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What Qualifies as a War Crime?

The graphic descriptions and photographs of abuses by U.S. soldiers against Iraqi detainees at Abu Ghraib prison provoked an international outcry last summer and sparked a military investigation that resulted in the conviction of an Army private, with perhaps more to come. But were they war crimes?

Allen Weiner, a professor of international law and diplomacy, a chair held jointly by the Law School and the Institute for International Studies, says prosecuting war crimes in the Abu Ghraib case would be difficult because it isn’t clear that the combatants are eligible for protection under the Geneva Conventions. Unlike Taliban forces in Afghanistan, who were fighting for the de facto government, the prisoners at Abu Ghraib wore no uniform, served no government and made no effort to distinguish themselves from the civilian population. “There is a concept that a person who does not comply with the laws of war ceases to be protected under the Geneva Conventions,” says Weiner, a former legal counselor for the U.S. Embassy at The Hague.

Weiner is skeptical that the “war on terrorism” is a war at all, in legal terms. “Just because we refer to this rhetorically as a war doesn’t mean that all of the special legal rights and responsibilities apply. Somebody we pick up in Germany or Spain who is part of an Al Qaeda cell isn’t part of an international armed conflict in the traditional sense.”

What do the Geneva Conventions cover? First signed in 1864, seven new conventions were added between 1899 and 1977. These international guidelines outline the protocols for treatment of civilians and soldiers in wartime. The conventions are designed to regulate the behavior of governments, but under certain circumstances individuals may be prosecuted for criminal acts, says Weiner. This only occurs when the actions are so severe they constitute a “grave breach” of the conventions.

According to Convention III, Article 130, these include “willful killing, torture or inhuman treatment” and atrocities such as conducting biological experiments on human subjects. While repugnant, says Weiner, “Stacking people in pyramids and taking photos of them probably doesn’t rise to the level of a grave breach.”

That doesn’t mean U.S. officials and soldiers couldn’t be held accountable. Regardless of whether the victims were technically prisoners of war, the actions of the U.S. soldiers at Abu Ghraib violated both the Geneva Conventions and Army policy, Weiner says. “Considering the damage that was done to U.S. interests, it seems to me you would want to take this to the highest level possible in terms of where management responsibility lay. I’m not talking about prosecuting people as war criminals, but applying the Army’s own rules for maintaining order and discipline.”

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