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. …