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This is the
second of a series on international, military, and U.S. law as it
pertains to treatment of detainees during times of conflict. The first
post discussed international law as dileneated in the Geneva
Conventions. This post covers U.S. military law and the War Crimes Act
of 1996.
This
is not editorized material but factual information contained in a
document by an attorney for the Library of Congress in a report she
prepared at the request of the Senate in 2005 on what the law states in
regard to treatment of detainees.
For
purposes of this report, it is important to understand exactly how the
military defines civilian internees. According to this report most of
the detainees at Abu Ghraib would fall into this category. This
definition would set the precedent for any other civilian internees
held by the U.S.
According
to a 2004 Investigation of the Abu Ghraib Detention Facility and the
205th Intelligence Brigade, prepared by LTG Anthony R. Jones and MC
George R. Fay [hereafter called the Fay Report] civilian internee(CI)
is defined as follows:[This document may be reviewed in its entirety at
https://www.defenselink/Augt2004/d20040825/fay.pdf
"'Civilian
Internee' is someone who is interned during military conflict or
occupation for protection or for security reasons or because he has
committed an offense against the detaining power. Within the confining
facility, however, they were further sub-classifications that were
used, to include security detainee, criminal detainee, and MI Hold.Â
Security detainees are personnel held during military conflict or
occupation for their own safety or because they pose a threat to
coalition forces, or its mission, and for intelligence value. This
includes persons held for committing offenses, or previous attempts,
against the coalition, or previous coalitions, members of the
Provisional Government, Non-Government organizations, state
infrastructure, or any person accused of committing war crimes or
crimes against humanity.Â
As
previously dileneated in the Geneva Conventions, these people are not
entitled to their rights of communication. Rights of communication
means contact with the outside world, including communication of a
personal nature with a family member,Article 25; right to visitation by
an International Red Cross Member or any other relief organization
personnel, Article 30;Â right to notify family of internment, Article
106; and right to send and receive mail, Article 107.Â
All other treatment regarding CI pertain.
U.S. Military Implementation [Of Geneva Accords]
U.S.
implementation of the Geneva Conventions in regard to prisoners is
found primary in U.S. Army's regulation(AR) 190-8. Paragraphs 1-5
set forth set forth the general standards for treatment of all
detainees:
a. U.S. policy relevant to the treatment of prisoners of war (EPW), civilian internees(CI) and RP(retained personnel) is as
follows:Â [Retained personnel include chaplains, Red Cross
representatives, and medical personnel].
(1) All persons detained, captured, interred or otherwise held in
custody by the U.S. Army during the course of a conflict will be given
humanitarian care and treatment from the moment they fall into the
hands of U.S. forces until final release or repatriation.
(2) All persons taken into custody will be provided with the protections
of a neutral protecting agency-usually the International Red
Cross-(GPW) until some other legal status is determined by a competent
authority.
(3) The punishment of EPW, CI, and RP known to have committed serious offenses will be administered [in accordance with]
due process of law per the authority of the GPW and Geneva Conventions
(GC), the Uniform Code of Military Justice, and the Manual For Court
Martials.
(4) The inhuman treatment of EPW, CI, and RP is prohibited and is not justified by the stress of combat or deep provocation.Â
Violation is a serious offense and is punishable under international
law and the Uniform Code of Military Justice (UCMJ).
b. All prisoners will receive humane treatment without regard to race, nationality,religion, political opinion, sex or
other criteria. The following acts are prohibited: murder, torture,
corporal punishment, mutilation, the taking of hostages, sensory
deprivation, collective punishments, execution with trial by proper
authorities, and all cruel and degrading treatment.
c. All persons will be respected as human beings.Â
They will be protected against such acts as rape, forced prostitution,
assault and theft, public curiosity, bodily injury and reprisals of any
kind. They will not be subjected to medical experiments of any kind.Â
This list is not exclusive. EPW/RP are to be procted from threats or
violence of any kind.
d. Photographing, filming and video taping of EPW, CI, and RP is forbidden other than for internal internment facility management or
for intelligence/counterintelligence is strictly prohibited. No group,
wide area or aerial photos of EPW, CI and RP or the facility may be
taken unless approved by the senior Military Police officer in the
Interment facility commander's chain of command.
e. A neutral state or an international humanitarian organization such as the International Committee of the Red Cross(ICRC) may be
designated as the protecting power(PP) to monitor whether protected
individuals are receiving humane treatment as required by the Geneva
Conventions. The text of the Geneva Conventions, its annexes and any
special agreements will be posted in each camp in the language of the
EPW CI, and the RP.
War Crimes Act:
War
crimes committed by individuals not subject to the Uniform Code of
Military Justice may be prosecuted in federal court under the War
Crimes Act of 1996. Under that statute, war crimes committed by or
against a U.S. National are punishable by fine or imprisonment, and a
war crime that results in the death of an individual is punishable by
the death penalty. (18 U. S. C. & 2441(a-b)) War crimes are defined
to mean "grave breaches" under the Geneva Conventions and and
violations of common Article 3 (18 U.S.C. and 2441 (c)(1-3)).
https://www.usembassy.it/pdf/other/RL32395.pdf
