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Prisoners of War, Civilians and Diplomats in the Gulf Crisis

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
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Extract

Out of the long catalog of international law issues pertaining to prisoners of war, civilians and diplomats currently affected by the Persian Gulf crisis, I have selected for brief discussion a few that merit special attention.

Type
Agora: The Gulf Crisis in International and Foreign Relations Law
Information
American Journal of International Law , Volume 85 , Issue 1 , January 1991 , pp. 104 - 109
Copyright
Copyright © American Society of International Law 1991

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References

1 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, Art. 2, 6 UST 3114, TIAS No. 3362, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, Art. 2, 6 UST 3217, TIAS No. 3363, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 2, 6 UST 3316, TIAS No. 3364, 75 UNTS 135 [hereinafter Geneva Convention No. Ill]; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 2, 6 UST 3516, TIAS No. 3365, 75 UNTS 287 [hereinafter Geneva Convention No. IV]. Iraq and Kuwait are both parties to the Conventions.

2 Geneva Convention No. Ill, supra note 1, Art. 4.

3 Id., Arts. 12, 70, 122–25.

4 Id., Art. 70.

5 Id., Art. 71.

6 Id., Art. 72.

7 Id., Art. 10.

8 (Geneva) Convention Relative to the Treatment of Prisoners of War, opened for signature July 27, 1929, 47 Stat. 2021 (pt. 2), TS No. 846, 2 Bevans 932.

9 J.-C. Favez, Une Mission impossible? 213–15 (1988).

10 Geneva Convention No. IV, supra note 1, Art. 4. See also Meron, Protected Persons under the Fourth Geneva Convention, in The Future of Human Rights in a Changing World, Essays in Honour of Torkel Opsahl (A. Eide ed., forthcoming).

11 See, e.g., SC Res. 666 (Sept. 13,” 1990), 670 (Sept. 25, 1990), 674 (Oct. 29, 1990).

12 N.Y. Times, Sept. 9,1990, §1, at 13, col. 1. See also ICRC Press Release No. 1657 (Dec. 14, 1990).

13 Geneva Convention No. IV, supra note 1.

14 SC Res. 662 (Aug. 9, 1990). See also SC Res. 664 (Aug. 18, 1990) and 670, supra note 11.

15 SC Res. 674, supra note 11, fifth preambular paragraph.

16 Geneva Convention No. IV, supra note 1, Art. 147.

17 See SC Res. 670 and 674, supra note 11, third preambular paragraphs.

18 Geneva Convention No. IV, supra note 1, Art. 146.

19 id.

20 The ICRC Commentary on Article 146(2) of Geneva Convention No. IV states that “this paragraph does not exclude handing over the accused to an international criminal court whose competence has been recognized by the Contracting Parties. On that point, the Diplomatic Conference specially wished to reserve the future position and not to raise obstacles to the progress of international law.” Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 593 (O. Uhler & H. Coursier eds. 1958) (footnote omitted) [hereinafter Commentary].

21 SC Res. 674, supra note 11, para. 2.

22 Compare Geneva Convention No. IV, supra note 1, Art. 147, with Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (Nuremberg Charter), Aug. 8, 1945, Art. 6(b), 59 Stat. 1544, 82 UNTS 279. See also United States v. von Leeb (“The High Command Case”), 11 Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, at 462 (1948); T. Meron, Human Rights and Humanitarian Norms as Customary Law 39–40 (1989).

23 SC Res. 674, supra note 11, para. 8.

24 Geneva Convention No. IV, supra note 1, Art. 4. See also Commentary, supra note 20, at 46. U.S. nationals in Iraq benefit from part II of Geneva Convention No. IV, which “cover[s] the whole of the populations of the countries in conflict,” whatever their nationality.

25 Commentary, supra note 20, at 46, 49.

26 Geneva Convention No. IV, supra note 1, Art. 2. See also Commentary, supra note 20, at 20–21.

27 Dec. 16, 1966, 999 UNTS 171.

28 On the applicability ratione loci of the Covenant, see T. Meron, Human Rights Law-Making in the United Nations 106–09 (1986).

29 Geneva Convention No. IV, supra note 1, Art. 28. See also Art. 34. The prohibition on the use of civilians to shield military objectives from attack is stated also in the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Art. 51(7), opened for signature Dec. 12, 1977, 1125 UNTS 3. Iraq is not a party to this Protocol.

30 Geneva Convention No. IV, supra note 1, Art. 83. See also Arts. 35, 41, 42.

31 See supra text at note 25.

32 SC Res. 664, supra note 14, para. 2.

33 Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989). For discussion and analysis of the case, see Lillich, The Soering Case, infra p. 128.

34 Opened for signature Nov. 4, 1950, 213 UNTS 221.

35 Information provided by the UN Secretariat (Nov. 23, 1990).

36 Political Covenant, supra note 27, Art. 4.

37 See, e.g., Transcript of the President’s [George Bush] Address to Joint Session of Congress, N.Y. Times, Sept. 12, 1990, at A20, col. 2.

38 See SC Res. 661 (Aug. 6, 1990), paras. 3(c), 4, allowing for the importation of supplies “intended strictly for medical purposes, and, in humanitarian circumstances, [of] foodstuffs.” This language tracks that of Security Council Resolution 253 (1968), Art. 3(c), which exempted from sanctions against Rhodesia “supplies intended strictly for medical purposes … and, in special humanitarian circumstances, foodstuffs.” SC Res. 253 (May 29, 1968), reprinted in 3 A. Lowenfeld, Trade Control for Political Ends, at DS-604 (1983). See also [U.S.] Exec. Order No. 11,419, sec. 1(d), 33 Fed. Reg. 10,837 (1968), reprinted in A. Lowenfeld, supra, at DS-573.

59 An interesting case of an inadvertent conflict with Article 118 of Geneva Convention No. III, supra note 1 (which requires that “[prisoners of war shall be released and repatriated without delay after the cessation of hostilities”), was triggered by Security Council Resolution 598 (July 20, 1987) concerning the situation between Iran and Iraq. Because the resolution referred to the repatriation of POWs “in accordance with the Third Geneva Convention” in the third operative paragraph, which followed provisions in which other actions were listed, some states argued that repatriation must await the completion of the actions first listed by the Security Council.

40 Resolution 666 refers to “such categories of persons who might suffer specially, such as children under 15 years of age, expectant mothers, maternity cases, the sick and the elderly.” SC Res. 666, supra note 11, para. 4.

41 SC Res. 661, supra note 38, para. 6; SC Res. 666, supra note 11, paras. 1, 5–6.

42 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, TIAS No. 7502, 500 UNTS 95.

43 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, TIAS No. 6820, 596 UNTS 261.

44 M. Greenspan, The Modern Law of Land Warfare 580–81 (1959).

45 War Office, The Law of War on Land, Being Part III of the Manual of Military Law 196, sec. 688 (1958).

46 Id., sec. 689.

47 SC Res. 662, supra note 14, para. I; see also SC Res. 661, supra note 38, para. I.

48 SC Res. 662, supra note 14, para. 2.

49 SC Res. 664, supra note 14, paras. 1, 3.

50 SC Res. 667, paras. 3–4 (Sept. 16, 1990).

51 SC Res. 674, supra note 11, paras. 6–7.