What Happens When GI Jane Is Captured?
Women Prisoners of War and the Geneva Conventions

Just over one week ago, American television viewers saw disturbing images of American soldiers who had become prisoners of war (POWs) in Iraq. Among those taken captive was Specialist Shoshana Johnson, an Army cook - America's first female POW in the Iraqi conflict. Meanwhile, two other women were missing in action - Privates First Class Jessica Lynch and Lori Piestewa. (Lynch was just rescued yesterday.)

Seeing Shoshana Johnson - thirty years old, and the single mother of a two-year old child - held captive in Iraq bothered me more than I would have imagined. Like the male soldiers held with her, she faces a ruthless regime. Unlike them, however, she may also be the target of misogynistic treatment, and a potential victim of sexual assault.

Anthony Dworkin recently discussed, in a column for this site, some of the protections the Geneva Conventions offer all POWs. But what, if anything, in the Geneva Conventions protects women POWs, in particular?

Before addressing that question, it's worth examining the history of women in the U.S. military in recent years, and of women as POWs, to provide some context for the Conventions' guarantees.

Women's Role in the U.S. Military Now and In the Past

Overall, more than 200,000 women currently serve in the armed forces. These women make up 15 percent of both the enlisted ranks and the officer corps, 6 percent of the Marines, and 19 percent of the Air Force.

These women serve in a wide variety of positions. In part, that is because in 1994, during the Clinton Administration, the Pentagon discarded the "Risk Rule," and authorized women to serve in any military post other than in frontline infantry, Special Forces, or armor or artillery units.

As a result, women reportedly now are allowed to hold 52 percent of active-duty positions in the Marines - about a twofold increase since the 1994 rule change. Women in the Army can hold 70 percent of such positions. And women in the Air Force and Navy can perform in 99 percent of such positions. For example, women in the Navy can now serve on ships, though not on submarines. Women in the Air Force can now fly combat missions.

American women have been in combat ever since Margaret Corbin replaced her fallen husband behind cannon during the Revolution. But this war promises to involve more women in combat than ever before.

Meanwhile, due to the nature of modern warfare, and the war on Iraq in particular, a soldier can be in serious jeopardy whether or not he or she is technically in a combat unit. There is no longer a clear "front" line.

Thus, support units, whose job is maintenance or supply, can find themselves in grave danger. For instance, Shoshana Johnson and her fellow POWs were a maintenance crew in a convoy that got ambushed.

Women as POWs Throughout U.S. History

Long before the 1994 rule change, there were women POWs. During the Civil War, for example, Dr. Mary Walker was imprisoned for four months by the Confederacy, accused spying for the Union Army. (Doctor Walker is the only woman to receive the Congressional Medal of Honor.)

During World War II, more than 80 military nurses, including 67 from the Army and 16 from the Navy, spent three years as prisoners of the Japanese. Many were captured when Corregidor fell in 1942. The nurses were subsequently transported to the Santo Tomas Internment camp in Manila in the Philippines - which was not liberated until February of 1945. Five Navy nurses were captured on Guam and interned in a military prison in Japan.

Meanwhile, during the 1991 Gulf War, there were two American female POWs: an Army Flight Surgeon, Major Rhonda Cornum, and an Army Transportation Specialist, Melissa Rathbun-Nealy. Cornum was subjected to "sexual indecencies" within hours of her capture. (She was released eight days later, but said nothing in public about the sexual assault for more than a year.)

And women, like men, have been casualties of war. According to various reports, there have also been nearly 1,000 women killed in action since the Spanish American War. Women casualties include including two aboard the USS Cole when it was attacked by terrorists in 2000, sixteen in Desert Storm, and eight in Vietnam.

Women and the Laws of War

The Geneva Conventions of 1949 govern the treatment of soldiers and civilians during armed conflicts. The Geneva Convention III relates to the Treatment of Prisoners of War. The August 1949 treaties, whose signatories include the United States and Iraq, took effect on October 21, 1950, after the Nuremberg war crimes trials in Germany. They continue to apply now.

With respect to POWs generally, Article 13 of Geneva Convention III requires that they "must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention." And Article 3 (common to all four Conventions) prohibits "violence to the life, health, or physical or mental well-being of persons" including torture of all kinds, whether physical or mental. Such acts of violence "remain prohibited at any time and in any place. . ." with respect to persons being detained.

The Geneva Convention III says relatively little about women - primarily because, at the time it was drafted, women were not involved on the battlefield to the same extent as men.

It does provide some privacy guarantees for women, however. Article 25 states that women prisoners must be housed separately from the men. And Article 29, which deals with hygiene and medical attention states that "[i]n any camps in which women prisoners of war are accommodated, separate conveniences shall be provided for them."

Meanwhile, Article 14 provides an equality guarantee of sorts for women POWs. It says that "women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favorable as that granted to men."

As with domestic laws, there is a question as to how far this equality guarantee requires additional safeguards for women, beyond what men are entitled to. Some commentators argue that it does, for women have specific needs arising from gender differences, honor and modesty, and pregnancy and childbirth.

Other specific protections are also included. Women prisoners who are being disciplined are required to be confined in separate quarters under the immediate supervision of women - apparently to prevent any risk that an isolated women might be subject to sexual assault or mistreatment.

In addition, all women POWs who are pregnant or mothers with infants and small children are to be conveyed and accommodated in a neutral country. Shoshana Johnson, as the mother of a 2-year old toddler, would seem to qualify.

And more generally, under international humanitarian law, the ill-treatment of persons detained in relation to armed conflict is prohibited.

Meanwhile, civilians taken captive are meant to be afforded similar protections pursuant to Geneva Convention IV. Women are to be protected "against rape, enforced prostitution or any form of indecent assault." Additional Protocol I to the Geneva Conventions, relating to civilians, notes that "women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault." One need only remember the conflict in the former Yugoslavia, however, to see that rape has often been used against civilian women during armed conflict. Finally, with respect to relief shipments for civilians, Convention IV notes that "expectant mothers, maternity cases and nursing mothers" are to be given priority.

Potential Remedies: Red Cross Factfinders and War Crimes Tribunals

Iraq has claimed publicly that it is adhering to the Conventions. But the recent video footage of American POWs has given others a different impression.

In addition, past history leads to reasonable fears that woman POWs will be mistreated by Iraq in ways particular to their gender. Consider, for instance, the sexual assault suffered by Major Cornum. Will there be any recourse if women are, in fact harmed or mistreated?

The answer is: Perhaps during the war, and certainly after the war.

The International Committee of the Red Cross (ICRC) - which drafted the original treaties - serves as a fact finder with respect to possible violations. During war, the ICRC attempts to protect military prisoners of war, civilians caught in war zones, and wounded or sick service members.

An ICRC delegate who witnesses disturbing violations at a jail, hospital, or other facility has the duty to report it to the ICRC, who advise the victim what to do. Thus, if U.S. POWs are mistreated in Iraq, and the Red Cross is let in to see them, and they feel comfortable reporting their mistreatment, there may be some recourse for them.

But all of these contingencies may not actually become reality - and remedies may have to wait until the war's end. At that point, a special war crimes tribunal may well be created in order to prosecute individuals for "grave breaches" of international humanitarian law.

Not all violations of the law of war, indeed not all violations of the Geneva Convention, are grave breaches. "Grave breaches" are defined in the Geneva Convention III to include intentional killing, torture, or inhumane treatment.

Today, such breaches would include sexual violence against women POWs. Such violence, under international law, is criminal.

Both the Red Cross and the international community - through war crimes tribunals - should insist on strict adherence to Geneva Convention III, for men and women prisoners of war alike, and equally.

Unless women prisoners are truly protected equally - meaning that they are protected when it comes to gender-specific crimes and with respect to crimes with gender-specific additional impact - the equality of women in the military will itself be imperiled.

Sex Crimes In War May Also Be Breaches of International Humanitarian Law

As the ICRC has previously stated, "although both men and women are subject to sexual assault, a distinction needs to be drawn between them. Sexual torture as such, particularly during interrogation, with its full spectrum of humiliation and violence can, and often does, culminate in the rape of the victim, and is more common with women prisoners. In male prisoners, direct violence to sexual organs is more common during this same phase."

To note this is not in any way to minimize the terrible things that may happen to male POWs. But it is to say that women do face a special risk: the risk of rape, and of being pregnant as a result of rape.

To cope with a pregnancy as a result of rape is terrible enough, and is made all the worse by being in detention. Women may also be forced to terminate their ongoing pregnancies against their will.

Other abuses inflicted on POWs, while not suffered solely by women, could be worse for women than men. They might include beatings, strip searches by men, intimate and abusive medical examinations or body searches, and sexual or gender-based humiliation (such as non-provision of sanitary protection).

Under international law, rape, sexual assault, sexual slavery, forced prostitution, forced sterilization, forced abortion, and forced pregnancy may all qualify as crimes.

Rape as A War Crime, and A Crime Against Humanity

The crime of rape, in particular, has long existed under customary international law. Some treaties have mentioned rape specifically, whereas other treaties and international conventions have made reference to rape as a crime against humanity when directed against a civilian population.

The nineteenth century Leiber Code, for example, listed rape as a specific offense, and made it a capital offense. Later, World War II prosecutions, and the Geneva Conventions, reinforced the prohibitions on rape and other sexual violence, although the focus was on crimes of sexual violence against civilian populations.

Some evidence of sexual violence was presented before the International Military Tribunals, after World War II. Most notably, in the judgments of the International Military Tribunal for the Far East, rape was first specifically referenced. Allied Control Council Law No. 10, which governed the prosecution of defendants at Nuremberg, listed rape as one of the enumerated acts constituting a crime against humanity.

In the Tokyo war crimes trials, acts of sexual violence and rape were not placed at a level that would allow them to stand alone. The Tribunal presented evidence relating to sexual atrocities committed upon women in places such as Nanking, Borneo, the Philippines, and French Indochina. Rape and acts of sexual violence were categorized as crimes against humanity because they amounted to inhumane treatment.

Today, the prohibition against rape and sexual violence in armed conflict is even stronger. In 1993 and 1994, rape was specifically codified as a recognizable and independent crime within the statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR).

In addition, the ICTY and ICTR cases have also reinforced the legal basis for arguing that rape and sexual violence are both individual crimes against humanity, and violations of the laws and customs of war.

Finally, the new statute of the International Criminal Court also recognizes rape as crime against humanity when it occurs in the context of armed conflict.

I hope that all of the POWs are treated humanely, and come home soon. And I hope Shoshana Johnson is transported to a neutral country - as she is entitled to be, as the mother of an infant - if she continues to be held.

To ensure that these things happens, it is also important for the international community to make clear what obligations Iraq has with respect to all POWs, and the special obligations it bears to female POWs in particular.