US ’hostage’ taking in Iraq breaches the War Crimes Act of 1996, codified at Title 18, section 1441

War criminals
New York Times, May 23, 2004:
In recent public statements, Bush administration officials have said that the Geneva Conventions were "fully applicable" in Iraq.

Newsday, May 25, 2004:
In a little-noticed development amid Iraq’s prison abuse scandal, the U.S. military is holding dozens of Iraqis as bargaining chips to put pressure on their wanted relatives to surrender, according to human rights groups. These detainees are not accused of any crimes, and experts say their detention violates the Geneva Conventions and other international laws. The practice also risks associating the United States with the tactics of countries that it has long criticized for arbitrary arrests.

"It’s clearly an abuse of the powers of arrest, to arrest one person and say that you’re going to hold him until he gives information about somebody else, especially a close relative," said John Quigley, an international law professor at Ohio State University. "Arrests are supposed to be based on suspicion that the person has committed some offense."

Indeed, holding innocent civilians hostage in order to induce their relatives to surrender is a plain violation of Articles 31, 33, and 34 of the Fourth Geneva Convention, Relative to the Protection of Civilian Persons in Time of War, signed at Geneva, August 12, 1949:

Art. 31. No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.

Art. 33. No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.

. . . .

Reprisals against protected persons and their property are prohibited.

Art. 34. The taking of hostages is prohibited.

A "protected person" under the Fourth Geneva Convention is broadly defined as follows:

Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Article 146 of the Fourth Geneva Convention requires each "High Contracting Party," including the United States, to enact legislation to punish those who commit grave breaches of the Convention. Article 147 defines "grave breaches" as including "unlawful confinement" and "taking of hostages":

Art. 146. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. . . . .

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: . . . unlawful confinement of a protected person, . . . taking of hostages . . . .

The United States, in the War Crimes Act of 1996, codified at Title 18, section 1441 of the United States Code, implements sections 146 and 147’s requirement to provide criminal penalties for grave breaches of the Fourth Geneva Convention, such as the taking of hostages:

Section 2441. War crimes

(a) Offense. - Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances. - The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition. - As used in this section the term ’’war crime’’ means any conduct -

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949 . . . .

Bottom line: every member of the United States armed forces, and every United States national, responsible for holding an Iraqi hostage in order to induce his or her relative to surrender is guilty of a grave breach of the Fourth Geneva Convention, and of 28 U.S.C. section 1441. Every such person (particularly those in positions of authority) should be prosecuted as a war criminal.

UPDATE: The Newsday story quotes "a senior military official who asked not to be named" as stating, "The coalition does not take hostages. Relatives who might have information about wanted persons are sometimes detained for questioning, and then they are released. There is no policy of holding people as bargaining chips."

Despite this bold statement by an anonymous interlocutor ("The coalition does not take hostages in violation of international law - but don’t quote me on that!"), other American military officers have been quoted by name as stating that the United States military has seized family members and used them as bargaining chips. The Chicago Tribune reported last week:

A military intelligence analyst who recently completed duty at Abu Ghraib prison in Iraq said Wednesday that the 16-year-old son of a detainee there was abused by U.S. soldiers to break his father’s resistance to interrogators.

The analyst said the teenager was stripped naked, thrown in the back of an open truck, driven around in the cold night air, splattered with mud and then presented to his father at Abu Ghraib, the prison at the center of the scandal over abuse of Iraqi detainees.

Upon seeing his frail and frightened son, the prisoner broke down and cried and told interrogators he would tell them whatever they wanted, the analyst said.

. . . .

Sgt. Samuel Provance, who maintained the 302nd Military Intelligence Battalion’s top-secret computer system at Abu Ghraib prison, gave the account of abuse of the teenager in a telephone interview from Germany, where he is now stationed. He said he also has described the incident to Army investigators.

Provance’s account of mistreatment of a prisoner’s son is consistent with concerns raised by the International Committee of the Red Cross, which had received reports that interrogators were threatening reprisals against detainees’ family members.

Provance already has been deemed a credible witness by Maj. Gen. Antonio Taguba, who included the Army sergeant in a list of witnesses whose statements he relied on to make his findings of prisoner mistreatment at Abu Ghraib.

The Washington Post reported on July 28, 2003:

Col. David Hogg, commander of the 2nd Brigade of the 4th Infantry Division, said tougher methods are being used to gather the intelligence. On Wednesday night, he said, his troops picked up the wife and daughter of an Iraqi lieutenant general. They left a note: "If you want your family released, turn yourself in." Such tactics are justified, he said, because, "It’s an intelligence operation with detainees, and these people have info." They would have been released in due course, he added later.

The tactic worked. On Friday, Hogg said, the lieutenant general appeared at the front gate of the U.S. base and surrendered.

from BeatBushBlog