Adam Roberts: Can the Geneva Convention still protect PoWs?

Iraq parades captured soldiers on television while the US refused to give enemy prisoners PoW status. So is there any hope of humane treatment for people seized in war?

There were good reasons for the US government to express concern over the fate of prisoners held in Iraqi hands – as it did on Sunday in response to the capture, and display on Al-Jazeera and Iraqi television, of the five soldiers who had been captured near Nasiriyah. Iraq's record of treating prisoners is dire.

The immediate occasion for concern about the US prisoners was the videotape footage of them under questioning. According to reports, the full tapes are deeply shocking. The broadcasts undoubtedly constituted a violation of article 13 of the 1949 Geneva PoW Convention, which expressly provides that PoWs "must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity".

The more fundamental reason for the concern about the prisoners is that there is a long history of Iraqi mistreatment and torture of PoWs. In the war between Iraq and Iran of 1980-88, the huge numbers of prisoners on both sides were often treated in a manner that violated the Geneva Convention. There was excessive use of force by camp guards, especially in Iraq. After that war both sides were slow to repatriate prisoners, and many remain unaccounted for to his day.

In the 1991 Gulf War, coalition prisoners in Iraqi hands were treated in a manner inconsistent with the convention, and many, perhaps even most, were tortured. Iraq paraded captured airmen on TV, and used prisoners as human shields. The International Committee of the Red Cross (ICRC) was denied access. All this was in violation of the convention.

Against this grim background, there are bound to be questions about whether the Geneva Conventions offer any realistic hope of humane treatment for prisoners captured in this war – or of mitigating the horrors of war more generally. The humane treatment of PoWs has featured in international treaties on the laws of war since at least the 18th century. The 1949 Geneva Conventions, negotiated by representatives of states and of their armed forces, incorporate the experience of the Second World War – particularly the need to specify in unambiguous detail what should, and what should not, be done to PoWs.

The rules reflect practical as well as ethical considerations: there is no point in punishing those no longer able to fight; humane treatment may actually encourage soldiers to surrender; decent treatment of captives may lead to reciprocity in the treatment of one's own forces.

The particular rule against exposing prisoners to "insults and public curiosity" has become important in debates about PoWs because many violations of it are, by their very nature, highly publicised. In 1966, North Vietnam showed film of US prisoners being paraded through the streets of Hanoi, where they were exposed to public wrath. In the 1999 war over Kosovo between the US-led coalition and the Federal Republic of Yugoslavia, captured American servicemen were shown on TV, leading to protests similar to those of recent days.

In these cases, a reason for the showing of captured PoWs on TV appears to have been that this is one way a less developed state, under airborne assault from a militarily superior adversary, can demonstrate that it has some power. By extracting statements and confessions, it can help to reinforce popular hatred of the adversary.

Although there is widespread agreement that the public exposure of prisoners in these cases was a violation of article 13, what about other cases? Is any photo or videotape showing captured PoWs a violation? There is no general and unambiguous answer to such questions. The authoritative ICRC volume of commentary on the Geneva PoW Convention offers no assistance on this matter. The actual practice seen in modern wars may be the best guide. If a practice is accepted by other states it may come to be considered legal.

Experience suggests that there is seldom any rooted objection to the publication of photos showing a crowd of soldiers in the act of surrender, especially if the soldiers are not individually identifiable. Some pictures of Iraqi soldiers surrendering, published in the last few days, have fitted this pattern and have caused little comment.

What is particularly objectionable about the footage of the five US prisoners is that they have apparently been compelled to answer questions going beyond what they are obliged to provide under the PoW Convention: name, rank, date of birth and number. The fears that there has been ill-treatment or torture are well-founded.

The Iraqi Defence Minister, Sultan Hashim Ahmed, has given assurances that Iraq will not harm these prisoners and will treat them in accord with the PoW Convention. One test of whether these words mean anything at all will be whether the ICRC is given access to coalition PoWs being held in Iraq. Experience suggests that they can do much to alleviate the horrors of imprisonment. Many Allied prisoners held by the Axis powers in the Second World War had reason to be grateful for the efforts of the Red Cross.

A particular hazard for prisoners in this war is that the Americans' treatment of prisoners in the "war on terror" has exposed the US to the criticism that it has itself avoided full application of the 1949 Geneva PoW Convention in its treatment of al-Qa'ida and Taliban detainees. All the detainees at Guantanamo have been classified as "unlawful combatants" not entitled to PoW status, but the US policy is to treat them "in a manner consistent with" the PoW Convention.

The category of "unlawful combatant" is not new, and its application to some of the Guantanamo prisoners can be defended. What is much harder to stomach is the assumption that this category fits all the Taliban prisoners in Guantanamo, and the inept US failure to make clear that it accepts the full application of certain fundamental guarantees of humane treatment (which are spelt out in article 75 of the 1977 Geneva Protocol).

The US attitude to the application of the PoW Convention at Guantanamo was widely criticised, partly because of the Pentagon's inept issuing on 19 January last year of a photograph showing bound and shackled prisoners, heads and eyes covered, kneeling before US soldiers upon their arrival at Guantanamo. The suggestion of Donald Rumsfeld, the US Defence Secretary, that unlawful combatants had no rights under the Geneva Convention, although later modified, did lasting damage.

The early and inept expressions of this policy by the Pentagon and the White House caused anxiety among military lawyers in the American armed forces, who recognised that US forces might be subject to capture and had an interest in reciprocal application of the rules, even in circumstances that varied from what was laid down in the Geneva Convention.

Iraqi violations of the Geneva rules regarding PoWs began long before Guantanamo and cannot be justified or explained by reference to US actions. On the other hand, the US has much work to do to convince a sceptical world that it is fully committed to consistent application of all aspects of the law of war. It has a good case – few if any armed forces have such serious manuals on the application of the law of war – but in recent years that case has not been well presented.

Sir Adam Roberts is Professor of International Relations at Oxford University. He is the co-editor, with Richard Guelff, of 'Documents on the Laws of War' (OUP)