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May 30, 2004 - International Law and the Geneva Convention: We Take Hostages...













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International Law and the Geneva Convention: We Take Hostages

This is both logical and necessary.

Who would disagree?

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Sometimes you have to bend the rules at little, and you can when you’re in the right…

So there’s this:

U.S. military arrests war's 'bargaining chips'
Rights groups say practice holding people to pressure wanted relatives to surrender violates laws
Mohamad Bazzi, Middle East Correspondent, Newsday, May 25, 2004, 4:57 PM EDT

The gist…

 

BAGHDAD, Iraq -- U.S. troops wanted Jeanan Moayad's father.  When they couldn't find him, they took her husband in his place. 

Dhafir Ibrahim has been in U.S. custody for nearly four months.  Moayad insists that he is being held as a bargaining chip, and military officials have told her that he will be released when her father surrenders.  Her father is a scientist and former Baath party member who fled to Jordan soon after the fall of Saddam Hussein's regime. 

"My husband is a hostage," said Moayad, 35, an architect who carries a small portrait of Ibrahim in her purse.  "He didn't commit any crime."

In a little-noticed development amid Iraq's prison abuse scandal, the U.S. military is holding dozens of Iraqis as bargaining chips to put pressure on their wanted relatives to surrender, according to human rights groups.  These detainees are not accused of any crimes, and experts say their detention violates the Geneva Conventions and other international laws.  The practice also risks associating the United States with the tactics of countries that it has long criticized for arbitrary arrests. 

 

Yeah, but we’re the good guys.  The BAD GUYS take hostages.  We do what is necessary to defeat terrorism and evil. 

Got it? 

Well, some lawyer type folks seem to think this is wrong:

 

"It's clearly an abuse of the powers of arrest, to arrest one person and say that you're going to hold him until he gives information about somebody else, especially a close relative," said John Quigley, an international law professor at Ohio State University.  "Arrests are supposed to be based on suspicion that the person has committed some offense."

 

Well, this guy….  Ohio State?  He probably hangs out at Larry’s, that gay bar on High Street. 

To be clear, BAD GUYS take hostages and threaten families if they don’t give up the goods – in these cases the BAD family member.  It may look like we do this, but it is for a greater good, after all. 

Besides, we don’t do it. 

 

U.S. officials deny that there is a systematic practice of detaining relatives to pressure Iraqi fugitives into surrendering.  "The coalition does not take hostages," said a senior military official who asked not to be named.  "Relatives who might have information about wanted persons are sometimes detained for questioning, and then they are released.  There is no policy of holding people as bargaining chips."

 

Yep.  If there is no policy, well, it doesn’t happen. 

Or does it? 

 

… Iraqi human rights groups say they have documented dozens of cases similar to Moayad's, in which family members who are not accused of any crimes have been detained for weeks or even months and told that they would be released only when a wanted relative surrenders to U.S. forces. 

"We have many cases of Americans going to a house looking for someone, and when they can't find him, they take another family member in his place," said Bassem al-Rubaie, director of the Council of Legal Defense Care, a group of Iraqi lawyers that has been campaigning for prisoner rights.  "This has been going on since the early days of the American occupation."

In a recent report, the International Committee of the Red Cross quoted military intelligence officers as saying that between "70 and 90 percent" of the nearly 8,000 Iraqis detained by occupation forces had been arrested "by mistake." In some cases, the report found, U.S.  troops continued to hold people for several months after they had been cleared of any wrongdoing. 

Human rights groups first criticized the United States for detaining the relatives of wanted Iraqis in November, when U.S.  forces arrested the wife and daughter of Izzat Ibrahim al-Douri, one of Hussein's longtime deputies.  After Hussein was captured last year, al-Douri became the most wanted man in Iraq, and Washington put a $10 million bounty on his head. 

Al-Douri's wife and daughter are still in U.S.  custody, although rights monitors say they have not been charged with any crime.  Rights groups say the United States is committing a war crime by detaining al-Douri's relatives without charge.  "Taking hostages is a grave breach of the Geneva Conventions -- in other words, a war crime," Human Rights Watch wrote in a January letter to Defense Secretary Donald Rumsfeld. 

 

But this is war against evil.  Doesn’t anyone understand that? 

And after all, it not much different than what happens in Ohio. 

 

The senior U.S. military official declined to discuss the detention of al-Douri's relatives, saying it is a "special case with very unusual circumstances."  In the past, U.S. officials had likened the detentions to those of a material witness who is held for questioning.

 

Why don’t they just trust us on this? 

All these human rights monitors say there is no basis under international law for holding family members as material witnesses.  Hell, what do they know? 

Yes, detaining the relatives of a fugitive is a form of "moral coercion" forbidden under the Fourth Geneva Convention of 1949.  Big deal.  The convention, which guarantees the rights of civilians under military occupation, also prohibits punishing someone for an offense that he has not personally committed. 

But everything changed after 9/11 – as Steve Cambone, a key Bush appointee has said – you don’t want to know – the glove came off, as he said. 

Yeah, yeah - in the 1970s and '80s we did criticized the former Soviet Union and Eastern Bloc countries for making arbitrary arrests and for using relatives to exert pressure on fugitives and political prisoners.  But they were the BAD GUYS, damn it!  And yes, in our latest report on human rights conditions around the world, our State Department singled out several countries - including Uzbekistan, Pakistan and Syria - for using such tactics to pressure people to surrender or to force confessions.  But they are the BAD guys.  We're not.  This is a special circumstance, isn't it? 

You can click on the link for details of this particular arrest. 

The question of war crimes is raised here.  But how can the GOOD GUYS commit war crimes? 

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Footnote:

The relevant statutes - from a fellow who says he’s a 43-year-old lawyer in private practice in Chicago.  Maybe he is.  Maybe he isn’t. 

Here’s his analysis:

… holding innocent civilians hostage in order to induce their relatives to surrender is a plain violation of Articles 31, 33, and 34 of the Fourth Geneva Convention, Relative to the Protection of Civilian Persons in Time of War, signed at Geneva, August 12, 1949:

 

Art. 31.  No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties. 

Art. 33.  No protected person may be punished for an offence he or she has not personally committed.  Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. 

…. 

Reprisals against protected persons and their property are prohibited. 

Art. 34.  The taking of hostages is prohibited. 

 

A "protected person" under the Fourth Geneva Convention is broadly defined as follows:

 

Art. 4.  Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. 

 

Article 146 of the Fourth Geneva Convention requires each "High Contracting Party," including the United States, to enact legislation to punish those who commit grave breaches of the Convention.  Article 147 defines "grave breaches" as including "unlawful confinement" and "taking of hostages":

 

Art. 146.  The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. 

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.  …. 

Art. 147.  Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: ….  unlawful confinement of a protected person, …  taking of hostages …. 

 

The United States, in the War Crimes Act of 1996, codified at Title 18, section 1441 of the United States Code, implements sections 146 and 147's requirement to provide criminal penalties for grave breaches of the Fourth Geneva Convention, such as the taking of hostages:

 

Section 2441.  War crimes

(a) Offense.  - Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. 


(b) Circumstances.  - The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act). 


(c) Definition.  - As used in this section the term ''war crime'' means any conduct - defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949 …. 

 

Bottom line: every member of the United States armed forces, and every United States national, responsible for holding an Iraqi hostage in order to induce his or her relative to surrender is guilty of a grave breach of the Fourth Geneva Convention, and of 28 U.S.C. section 1441.  Every such person (particularly those in positions of authority) should be prosecuted as a war criminal. 































 
 
 
 

Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
 
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