Hastages or Prisoners of War: War Crimes at Dinner

• Author: Wayne Elliott
• Pages: 01

JUDGE ADVOCATE GENERAL'S

CORPS, U.S. AP" (RETIRED)*

The takng of hoatages ~sprohrbited.'

Measures of repnsal againstprisoners of war arepmhtbLted.2

I. Introduction

The images filled the world's television screens. Depicted were dejected, seared soldiers chained to obvious military targets. The nightly newscasts revealed new levels of depravity, and contempt for law, in the war in Bosnia. It was war crimes at dinner. In response to NATO air attacks, the Bosnian Serb leadership directed the seizure of hundreds of United Nations "peacekeepers" as hostages. The Serbian leadership made it plan that these United Nations peacekeepers would be held until the United Nations agreed to stop any future NATO air strikes. To protect military targets from future attacks some of the captives were chained to likely targets. \%encriticism of the chaining began to mount, the Serbs declared that the captives were prisoners of war (As if that change in designation made a difference!) The United Nations responded that they could not be prisoners of war because no war existed.3 Therefore, they

*B A 1968, The Citadel. J D 1971, Uniueralty of South Carolina: LL M 1682, Umvernty ofvirgnia Currently an SJ D Candrdate sf the University af Mrgme k h w l of Law Member af the Barr of South Carolma. United States Court ofMd~kaw Criminal Appeals. and the United States Supreme Court The author's last ass>@-. ment with the Army wag as the Chief, International Law Dimman, The Judge Advocate Generalr Sehml. Charlattssnlle, Virgnia

'Artlele 34, Geneva Convention ofAugust 12, 1919 Relative ta the Prot~~tmn or

Civilian Personam Time of War. 6 US T 3516 75 l! A' T S 287 Iheremafrer CCl

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'Artlele 13, Geneva Convention Relative to the Treatment of Prisoners oElVar, 6 U S T 3316, 76 0 X T S. 135 [heremafter GPWiRrd Cross Sa>a L7N Peacekrepm Am Noof Hosfm#egss, RLITPRS, June 2, 1995 ovailabir m LEXIS. N e w Library, Current News Flle Sea also J~ah

S PETCT,

Coxmir~nr

IV 51 11958) IPictet vwms a commentarv on each of the four

a1 law he 16 either B brmm af KBT, and -6 such. cawed by the Thlrd Canuentmn, a civilian covered by the Fourth Canuentmn, or agam, a member a1 the medical nersonnel of the armed forces who 13 covered hu the First Convention There 18 no intermediate status, nobody ~n enem; hands can be outalde the law

~

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were hostages However. rhe International Committee ofCross denied that they here hostages and clalmed that ti priaoneis oi war because they nere taken in response LO an attack on Serbian forces by NATO acting for the United Nations 4 In a rele-iitmn n e ~ s mterwen arter the prisoner alum declararmn. Radman Karadm the apparent leader oi the Bosnian Serbs. mitiall> characterized the captives as 'hostagea." then corrected hlniseli and called them 'nar prisoners " Does their statu?. uhether prisoners of ~ a r or

hostages. really affect their right to be created in accordance with the requ~rements of international IBW?

No The law quoted aboie LEclear If cwilians 18s the United Nations seems to believei. the war crime was complete when they were taken If prisoners of war '85

[he ICRC and at the time. the Serbian captors seemed to believei. iiar crimes were committed while they were he!d

Nhle the conflicts in the Former Yugoslavia could be used as a

comprehensive training package m how to commit sar crimes.j the action of the Serbs in seizing and deliberetel? endangering the detained United Nations personnel ma? be the most vmble example of an ongoing UBT crime in histor3 What sets this particular WBT

crime apart 1% its blatant criminality Usuail) B belligerent accused of committing a war crime will either deny that B crime has occurred or raise an arguable defense (e g , combat canditionsjustified the act under the theory ai military necessity! The hostage takers here have not even bothered to make a claim that taking the hostages was lawful And, If the captives are canaidered to be prisoners of war. there are a myriad of requirements for their treatment The Serbs hare complied with none of them.

Today, unlike a soldier. the kidnaper or terrorist *ill more likely prefer the hostagetaking tactic 6 The taking of hostages LS an ilk. gal act. In one of the most damning photographs to come out of the United Natmns hastage.takmg Incident, a menacing Serb soldier 1sshown ''guarding" a captive who is handcuffed to a building The guard wears a ski mask to hide his identity That LS strong eiidence Lhat even the Serbs recognize that they have crossed the ]me from B

lawful act of war to B war crime Lawful soldiers ~n laaful combat rarely have reason to hide their Identity from rhe world

It makes no difference that the Bosnian Serb leadership has smce released all the captives unharmed War crimes have occurred. The shorter the time hostages are held, or prisoners of war are mis. treated, the better, however, quick release IS only a factor to be considered in mitigatm--lt 1s not a defense. The world cannot smply sit 'dly by and permit such craven lawlessness. There must be some consequence Accepting that the conflict m the Former Yugoslavia 1% now fully covered by the law of WBT,~

this article will review the his. torical practice relating to wartime hostages and their treatment. examine the modern law regarding hostages, and explore the criminal liability of those responsible for committing this war crime

11 Definitions

A. nue Hostages

In the past, the giving and receiving of hostages was an accept. ed part of warfare. Hostages often were held a6 surety that the other side in a conflict would comply with its obligations, either as set out in a particular ad hoc agreement or as part of a larger mle of the law of war. One party might demand that hostages be produced as evidence of the other party's good faith. The hostages provided were living proof of one party's bona fides They were aften of high social status, usually well treated, and, an fulfillment of the agreed condi. time, released While held, they often were given free run of the community. However, if the term8 of the agreement were violated, or if war broke out, the hostages were to be treated ab prisoners afwar That a hostage escaped with the connivance of his government WBJ

'Early I" the fighting the itatus of the eonflict was debaied Was II a clwl Iintemall war" If so, ~t would be governed by camman Arncle 3 or the Geneia Convrntionb which applies to interns1 conflicts If II were an internal conflict. the right of the United Nations to get invalved uavld be suspect Bul aee Theadar Meron. ThaAulhari~,iLo,W~kiTiialiarinthrLalrMiddlrAgrs. 89AJ I L 1 7-lll19961 The e8~alslmn ol Lhe fighting and the ~nvolwment of Croatia and Serbia clearly suppan the ~osifmnthat the lull ISY 01 war now apphei See mer rally Jordan J Pavat, Applicabilrty oflnrirnalionaf Ciiminnf La& !a Ebmfs I" the Former Yugorlaiia, 9 Av U J Isr'L L & POLY 499 (19941 The United Nations \Var Cnmei Cammisiion also hse determined that 'the eonflwts ,%IC) I" Yugodaria are international and thus that all the laws d w a r including, orcourse. the d e s gaierning war crimes. are mppliea-ble " Theodor Meron, War Crimer ~n Yvgosla~ioand the Deuef~pmml aflntemafianol

La&. 88 A J I L 78 (19941 Hououer, *om hosragea even m nvninternaimnal UI lnferna man AAicle 3 are the most baric of humanifa considered to be an internal conflict. Lhe Lakil a c

just cause far uar If the hostage acted alone or without the aurhority of his gobernment in escaping, then he was subject to punizhment ifcaprured 8

In addition to surety hostages. the Romans sometimes took hostages to ensure that the inhabitants of occupied terriror) refrained from attacks on the occupation troops The Romans recog"lied that for the hostage taking to have the desired preventive effect the persons held must have had some personal relationship to the inhabitants responsible for the attacks. For this reason. hostages usually would be taken only from the immediate mtinity of the area in which the attacks occurred

By the Middle Ages, captives had a monetary value and the practice of holding prisoners for ransom became firmlj established While the ransom system usually applied to prisoners of am cap-tured m combat. hostages continued to be held as living performance bands for promises made. In France m 1360, the Treaty of BrCtigny addressed the ransom of the French King and the setdement of English clams to French lands To ensure compliance with the tieaty's terms. forty French hostages were furnished to the English 9

This practice continued for several centuries In 1764 [he treaty between the British and the Seneca Indians provided that three Indian Chiefs were to be held by the British and released "on due performance of these articles.'''o Hostages held pursuant to such formal agreements were entitled to he well treated and often were involved in the activities of the high society of the captor Little \+as to be gained by the deliberate mistreatment of hostages because the) were held only as surety for a promise Mistreatment simply might lead the other side to void the agreement However, the practice of providing for the delively, custody. and release of hostages m a formal agreement has been abandoned. The modern practice 15 LOprowde far the temporary transfer of control of territory as a guar-antee of compliance with the terms of a treaty

Sometimes hostages were held as security for requisitmn demands and the payment of contributions. The hostages would be

'For the treatment 01 hostages bi the Greeks and Roman%. bee I COLillil PHlLLlssON, THE I~TERNITIONAJ hu

AYD CLETOM OFA\\clnT Gniiri _o ROVE 395

406 11911)

'The hurlap were released BI the r a m m mount UBP paid Som England lor ten years The incident IB diiiuaied I" BMS- U' TLCh\%\

OEllen Hammer & Manna Saliir The Takin8 aiHartngai tn

19951 HOSTAGES OR PRISO>VERS OF WAR 245

held until the governing body of an area was able to raise enough funds to pay the demand 12

During the Civil U'ar. m General Order 100, the...