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Rules of Engagement II: The Use of Courts-Martial for Prisoners of War

Earlier this year I was asked to write an overview of the Military Justice System for Passages which I enthusiastically complied. After the article was published I received an overwhelming response to the article, and again I was asked to write an additional article on the same subject. Therefore I am writing a two part addendum to my original article, part II in this issue and III to run in the next.
During times of war and hostilities between countries and their respective armies often result in the capture of enemy forces. These captured enemy military members are known as Prisoners of War (POW). Unlike a civilian prisoner who has been convicted of a crime(s), POWs are not criminals but captured enemy forces. Therefore, POWs are afforded a certain status which will be explained further.
In ancient times, combatting armies would kill most of the enemy and there would be few surviving enemy forces. However, for those who did survive, the conquering army/country would enslave the captured soldiers as the spoils of war. Life of an enslaved soldier would often be greater in misery than if killed by the war itself.

Over the evolution of the history of war, the treatment of prisoners have been a topic that was dealt with on various occasions. During the American Civil War, the treatment of prisoners was nothing short of deplorable by with the North and South. Starvation, illness, massive injuries were the norm in the treatment of prisoners of war by both sides. The North considered the prisoners as traitors deserving of harsh punishment, and the South considered their prisoners as aggressors deserving of abuse and mistreatment.

Then at the turn of the 20th century, there was a move to create rules on the treatment of prisoners and, further, when punishment was warranted, a structured justice system to appropriately meter out that punishment. The Hague and Geneva Conventions (or treaties) were drafted in order to establish rules on the fair treatment of POWs which speaks to the issue of outlawing the torture of prisoners and court-martialling prisoners in lieu of physically punishing those POWs.

The Hague and Geneva conventions were put to the test then during the 20th century during World Wars I & II, the Korean War, Vietnam War as well as other armed conflicts various countries found themselves involved with from time to time. Unfortunately, not all countries were signatories to the conventions and therefore did not follow the rules the conventions advocate. There was no greater example of this mistreatment than by the empire of Japan, who did not sign either convention, during World War II. The movie, Bridge on the River Kwai, is a fictional story of the treatment of allied prisoners by the Japanese where the allied officers refused to perform labor as this is a violation of the Geneva Convention. This leads to the Japanese captors to brutally punish these officers who refuse to work on the bridge. Because Japan was not a signatory to the conventions, a point the Japanese captors were keenly aware of, the prisoners were not afforded court-martial trials for their alleged crimes.
Holding POWs for their crimes during times of war or armed conflict was exemplified during the Trials at Nuremburg. Here 24 top level Nazi party officials and members of the German military were charged with war crimes, crimes against humanity, and military tribunals were used to prosecute them for those crimes. The Allied countries participated in the prosecution and judging of the defendants which lasted over 1 year and ended in a majority of convictions and death sentences.

During the Nuremburg Trials, defense attorneys used the “I was ordered to….” defense which posed the question, “When a government orders their military to perform acts considered violations of international law, can then the defendants use I was ordered to perform those acts as a defense?” The answer was clear, no. While soldiers are trained to follow the orders of superiors, no one can be ordered to commit a crime. Crimes against humanity and genocide cannot be defended even when their government demands such horrible acts.

The World War II tribunals lead to major revisions of both the Hague and Geneva Conventions during the late 1940’s. These revisions embodied the lessons learned from the Nuremburg Trials in an effort that such horrible acts would never again be perpetrated.

During the Vietnam War, court-martials were used to prosecute military member of North Vietnam for crimes committed against U.S. forces. During these trials, the defense of military necessity was used to defend those accused of torturing and killing prisoners. The defense of military necessity was not recognized in prosecutions of Confederate captors for mistreatment of Civil War prisoners, and equally was not recognized during those prosecutions of North Vietnamese captors who tortured our POWs.
In other words, just because killing prisoners may be the quickest way and militarily necessary in dealing with those prisoners, that is not a recognized defense when charged with those killings and tortures.
Finally, we currently see military tribunals and court-martials are being used for the detainees held in Guantanamo, Cuba. Although those detainees are not strictly considered POWs as they are not members of a recognized country’s military, for purposes of trying these detainees, the United States is using the court-martial as a vehicle to prosecute them for their crimes against the United States.

Those detainees are afforded the rights and privileges found in the Hague and Geneva Conventions. Therefore, they get an appointed defense attorney who has the power of subpoena to order the appearance of witnesses and to fully cross examine all witnesses against the detainee. The lingering question for those detainees and the United States government is how long can a detainee be held without formal charges being brought and a court-martial being convened to prosecute those charges. Because the detainees do not strictly fall under the Geneva Conventions due to their status of not being part of a particular country’s military, there is no clear answer to this question. It appears that the administration is content to allow these military tribunals to convene on an ad hoc basis.

As we can see through the evolution of the Conventions and the application of the military tribunal or court-martial system to the issue of prisoners of war and the prosecution of those prisoners, the law in this area continues to evolve in an effort to provide fairness when punishing prisoners of war.

Published Articles in: Friendly Passages, November/December 2012
Article Written By:

Hugh J. Eighmie, II
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