The Limits on How POWs Can Be Portrayed - And Why Both Iraq and Embedded Journalists May Be Testing Them

By ANTHONY DWORKIN

Wednesday, Mar. 26, 2003

As with many conflicts in the age of mass communication, the war in Iraq is being fought through the media as well as on the ground. And among the images that have come out of the war, some of the most powerful have been of captured soldiers - particularly the footage of U.S. prisoners being questioned on Iraqi TV that was broadcast last weekend by the satellite channel al-Jazeera.

This footage, which showed apparently dazed and frightened soldiers being interrogated about their intentions and their military units, provoked an outcry in the United States. Secretary of Defense Donald Rumsfeld said that the treatment of the prisoners was a breach of the Geneva Conventions, and President Bush warned pointedly that Iraqi officials would be held accountable for any war crimes they committed with regard to POWs.

At the same time, photographs and video footage of Iraqi prisoners of war have also been prominent in the U.S. and British media - often recorded by photographers and film crews who are embedded with military units.

It has been argued that the publication of these latter images might also involve a violation of international humanitarian law. Accordingly, the International Committee of the Red Cross has warned both Iraq, and the U.S. and allied forces, that the Geneva Conventions place limits on how POWs can be portrayed.

The Geneva Conventions and the Filming of POWs

So what are the relevant provisions, and how do they apply to the filming of captive soldiers?

The Geneva Conventions of 1949 were drawn up in the immediate aftermath of World War II, when anger over the way that prisoners of war had suffered during the conflict was running high. Geneva Convention III, dealing with POWs, lays down an extremely detailed set of requirements covering most aspects of prisoners' lives, but its bottom line can be found in a phrase from Article 13: "Prisoners of war must at all times be humanely treated."

The Convention also has a couple of provisions that relate more precisely to the displaying of prisoners before the media. Article 13 goes on to say that prisoners must be protected against "insults and public curiosity," and Article 14 says that they are entitled in all circumstances "to respect for their persons and their honour."

Applying the Geneva Conventions' Standards

First, consider Article 13's emphasis on the protection of prisoners from "insults and "public curiosity." In theory, the phrase "public curiosity" could be taken to refer to any display of prisoners or their images. However, read in the context of the Convention's overall concern with humane treatment, it seems more plausible to think that it was intended to refer to situations where prisoners might be exposed in person to be viewed by a group of enemy civilians or soldiers - an obviously degrading and humiliating circumstance.

It might also be taken to cover situations in which photography is intended to further the humiliation of this kind of in-person display, or in which photography is done for the purpose of expressing contempt and insult.

Thus, it may not be the photography, in itself, that is the violation, but rather the photography seen in context, once one knows its circumstances and intent.

If this analysis is correct, then the best way to apply the provision under contemporary conditions is to look at the guiding spirit of the relevant articles: to ask whether prisoners of war who are being photographed, are being subjected to treatment that is humiliating, insulting, disrespectful, or dangerous.

Why the Iraqi TV Photos of POWs Violate The Geneva Conventions

According to these criteria, it seems convincing to argue that the Iraqi TV pictures of the U.S. army maintenance crew being questioned are a violation of the Geneva Conventions.

The soldiers are shown in close-up, appear disoriented and fearful, and are clearly trying to frame responses to the questions thrown at them that will avoid provoking the anger of their captors. The strong impression is of captives being put through a kind of performance under conditions of vulnerability.

For the soldiers, it appears to be a humiliating - and, in the language of Article 13, an "insult[ing]" - experience, in which they are being exploited for propaganda value, and displayed with contempt.

Clearly, the footage or photographs of Iraqi prisoners in the hands of U.S. or British troops are not directly comparable to the Iraqi television footage. These images do not appear to portray something staged for the cameras. Rather, they seem to be the straightforward factual recording of the unfolding progress of the war.

Accordingly, the intention to humiliate the prisoners seems entirely absent. The photographs do not "insult" their subjects, and do not display them simply to satisfy "public curiosity"; rather, they show them because they are part of news, and of history.

However, it is still worth considering whether these pictures might not in some cases be degrading or dangerous for the Iraqi prisoners portrayed. Remember, in addition to not exposing prisoners to "public curiosity" or "insult," photography should also, to comply with the Geneva Conventions, express respect for the prisoners' persons and honor, and more generally, represent humane treatment of the prisoners.

Under these standards, it's possible the photos of Iraqi prisoners are also a Geneva Convention violation. For one thing, the condition of being taken prisoner is arguably humiliating in itself - particularly when soldiers are injured or being forcibly restrained. Under these circumstances, you could make a case that the depiction of clearly recognizable individuals might cause them distress, and that the soldiers might feel, in particular, that their honor had been jeopardized by the display.

More significantly, identifiable images of Iraqi soldiers who are voluntarily surrendering - in effect, cooperating with the enemy - might make their families vulnerable to reprisals, or endanger the soldiers themselves after they are repatriated. That militates in favor of, at a minimum, using black boxes to ensure the soldiers are not identifiable.

State Television Versus Truly Independent Media Versus Embedded Reporters

Of course, there is another significant difference between the treatment of POWs by the two sides. Film of U.S. captives in Iraq was shot by state television, whereas the images of captured Iraqis was taken by independent media organizations.

The Geneva Conventions are only binding on states - not private groups. Thus, one might think that in these circumstances, Iraq is bound, and the independent media organizations are not.

However, the question is not so simple. "Embedded" film crews and photographers travelling within U.S. and British military units are undoubtedly subject to the influence of army commanders in their decisions about what to record and broadcast. This could place some obligation on the armies concerned to try to prevent the publication of humiliating or dangerous images of Iraqi prisoners of war.

The Problem with Photos Showing Identifiable POWs

Another extremely important factor, in deciding whether the Convention is being breached, is whether individual POWs can be clearly identified. A picture that shows a group of prisoners in a humiliating light, but where none of them can be recognized, would not seem in itself to violate the Geneva Conventions. After all, the image would not in itself cause suffering to any individual, and thus would maintain respect for particular prisoners' persons and honor, and refrain from insulting or holding up to public curiosity particular prisoners.

(Of course, the very act of putting POWs in an unnecessarily degrading situation - irrespective of whether it was seen by the outside world - would in itself be a breach of the law, but it is a separate question whether photos are a violation or simply depict one.)

Consider, for instance, photographs released by the Defense Department last year of detainees from Afghanistan being transferred to the detention facility at Guantanamo Bay in blindfolds and shackles. The images were directly released by the government, and showed the captives in a humiliating light. Yet they would not seem to be a violation of the Geneva Conventions because no individuals could be identified, due to the blindfolds and the angle from which the photographs were taken.

There is No Right of Reprisal For the POW Treatment

Finally, it's worth noting that the footage of U.S. prisoners being questioned in Iraq, even if a breach of the Geneva Conventions, would not justify a reprisal attack by the U.S. against Iraqi television.

TV stations that show propaganda during a war do not become legitimate military targets. Under the laws of war, broadcasting facilities can only be attacked if they are making a direct contribution to military operations - for instance, as part of a command-and-control system. Though Iraqi TV may have contributed to the Iraqi government's war effort with its POW photographs, the photographs still do not make a direct enough contribution to justify targeting Iraqi TV itself.


Anthony Dworkin is editor of the Crimes of War Project website, an online journal covering international law and armed conflict.

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