Oct. 14, 2008
Law scholar argues that bribing POWs violates international law
A University of Iowa law professor argues in a new paper that trying to extract information from captured soldiers detained as prisoners of war by offering them positive inducements is illegal and a violation of the Geneva Conventions.
Tung Yin, a law professor and expert in national security law, said that such inducements are little more than bribes that violate the spirit of the Geneva Convention's protocols in how countries at war treat POWs.
"It conflicts with the key values embodied in the Geneva Convention, and it enables detaining nations to exploit the fact of confinement to induce POWs to betray their home nations," Yin wrote in his paper, "Clarifying the Geneva Convention."
While numerous instances of mistreatment of detainees in the war on terror have been documented at Abu Ghraib and Guantanamo Bay, it's unknown how often U.S. interrogators have used positive inducements to get information, Yin said. However, it has been reported that cooperative detainees at Guantanamo Bay are housed in a medium-security facility with such amenities as ice water, fans, board games and access to exercise yards.
The Geneva Conventions say nothing specifically that prohibits positive inducements to POWs, and many legal analysts take that silence to mean they are allowed. But Yin said the Conventions do suggest such a prohibition. He points to those parts of the accords that prohibit nations from using prisoners of war to perform labor that materially assists the war effort against their home countries, even if the prisoners agree to the work.
"It seems perverse therefore to allow them to volunteer potentially critical military information," he said.
Yin said his prohibition applies only to uniformed members of national armies, and so therefore doesn't apply to detained suspected members of terror groups, such as al Qaeda. The difference, he says, is that sovereign nations are entitled to the loyalty of their citizens, and anyone who essentially accepts a bribe to provide information that can be used against that person's country is violating that entitlement of citizenship.
Members of groups like al Qaeda, however, are not representing a nation and so have no duty of loyalty. Because of that, Yin said accepting a positive inducement is not violating a legal expectation of loyalty to a country.
But Yin said that positive inducements can still be used by captors as a reward for good behavior because keeping prisoners from rioting or disrupting the detention facility is not only legal, it's an expectation of a detaining nation. So long as the rewards are not also used for giving away information that will harm a prisoner's home country, a positive inducement is acceptable.
Yin's paper is forthcoming in the Boston University International Law Journal and is available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1270089.
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