so acting, he is in the uniform of his armed forces."

If you gather information or attempt to do so, and are NOT in uniform,
you can be considered a spy and so are not eligible for POW status.

According to news reports, our friend Saddam had many intelligence reports
with him when captured.  He was gathering information for military
purposes.  He was not in uniform.  Therefore he forfeited any right to be
treated as a captured soldier - specifically because he was not in
uniform.

It was presumably on one of these grounds that Allied prisoners out of
uniform when captured were routinely executed in Europe during the second
world war: they were members of uniformed units and not in uniform; or
they were considered to be gathering information and not in uniform.

There are larger questions here.  Irregular forces whose tactics consist
largely of murdering random civilians because that's easier than fighting
soldiers are not military forces in the sense of the Geneva conventions,
especially where they conceal their weapons and hide behind civilians.
They are unlawful combatants and need not be treated as POWs if captured.
Nor should their leaders be.

--
Jim Dixon  jdd at dixons.org   tel +44 117 982 0786  mobile +44 797 373 7881
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