By Nandana Rudreiah, 3rd Year Student at National University of Juridical Sciences.
Treatment of prisoners of war
The principles governing the treatment of prisoners of war are part of customary international law which has been codified in the Hague Convention of 1907 relating to laws and custom of war . The Hague Regulations presented several problems and deficiencies during the World War I because the Convention was practically a codification of the customary laws on war, which were present before the development of advanced warfare. It was not equipped for the scale and the extent of warfare during the First World War and hence this led to the creation of the Geneva Convention of 1929, which was subsequently replaced by the Geneva Convention of 1949 (‘Third Geneva Convention’ or ‘Geneva Convention’) on treatments of prisoners of war. Although the Hague convention was recognised as codified International Customary Law, such recognition has not been accorded to the Geneva conventions. The relatively new Third Geneva Convention while determining the applicability of the convention, adopted the criteria mentioned in the Hague Convention under the regulations annexed for Article 1. This has been incorporated in Article 4 of the Convention which with regards to militias and voluntary corps specify that these groups must be led by an individual who would be responsible for the acts of the subordinates, be represented by a distinctive sign recognizable by a distance, carry arms openly and further, most importantly, conduct their activities in accordance to laws and customs of war.
Can the Third Geneva Convention be applied to the members of ISIS?
The Islamic State of Iraq and Syria has its origins tied to Al-Qaeda and Bin Laden. They were also considered the Middle Eastern wing of the Al-Qaeda since they acknowledged the successors of Bin laden, Abu Musa’b al Zarqawi, and two other guerrilla leaders of the organisation. One of the main arguments advanced for not applying the Third Geneva Convention on members captured from groups such as Al-Qaeda, Hezbollah in Lebanon or Taliban in Afghanistan is that first, they do not conduct their activities according to the custom and laws of war recognised by other nations. The brutality displayed by such organisations is unprecedented. They do not treat prisoners that they have captured, humanely; massive killing of soldiers are a common phenomenon. Moreover they fail to establish a recognisable identity. To illustrate the fighters belonging to Hezbollah in Lebanon, when the soldiers threaten them, they drop their weapons and try to blend in with the villagers near by the battleground. Similarly the Al-Qaeda also does not have a distinctive identity. They do not wear distinctive clothing and they also try to blend in with the Afghan tribes present in their area. Furthermore they are scattered and disorganised. Therefore they fail to qualify under the tests prescribed under the Convention. However human rights lobbyists such as the Red Cross have urged to include such groups also under the ambit of the Convention.
The Islamic State, although originally associated with the Al-Qaeda had undergone drastic and fundamental changes. First, there is a deep division between the Al-Qaeda and the Islamic State due to ideological difference and now the Islamic state is an independent entity under the control of a self-proclaimed Caliph, Abu Bakr al-Baghdadi. They maintain territorial control over the territories occupied in Iraq and Syria. Further they can be recognised from a distance because of their distinctive black uniform. They also carry arms and ammunitions openly. The Organization is highly structured with a strict sense of hierarchy. The German Journalist Jurgen Todenhofer who was granted access into the Islamic State documented that the organisation has a recruitment process where on an average 400-500 people are recruited per day. It is also common knowledge that social media is used to promote its agendas. They have control over oil reserves in the occupied territories and they sell such reserves and fund the organisation. This is not the only source through which they get funds, 20-30% of their funds come from the ransom that they receive from the abduction of refugees. Further they also sell ancient artefacts and historic documents to museums. Moreover the organisation is also rumoured to have received huge funds by nations that are interested in the agendas of the organisation. The primary goal of the organisation is to establish an Islamic State in the occupied territories with the Caliph as the head of state. This transition of the organisation is truly remarkable . The Islamic State fulfils all the conditions present in the Geneva Convention except the one which speaks of the conduct of armed militias and voluntary corps. The conduct of such groups is the deciding factor, which determines whether they come under the ambit of the Convention. The Islamic State is known for its beheadings, mass killings and brutal treatment of prisoners. They flout the law and customs of war. Therefore strictly speaking the Geneva Convention cannot be applied to the members of the Islamic State.
However human rights activists such as Anthony Dowrkins argue that the Geneva Convention must be applied to such groups also, but most nations are staunchly against the application of the Convention to these organisations. The rationale behind such a stance is that a state would follow the Geneva Convention during war with another state with the belief that the other state would also follow such convention. They act as ground rules for war, but when face with a stateless enemy who refuses to follow the ground rules, the state’s incentive to follow them ceases to exist. The reasoning presented by the states is flawed because there must be no incentive to protect human rights. Moreover the Geneva Convention contemplated that the conduct of a state be independent of the conduct of other state or armed militia.
The Islamic State is not similar to the conventional terrorist organisation such as the Taliban or the Al-Qaeda. It occupies a middle ground between such organisations and armed militia recognised by the Geneva Convention because of their conduct in treatment of prisoners of war. This prevents them from application of the Convention. Although the nations are reluctant with the application of the Convention to these groups by citing that they do not follow the law of war, it is the opinion of the author that the Convention should be applied to the member of the ISIS because one of the primary reasons attributed towards the creation of the Geneva Convention was the protection of human rights during war It forms part of a series of Conventions and protocols The legal cynicism towards the application of the Convention to terrorists undermines the body of law that has been regulating war for a century. The war on terror without a regulatory body would turn barbaric and a century’s worth of jurisprudence relating to protection of human rights would be lost.