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Crimes of War Project
Confronting Iraq Discussion Transcripts
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War in Iraq
With Roy Gutman
President and Founder of the Crimes of War Project

Wednesday, March 26, 2003; 11 a.m. ET

On Sunday, the images of five U.S. Army POW's and several dead soldiers were broadcast throughout the world. President Bush demanded that Iraq treat the prisoners "humanely," and Defense Secretary Donald Rumsfeld accused the Iraqis of trying to use the capture for propaganda purposes, in violation of international laws of war on the treatment of prisoners.

What are war crimes? According to the Geneva Convention, how should prisoners of war be treated? Is Iraq or the United States in obvious violation of the law?

Roy Gutman, President and founder of the Crimes of Project at American University, was online to discuss war crimes, the rights of POWs and the statutes laid out in the Geneva Convention.

The transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

Roy Gutman: Good morning. I'm Roy Gutman, currently a senior fellow at the US Institute of Peace and a Newsweek correspondent. Over the past decade, since reporting the series of wars in the Balkans, I have devoted effort and attention to understanding the laws of war. Essayist David Rieff and I co-edited "Crimes of War: What the Public Should Know," which was published by WW Norton, and is now out in eight languages, including as of this month, Arabic. It is an illustrated guide to what should not happen in war, using real examples from wars past, written by leading journalists, and with legal advice from the scholars at the American University's Washington College of Law. This led to a small non-profit group called the Crimes of War Education Project at American University. And it led to a web site, www.crimesofwar.org, which is up and running and provides analysis of current wars and war crimes, including the current war in Iraq. The idea of the book and web site is that the laws of war (also known as international humanitarian law) should not be the exclusive province of the generals and their lawyers; it is public law, and the public should be informed about the law -- and insist that it be upheld and respected. With that introduction, I'm ready for your questions.

Glenmont, Md.: From what you have seen on television, is the treatment of U.S. POWs a war crime?

Roy Gutman: From what I have seen, namely the public interrogation of US POW's, and the display of the corpses of those killed in action, Iraq has violated the Third Geneva Convention which covers the treatment of prisoners of war. The technical term is to "commit a grave breach," but in the US military, this translates into "war crime." If, as has been reported, Iraqi forces have executed captured or surrendered prisoners, each would constitute an additional war crime. The Convention prohibits taking any action against a POW that is intended to humiliate or degrade their dignity. At the same time, however, there is a question on whether US television and still photographers who photograph captured Iraqi soldiers, are also violating the Convention. My understanding, from consulting the legal experts, is that factual reporting by reporters who happen to be on the scene is not the same as the intentional act by a State of interrogating a detainee, filming it, and then showing it on State television. However, U.S. reporters should bear in mind that showing a surrendered Iraqi prisoner in a way that he can be identified may cause all sorts of problems for his family, as the Iraqi authorities may decide to exact retribution. So it is wrong and potentially a violation to film close up. Finally, I should mention that while the Third Convention prohibits making a display of prisoners, in a pragmatic sense, many US military officers are relieved when US detainees are shown to be in good condition and health. So they might not, in the event of future war crimes trials, press charges in every instance.

Oxford, Ohio: Mr. Gutman, I have two questions:

Are the prisoners in Guantanamo Bay treated according to the Geneva statutes? And where are the Iraqi prisoners of war being held?

Roy Gutman: Your question on Guantanamo points to an extremely troubling aspect of the US attitude toward international law during the war in Afghanistan. In the case of both al Qaeda members, and Taliban fighters, the administration unilaterally ruled that they will not be given prisoner-of-war status. It dispensed with the mechanisms provided under the Conventions for determining if someone is a lawful combatant, and simply ruled that no one was. I know from an extensively researched report in Newsweek (early in July last year) that the US government is detaining at least a half dozen Kuwaitis who were not combatants, and were not arrested anywhere near the scene of the war, and in fact had what turned out, by our research, to be a credible alibi for being in Afghanistan at the time of 9/11. But they have no process by which they can present their case, and they are languishing now in Guantanamo. Since the US government does not accept the applicability of the Geneva Conventions, nor of the US criminal code, nor human rights law, nor even Cuban law, they are sitting there with no protection whatsoever. Legal experts the world over, including in this country, find this unacceptable.
On your question about where the Iraqi prisoners are being held, in a rapidly moving situation as is now the case in Iraq, the attacking force has to make provision for prisoners of war. This means setting up camps or at least temporary quarters. Their precise location has not been made public. I understand that the International Red Cross, which under the Geneva Conventions, is to be given access to prisoners, has not in fact yet visited the US-held detainees. But an important reason is that they are located in areas that are extremely difficult to reach due to continuing combat.

Laramie, Wyo.: It seems like the administration is being a little two-faced about crimes of war. They insist on rights for American prisoners, but say that Taliban prisoners and Al Quada (sp?) prisoners have no specific rights -- even to the extent of allowing partner countries known to use torture (such as Syria) to question these prisoners.

What's your take on this? Should the Taliban or Al Quada prisoners be given the same rights as American or Iraqi POWs?


Roy Gutman: As a citizen I have to agree with you: the same law, the same rules, the same principles, that we cite to cover our own soldiers must also apply to those whom we detain in this conflict, in Afghanistan, or anywhere else. The administration seemed rather cavalier in late 2001 when they announced that the Geneva Conventions would not apply to those whom US forces detained in Afghanistan. Yet on the whole I think we should welcome the fact President Bush and Mr. Rumsfeld now cite those same Conventions in order to provide protection for captured US soldiers in Iraqi hands. This discrepancy allows members of the public, politicians, editorial writers (see today's New York Times) and any other citizen to encourage the administration to apply the law more consistently.
On the specific issue of giving Qaeda and Taliban prisoners the same rights as US prisoners: I think it should depend on whether they were operating in a combat role when captured -- I believe this would apply to most Taliban, and possibly a good number of Qaeda -- and second, whether they are suspected to have committed a war crime. Both of these aspects of their status and background can be determined by a properly constituted commission, and the model is laid out in the Third Geneva Convention. But of course, there are always variants that could be organized. The mystery is that to my knowledge, not a one of the Guantanamo detainees has been charged with a war crime; and to date, no commission has been constituted to determine their status.
As for turning over detainees to other countries which practice methods of torture as part of their interrogations -- well, it is a violation of the Torture Convention, to which the United States is a party. And there are serious moral questions whether the United States, which stands for the rule of law, should be breaking it or encouraging others to.

Austin, Tex.: Isn't the distinction between a POW photograph taken and distributed by state media and one taken by a private news organization with the apparent cooperation (or at least acquiescence) of military authorities a pretty tenuous one?

And a more general question: how do you personally reconcile yourself to the fact that who is/isn't tried and punished for war crimes basically depends on who wins the war? It seems that these judgments, like history, are written by the winners.

Roy Gutman: I think I've answered your first question, but will clarify my response. I think both the international news media and the military authorities responsible for their embedding should be fully aware that closely photographed images of surrendered Iraqi prisoners can cause unintended and unforeseeable problems to their families, and possibly, when they are released to the prisoners themselves. I think the violation is inadvertent and at the moment technical, unless it is repeated, but it is a rather different situation from a State interrogating detainees under duress and showing images on State television.
Now to your more general question. Until the 1990s, for most of the past century, there was no way to implement the laws of war except where a country conquered another. The Nuremberg Tribunals might be seen as an example of victor's justice. Yet I think, and I believe most Germans do nowadays, that those Tribunals were fairly and transparently run and actually did provide a credible record of terrible crimes which is now accepted as the actual history. In the 1990s after the genocides in Bosnia and Rwanda, the UN set up two international tribunals, and they are doing a highly creditable job I think in uncovering the truth, putting the principal culprits on trial, and doing a measure of justice. The UN has now set up (with the Bush administration fighting against it) a permanent international criminal tribunal. It could do a lot of good to ensure that war crimes do not go forgotten.
But while Tribunals can make a difference, remember that it takes three to five years for a case to come before them. What we are seeing right now in the war in Iraq is possibly another way of ensuring that the law is respected: the spotlight of media attention. Responding to the Bush administration's charges that Iraq was violating the Geneva Conventions, the Iraq government has asserted at the highest level that it will observe those Conventions. Whether they do remains to be seen, but recall in 1991, they never allowed the International Red Cross access to American POWs, never published the full list of those held, put some of them on display, and tortured a number of them. So what has happened is that the Iraqis are being put on the spot, and will remain there, because reporters will continue to question them about observing the Conventions. This is all by way of saying that I believe the spotlight of public attention can play an important role in reminding parties to the Geneva Conventions that they are expected to uphold them in all circumstances.

Dulles, Va.: Do the Iraqis accept the Geneva Convention as a basis for their actions or is this a US-Eurpoean value system that our enemy does not believe?

Roy Gutman: The Iraqis are a party to the Geneva Conventions (I believe they ratified them in the mid-1950s). Indeed nearly every country on Earth is a party. As to whether they believe in the rules they have agreed to, I am not sure that is the pertinent question. The real question is why do they violate the rules they agree to? By my experience, those who violate the conventions (and our book, Crimes of War, has many, many examples) on the whole do so because they do not have the force to finish the job and take what I would call criminal "short cuts." For example, using human shields, which colleagues in the field report Iraq is doing, is a way of trying to put the blame on the US and British forces for the killing of civilians in what would be a completely legal military act -- killing the Iraqis forces firing from behind the human shields. Clearly the Iraq forces are doing this because they don't have the weapons, strategy, or ability to take on the allied forces directly. Nevertheless it is a crime, and they surely know that.

Washington, D.C.: There have been arguments made that the US has violated international law (the Nuremberg Principles, the UN Charter, international legal precedent) in starting this war. What is your analysis of that? What are the chances of a legal process actually being engaged to deal with these allegations?

Roy Gutman: Under the UN charter, States are not free to go to war except in their own self-defense; instead the world community agreed to the principle of collective security. In the case of Iraq, the administration can argue -- and experts across the political spectrum accept -- that there is sufficient authority under previous Security Council resolutions to use force. Whether it is politically wise to do that without explicit Security Council resolutions is an entirely different matter. On the whole, attempts to address a war as a matter of legality fail. Going to war is a political act, for which a wise politician will, however, seek the maximum legal cover. This is why so many US allies are not supporting the US in Iraq: they insisted on a prior and explicit approval by the UN Security Council. In terms of the fallout for the US-led NATO alliance, and practically every other institution of international security, it is not just militarily unfortunate in the short term impact on the conduct of the war President Bush abandoned that effort (I am thinking of Turkey's refusal to give base access) but it could cause significant damage to long term US interests.

Wheaton, Md.: Doesn't it seem foolish for terrorist states, such as Iraq to accuse us of war crimes when they're faking surrenders and dressing as U.S. marines and killing their own people?

Roy Gutman: If Iraqi soldiers are dressing as Marines and killing their own people, it is, to say the least, a war crime. One can only hope that it will be identified as such, the culprits located, and that they are tried for these crimes. One aspect of the crime, incidentally, is "Treachery," and you can read a full account of Treachery, as well as "Perfidy" in our book Crimes of War. The book is posted at the www.crimesofwar.org web site.

Silver Spring, Md.: Hasn't the U.S. recently said that it is not subject to rulings from a new international war crimes court set up at The Hague?

How far would the U.S. get in prosecuting Iraqis for war crimes if that is its position?

Roy Gutman: It is quite unfortunate, for the purposes of conducting war crimes proceedings, that the administration has campaigned so vigorously against the new ICC, as that body would be perfectly set up to conduct trials. However there are alternatives, and I understand three are under consideration by the administration. One is an ad hoc international tribunal such as the Hague Tribunal for the former Yugoslavia, and the Arush Tribunal for Rwanda -- if the UN Security Council is willing to give its imprimatur to creating such a body. A second is a US-British-Australian military commission similar to the Nuremberg Tribunal. And a third is an Iraqi tribunal, perhaps with international participation, similar to the Tribunal now up and running in Sierra Leone. One way or another, it looks like a Tribunal will be set up, and I think that in the interests of the future of humanitarian law, even if it is not at the ICC, holding open, transparent, well run trials will be all to the good.

Greenbelt, Md.: How do you feel about the war?

Roy Gutman: I think the continuation of the Saddam Hussein regime was incompatible with the long term interests of a stable Middle East region, but I am not certain that war at this time was the only way to bring about his removal. What is clear is that the decision to start war at this time, due chiefly, it seems to the fact that forces had mobilized in the region, is going to cause considerable collateral damage to our NATO alliance, which I consider the bedrock of international security, to institutions like the UN and the European Union, which are vital for a stable, prosperous world, and to US world leadership in general.

Roy Gutman: Thank you, members of the cyber-audience. I appreciated your questions, and hope the answers will be useful as you watch the events unfold. It is possible that this war will see more attention to international humanitarian law than any before it. In any case, public interest in the laws of war and public insistence that violations be identified and punished, will make an enormous difference in the relevance and reality of those laws.

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