"Freedom and fear, justice and cruelty have always been at war and we know God is
not neutral between them."--George W. Bush
Ouch. During the recent presidential campaign it seemed that we heard a lot more about "Joe the Plumber" than we did about what each candidate would do if asked by the International Criminal Court to extradite one or more members of the departing administration. It would have seemed a valid question to ask during debate. The answer would speak to the candidates vision for our role in the world. It might also test each on their knowledge of international law. Though the U.S. is not an ICC member, neither was Sudan prior to the indictment against that nation's standing president. Then comes the matter of the Geneva Convention, of which the U.S. is a signee. As to whether the "enemy combatants" in Afghanistan, Guantanamo Bay, and detained elsewhere constitute prisoners of war, the question remains hazy. On the other hand, the treatment of prisoners in Iraq must be considered to be covered I offer an excerpt from the Convention's text. I have highlighted those points which I have deemed particularly relevant in blue, but included the surrounding text of this excerpt in order that context be preserved:
Prisoners of war must at all times be humanely treated. Any unlawful act or
omission by the Detaining Power causing death or seriously endangering the
health of a prisoner of war in its custody is prohibited, and will be regarded
as a serious breach of the present Convention. In particular, no prisoner of war
may be subjected to physical mutilation or to medical or scientific experiments
of any kind which are not justified by the medical, dental or hospital treatment
of the prisoner concerned and carried out in his interest. Likewise, prisoners
of war must at all times be protected, particularly against acts of violence or
intimidation and against insults and public curiosity. Measures of reprisal
against prisoners of war are prohibited.
Prisoners of war are entitled in all circumstances to respect for their persons and their honour. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. Prisoners of
war shall retain the full civil capacity which they enjoyed at the time of their
capture. The Detaining Power may not restrict the exercise, either within or
without its own territory, of the rights such capacity confers except in so far
as the captivity requires.
The Power detaining prisoners of war shall be bound to provide free of charge for their maintenance and for the medical attention required by their state of health.
Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of
war shall be treated alike by the Detaining Power, without any adverse
distinction based on race, nationality, religious belief or political opinions,
or any other distinction founded on similar criteria.
PART III CAPTIVITY SECTION I BEGINNING OF CAPTIVITY
Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or
status. Each Party to a conflict is required to furnish the persons under its
jurisdiction who are liable to become prisoners of war, with an identity card
showing the owner's surname, first names, rank, army, regimental, personal or
serial number or equivalent information, and date of birth. The identity card
may, furthermore, bear the signature or the fingerprints, or both, of the owner,
and may bear, as well, any other information the Party to the conflict may wish
to add concerning persons belonging to its armed forces. As far as possible the
card shall measure 6.5 x 10 cm. and shall be issued in duplicate. The identity
card shall be shown by the prisoner of war upon demand, but may in no case be
taken away from him. No physical or mental torture, nor any other form of
coercion, may be inflicted on prisoners of war to secure from them information
of any kind whatever. Prisoners of war who refuse to answer may not be
threatened, insulted, or exposed to any unpleasant or disadvantageous treatment
of any kind. Prisoners of war who, owing to their physical or mental condition,
are unable to state their identity, shall be handed over to the medical service.
The identity of such prisoners shall be established by all possible means,
subject to the provisions of the preceding paragraph. The questioning of
prisoners of war shall be carried out in a language which they understand.
All effects and articles of personal use, except arms, horses,
military equipment and military documents shall remain in the possession of
prisoners of war, likewise their metal helmets and gas masks and like articles
issued for personal protection. Effects and articles used for their clothing or
feeding shall likewise remain in their possession, even if such effects and
articles belong to their regulation military equipment.
So, rather interestingly this would seem to cover the routine abuse that has been reported in Iraq. To quote from the BBC (July, 23, 2006):
The HRW report gives first-hand accounts of abuses at a detention centre at
Baghdad airport called Camp Nama, as well as a facility near Mosul airport and a
base near al-Qaim on the Syrian border. An interrogator posted at Mosul in 2004 told HRW that he and his fellow interrogators had been told by the officer in charge of their unit to use abuse techniques on some detainees. He described how they used dogs to intimidate the detainees, had them walking on their knees in the gravel and standing for extended periods with arms outstretched holding water bottles.
An interrogator at Camp Nama said the use of abuse techniques was commonplace - authorisation forms could be easily prepared for commanding officers to sign. "I never saw a sheet that wasn't signed," the soldier said. HRW gives accounts of instances where soldiers who were concerned by the abuses were thwarted from reporting it. One military police guard at the facility near Qaim, who took his concerns to an officer, was reportedly told: "You need to go ahead and drop this, sergeant."
As quoted above in the Geneva Convention an occupying force is bound to inflict: No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. Surely those who gave the orders, including members of the executive branch of our Government who initialed memos scrawling "make sure this gets done!" in the margin. Sounds like good advice for the ICC and the incoming administration.
Here are some links for more on this topic