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On the taking of hostages

Claude Muncey

iraqi_female_prisoner_1.jpg

January 29, 2006

On the taking of hostages

​ ​​​​I do not usually post on current politics and such, as I seldom am in the position to comment in a timely manner. By the time I work out a detailed expression of how I feel, the discussion has moved on.

This time I simply do not care. I am simply too angry about this right now. What follows is a more detailed discussion of just why I am angry, and what I am angry about.

The Story

The reports began in 2004. The Christian Science Monitor's Annia Ciezadlo wrote about Texas-born US citizen Jeanan Moayad's experience when US troops wanted to question her 66 year old geologist father:
They told me it was because he was a Baathist," she says. "They told me my father didn't do anything, but they just wanted to know information about another person."

When the troops learned her father was out of the country, says Moayad, they arrested her husband. As Moayad's mother began to cry, they promised to bring him back the next day, saying they just wanted to ask him a few questions.

For the next 18 days, Ibrahim was held at a Baghdad detention facility. On Feb. 17, says Moayad, three soldiers came to her house and gave her a letter in her husband's handwriting. After greeting her and the children with "peace and kisses," the letter says he will be sent to Abu Ghraib "until the arrival of my father-in-law."

"I'm going to be there in his place until he surrenders himself," reads the letter. "Please tell him that I am in his place and that I'll be released when he arrives here, since I am not the wanted person, as you know from all who spoke to you about my case. Please inform my father-in-law to surrender himself of his own free will, and that will make things much easier for him. They don't mistreat someone who surrenders of his own free will, but just the opposite - they only want to ask him questions."
Note, a person detained not for what they have done, but to influence the actions of someone else. There were other reports of wives of leading suspects being held to encourage their husbands to surrender.

Well those reports turn out to be true. Today it was reported that Department of Defense documents disclose that women were held in order to induce cooperation from their husbands:
In a memo written in June 2004 and released Friday, an officer with the Defense Intelligence Agency, whose name was redacted, described the arrest of a 28-year-old woman from Tamiya, northwest of Baghdad. She had three young children, including one who was nursing.
U.S. forces raided her in-laws' home, calling her husband the "primary target." Before the raid, soldiers had decided that if the woman were at the in-laws' home, they'd detain her "in order to leverage the primary target's surrender," the memo's author wrote.

"During my initial screening of the occupants at the target house, I determined that the wife could provide no actionable intelligence leading to the arrest of her husband," the author of the memo wrote. "Despite my protest, the raid team leader detained her anyway."

The woman was released two days later, the memo said.

In the 2004 e-mail exchange, what appear to be American soldiers based in northern Iraq discuss the detention of Kurdish female prisoners. The names were redacted.
In an e-mail dated June 17, 2004, a U.S. soldier wrote: "What are you guys doing to try to get the husband - have you tacked a note on the door and challenged him to come get his wife?"

A soldier wrote two days later that he was getting more information from "these gals" that could "result in getting husband."

The e-mails and the memo were among hundreds of documents that the Pentagon released under a federal court order to meet an American Civil Liberties Union request for information on detention practices.
Once again the same pattern -- one person is not available, so a relative is detained in hopes that the real target will turn themselves in.

Update: I finally found the other case I remember, the one that started this as an issue, from Saddam Aide's Family Arrested:
The detention of the relatives of Izzat Ibrahim al-Douri (search), a lifelong Saddam associate who is No. 6 on the list of most-wanted Iraqis, was an apparent attempt to pressure his surrender or gather intelligence that might lead to him. U.S. officials last week offered a $10 million reward for information leading to al-Douri's capture.
...
Troops of the U.S. 4th Infantry Division in Samarra, 70 miles north of Baghdad, detained the women in a raid that also netted another al-Douri associate, spokesman Lt. Col. William MacDonald said at the division's headquarters in Tikrit.
...
MacDonald gave no details on why the wife and daughter were seized, but American forces have frequently arrested relatives of fugitives to interrogate them on their family member's whereabouts and as a way of putting pressure on the wanted men to surrender.
Same pattern as the others.

So the question is, what's wrong with this? That will be addressed in the next post




So, what's the problem?

In the previous post, I wrote about news reports over the past couple of years that indicate a pattern of US forces in Iraq detaining relatives of key suspects in order to induce them to turn themselves in. So, what is wrong with that?

It's against the law, that's what. No, I am not a international lawyer, nor do I play one in a video game, but I became interested in the field both through grad school and by growing up a military kid, with some time overseas. And the nice part is that the documents on international humanitarian law are all on the web, and are fairly straightforward.

Conventional Wisdom

After the carnage of the Second World War, the nations of the world tried to find some way to prevent it's recurrence. Along with the creation of the United Nations, there was a recognition of the need for strengthening international law concerning the waging of war. Since 1864, there had been a succession of agreements known as the Geneva and Hague conventions, which laid out standards of treatment for the wounded, prisoners, and noncombatants. The reversal of the Swiss flag was adopted as a distinctive symbol indicating medical noncombatants -- the Red Cross. The International Committee of the Red Cross (ICRC) was formed to to monitor the implementation of these agreements.

In 1949, all of these agreements, along with other measures, were combined into the four Geneva Conventions, which provide the foundation for international humanitarian law. The four conventions:
  • Convention I: For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
  • Convention II:For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
  • Convention III: Relative to the Treatment of Prisoners of War
  • Convention IV:Relative to the Protection of Civilian Persons in Time of War
Now, these conventions cover quite a bit of territory, and include many requirements and proscription. In particular, each convention defines what are known as "grave breaches" -- the most serious offenses. Of interest in our current case are grave breaches of Convention IV on civilian persons:
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: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.(emphasis mine)
Ah, there we go. A couple of technical notes before we go farther. This convention does appear to apply here as:
  • both the US and Iraq are "high contracting parties" -- we are both signatories to the conventions
  • there was an armed conflict on the territory of one of the parties
  • the US was acting as an occupying power, unquestionably up to the departure of Paul Bremer, and arguably up to the present hour
  • the persons involved were noncombatant civilians -- they were taking no active part in hostilities, unless you count knowing a suspected combatant as taking an active part, in which case there might not be any civilians at all.
So, the convention applies, and hostage taking is a grave breach of the convention. What's the penalty for this, a strongly worded telegram from Geneva?

War Crimes

Well, how does up to life in a federal prison sound to you? Under Title 18 of the United States Code, chapter 118, section 2441, a grave breach of the convention is defined a war crime, with fines and jail time up to a life sentence attached. If somebody dies as a result, the death penalty is available.

And the US military takes this seriously, as well. (Or at least it used to.) A primary tool for training military personnel in this subject is US Army Field Manual 27-10, The Law of Land Warfare. What does it have to say?
273. Hostages
The taking of hostages is prohibited.
...
500. Conspiracy, Incitement, Attempts, and Complicity
Conspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.

501. Responsibility for Acts of Subordinates
In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.
...
506. Suppression of War Crimes
(c)Grave Breaches. "Grave breaches" of the Geneva Conventions of 1949 and other war crimes which are committed by enemy personnel or persons associated with the enemy are tried and punished by United States tribunals as violations of international law.

If committed by persons subject to United States military law, these "grave breaches" constitute acts punishable under the Uniform Code of Military Justice. Moreover, most of the acts designated as "grave breaches" are, if committed within the United States, violations of domestic law over which the civil courts can exercise jurisdiction.
So let's review:
  • as an occupying power, the US is subject to Geneva Convention IV;
  • that convention defines holding civilians hostage as a grave breach;
  • US civil and military law defines such grave breaches as war crimes, punishable by up to life in prison -- military law extends responsibility to commanders.
The question for the next installment is, what is a hostage?




What is a hostage, anyway?

In the previous two posts on this topic, I reviewed current reports of US troops taking hostages in Iraq, and that international, US civil and US military law prohibit the taking of hostages. The question that comes up is, what is a hostage, anyway?

The basic definition is "a prisoner who is held by one party to insure that another party will meet specified terms." (Princeton WordNet) Simple enough, but for many of us, we tend to add some enhancements to this, thinking a hostage has to be under some kind of mortal threat, a gun to the head, for example. But this is not necessary.

In 1979, the International Convention Against the Taking of Hostages was agreed to, with the US as a signatory. It isn't very long, with the section relevant for us right at the start:
ARTICLE 1
  1. Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the "hostage") in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages ("hostage-taking") within the meaning of this Convention.
  2. Any person who:
    1. attempts to commit an act of hostage-taking, or
    2. participates as an accomplice of anyone who commits or attempts to commit an act of hostage-taking likewise commits an offence for the purposes of this Convention.
(again, emphasis mine)
This definition is applicable under US law -- it is specifically recognized in a variety of US statues, and in court cases such as the 2003 case Simpson vs. Lybia as the standard applicable in military and international cases.

Consider a few things about this definition.
  • It is only necessary to detain, and threaten to continue to detain someone. A threat of injury or death, to the hostage or someone else, is not necessary.
  • It is necessary that the intent of the detention is to influence a third party. It is not necessary for it to be the only intent.
  • The threat can either be explicit or implicit.
So, let's take another look at the cases from Iraq. In none of the cases is there any kind of threat of physical harm, but the extent or duration of detention is specifically kept uncertain -- these persons can be held until some condition is satisfied. In more than one case, the connection between the detention of the hostage, and the need to apprehend the hostage's relative has been explicit and specific. In one case, where we have emails released under court order, that connection was clearly present before the hostage was detained.

Is this proof? Well, we are working from press reports and should always remember that. These reports by themselves would not be enough to convict anyone. But, in my opinion, they are more than enough to provide cause for a serious investigation. There is no evidence of such an investigation, but there is the stong appearance of what may be a pattern of continuing behavior. That would indicate something more serious than just some junior officer exceeding his authority.

Well, besides irritating international lawyers and some bloggers, what is wrong, what is immoral about this? That's the topic of the next post.


:: Article nr. 20082 sent on 30-jan-2006 05:39 ECT

www.uruknet.info?p=20082

Link: seminaverbi.blogspot.com/2006/01/on-taking-of-hostages.html



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