This DOD memo is a list of talking points to address questions concerning the role of international law and the Geneva Convention relating to POWs.
TRANSFERRED TO OTHER AGENCY
March 24, 2003, 2:15 p.m.
-DODD
C. Tierney/ DoD OGC
Talking Points
Treatment of Enemy Prisoners of War
Under the Geneva Convention
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Law of War
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The "law of war" is that part of international law that regulates the conduct of armed hostilities. It is often called the law of armed conflict. The law of war encompasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary international law (DoD Dir 5100.71);
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The law of war derives from two principal sources:
o International agreements (such as the Hague and Geneva Conventions)
o Customary international law—that body of unwritten or customary law which is firmly established by the customs and practice of nations.
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The law of war obligations of the United States are observed and enforced by all U.S. Armed Forces.
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All U.S. Armed Forces are•irected to prevent violations of the law of war. This includes the requirement to promptly report all possible, suspected, or alleged violations of the law of war, irrespective of who commits them and who the victims are.
o Any reported violations of the law of war involving U.S. Armed Forces will be thoroughly investigated and prosecuted, where appropriate.
Geneva Convention Relative to the Treatment of Prisoners of War
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Fundamental treaty relative to the protection of enemy prisoners of war (EPW). Negotiated after WW II, over 170 parties, including the United States and Iraq.
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Protections apply upon the capture by or surrender to enemy forces.
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Capturing power responsible for the treatment of EPWs captured or held by its forces, irrespective of the individual responsibilities of the members of its forces.
Fundamental Protections
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EPWs must at all times be humanely treated.
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Any, act or omission that causes the death or endangers a EPW is prohibited and is a serious breach of the Convention.
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EPWs must be removed from the battlefield as soon as circumstances permit and at all times protected from physical and mental harm.
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EPWs must be provided adequate food, facilities and medical aid.
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EPWs must be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
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If questioned, EPWs may only be required to provide their name, rank, serial number, and date of birth.
o EPWs may not be subjected to physical or mental torture and those who refuse to answer questions may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.
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Subject to valid security rcasons, EPWs must be allowed to retain their personal property, protective gear, and valuables. These items may not be taken from an EPW unless property accounted and receipted.
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Representatives from the International Committee of the Red Cross must be permitted access to EPWs as soon as practical.
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Female EPWs must be protected against sexual assault. Female EPWs shall be treated with the regard due to their sex and, like all EPWs, are entitled to respect for their person and their honor.
Protection Against Insults and Public Curiosity
• As noted, EPWs must be protected against insults and public curiosity. This provision of the Geneva Convention prohibits EPWs from being forced to appear before television cameras or paraded in public.
40 Iraq's recent videotaping of U.S. EPWs, which was aired on al-Jazeera,
unlawfully humiliated EPWs and violates the Geneva Convention.
o During the first Gulf War, Iraq similarly mistreated Coalition EPWs.
Proper Treatment of the Dead
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Governed by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
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Parties to the conflict must protect the dead against pillage and ill-treatment.
o The dead must be looked after and brought behind the lines with as much can as wounded.
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Parties are also responsible to ensure that the dead are honorably interred and any graves respected.
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Iraq's mistreatment of the bodies of U.S. servicemembers and its videotaping . and publicizing these images violates these provisions of the law of war.
Coalition Forces EPW Treatment
VIM
Current Coalition Public Affairs Practices
Responsibility for Violations of the Geneva Convention Protections
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The mistreatment of EPWs violates the law of war.
o Specifically, grave breaches of the Geneva Convention include: the willful killing, torture, inhuman treatment, or the willful causing of great suffering or serious injury to body or health to an EPW.
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Those individuals who fail to provide Coalition EPWs with the protections required by the Geneva Convention will be held accountable for their actions (or inaction). Likewise, those within the Iraqi military and regime who direct such action, or allow it to occur, will also be held accountable.