Humanity, prisoners of war, and torture

Abstract

Torture and other forms of cruel and degrading treatment have been condemned by all the relevant documents in international law for over a hundred years. Torture has been condemned so strongly that it is normally said that it is unacceptable even when seemingly required by military necessity.2 I will here mention only the most significant of the documents. Common Article 3 of the 1949 Geneva Conventions states that torture "shall remain prohibited at any time and in any place whatsoever." 3 The 1966 International Covenant on Civil and Political Rights, in Article 7, states that "no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment."4 The 1984 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment creates an absolute ban on torture.5 And the 1998 Rome Statute of the International Criminal Court, in its own condemnation of torture as a crime against humanity as well as a war crime, refers to torture as one of the Grave Breaches of the Geneva Conventions.6 Adam Roberts, summarizing these and other documents, says: "the laws of war.. have helped to bring about a degree of acceptance and observance of certain valuable basic ideas: for example.. that there can be no justification for torture."7 Despite the fact that torture of prisoners of war has been condemned by every major document in international law, it has seemed to some, especially those in the administration of George W. Bush, that terrorism creates a special case for how prisoners of war (POW) are to be treated.8 The prisoner may belong to a "cell" of those who have committed themselves to the use of tactics that risk horrible consequences for many innocent people. The prisoner may have information about future attacks on civilian populations that could, if learned, be instrumental in the prevention of these attacks. In addition, in a "war" against terrorists, it seems clear that the terrorist side is not willing to play by the rules of war, and hence that the terrorist prisoners should not be afforded the privilege of humane treatment that they deny to others. Nonetheless, I will argue that POWs should be treated humanely in that they are not subject to torture when captured and imprisoned. Our humanity demands as much. I will ask what it is about humanity that might restrict or prohibit the use of torture and other forms of physical coercion in the treatment of POWs. In Section 1, I draw on insights from Hugo Grotius to argue that it is the principle of humanity not justice that should be definitive of the rules of war, especially concerning torture of POWs. In Section 2, I consider how the circumstance of being captured and placed into confinement changes the rules of the game. In Section 3, I argue that there is a fiduciary or stewardship relationship between a captor and a POW that underlies the obligations of humanity of captors and dictates that POWs not be tortured. © 2007 Springer.