Colonel Gordon Risius
INTRODUCTION
Of the tens of thousands of Iraqi soldiers taken prisoner by coalition forces during the Gulf conflict, virtually all entered captivity in the traditional manner, surrendering to advancing troops on the battlefield. In most instances Geneva Convention in provided adequate guidance on their treatment. However, thirty-five of their comrades also came to be treated as being subject to the Convention in unusual, possibly unprecedented, circumstances in the UK, thousands of miles from the battlefield. In their case the Convention did not always resolve problems concerning their treatment.
The purpose of this chapter is to outline the circumstances of the internment of these thirty-five Iraqis as prisoners of war, and to discuss some of the legal issues involved in their detention, including the determination of their status as members of their country’s armed forces and the authority under English law for interning them.
It is not intended to discuss international legal considerations outside the law of armed conflict, such as the impact, if any, of the European Convention on Human Rights or the International Covenant on Civil and Political Rights. Nor is it proposed to deal, except in passing, with the short period prior to internment as prisoners of war, when the individuals concerned were being detained by the civil authorities under the Immigration Acts (see Chapter 15).
OUTLINE OF EVENTS
On 18 January 1991, very shortly after the outbreak of hostilities in the Gulf, the Ministry of Defence were informed that two Iraqi students, being held at Pentonville prison under paragraph 2 (2) of Schedule 3 to the Immigration Act 1971, were believed to be serving Iraqi military officers, both of the rank of lieutenant-colonel.2 They were handed over into military custody as prisoners of war and held briefly at military barracks in London, before being transferrred on 26 January to Rollestone Camp on Salisbury Plain, which had just been converted to a prisoner of war camp. There they were joined later the same day by a further thirty-three Iraqi students who had likewise been detained by the civil authorities under immigration powers; deportation action had been initiated against all thirty-five when the Home Secretary had personally decided that their presence in the UK was not conducive to the public good for reasons of national security because they were believed to be members of the Iraqi armed forces.3 However, doubts regarding the status
of four individuals resulted in boards of inquiry being convened. After the boards of inquiry had completed their work and had made recommendations, three of the four were released, while the prisoner of war status of the individual in the remaining doubtful case was confirmed. He and his thirty-one fellow prisoners of war continued as internees at Rollestone Camp until 6 March 1991, when they were released immediately following the cessation of active hostilities in the Gulf.
APPLICABILITY OF THE GENEVA CONVENTIONS OF 1949
Although all four 1949 Geneva Conventions applied from the outset of the Gulf crisis on 2 August 1990, at least between Iraq and Kuwait and, to a limited extent, other states whose nationals were caught up in the crisis, they did not enter fully into operation as between the UK and Iraq until the early hours of 17 January 1991, when hostilities between those two countries commenced.4 Iraqi nationals in the UK at that time accordingly found themselves ‘in the hands of a Party to the conflict of which they [were]
not nationals’, and thus became persons protected by Geneva Convention IV (‘the Civilians Convention’), unless protected by one of the other three Conventions, in which event the Civilians Convention had no application.5
Whether any of the other Conventions was applicable was a question of fact, not a matter of discretion for the UK authorities. In the case of Geneva Convention III relating to prisoners of war (hereafter ‘the Convention’), the question was whether any Iraqis in the UK came within Article 4, which provides so far as is relevant that ‘Prisoners of war…are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict…’
(Article 4A (1)).
Since the thirty-five Iraqis were plainly in the power of the UK as one of Iraq’s enemies in the Gulf conflict, the answer lay in whether they were currently members of Iraq’s armed forces.
The Convention does not define what is meant by the phrase ‘Members of the armed forces’. According to Pictet,6 the drafters of the Convention considered whether a ‘more exact definition’ was needed (e.g. whether a distinction should be drawn between combatants and non-combatants), but concluded that any attempt to do so might result in undesirable restriction. Whether a person is a member of a country’s armed forces must depend, therefore, on the law and practice of the country concerned, on the basis that
It would seem to be generally accepted that a State has the exclusive right to determine the method of recruitment of its armed forces…[and]… to determine the composition of its armed forces, whether they be regular, part-time volunteer or militia troops.7
There is normally no doubt little difficulty in determining that those captured in the course of fighting, wearing uniform and carrying weapons and military identity cards, are members of their country’s armed forces. They would be likely to be either regular soldiers or alternatively reservists or part-timers called up into full-time service. At the other extreme, few would seriously suggest that a country’s entire adult population
constituted its armed forces, even though all adults may be liable, at least in theory, to conscription. But what of those in between these two extreme positions, for example ex- regular soldiers with an unexpired reserve liability? Can they properly be regarded as members of their country’s armed forces, and if so, at all times, or only when called up?
What if a reservist receives his call-up papers but decides to ignore them? Authority in this area is lacking, and in the absence of evidence of the law and practice of the state concerned, it is suggested that relevant considerations might include the following: prior military service; reserve liability; the continued use of rank; the receipt of military pay;
the receipt of call-up papers; current subjection to military law and discipline; and the individual’s own views regarding his status. None of these individually would necessarily be conclusive, but taken together they might point either to military or civilian status.
PRISONERS OF WAR
It is understood that at no stage did either of the two lieutenant-colonels dispute his current membership of the Iraqi armed forces, and there was no reason to doubt such membership. They were therefore plainly prisoners of war and subject to the Convention, and the British authorities accordingly had to decide how to deal with them within its terms. Although prisoners of war (at least those not seriously sick or wounded) are traditionally interned for the duration of hostilities, the practice is not mandatory in view of the terms of Article 21, which provides merely that ‘The Detaining Power may subject [prisoners of war] to internment’. For practical purposes there are only two alternatives to internment, namely local release and repatriation, and it is proposed to consider these briefly in turn before dealing with internment.
Local release
Article 21 provides that ‘Prisoners of war may be partially or wholly released on parole or promise, in so far as is allowed by the laws of the Power on which they depend’ (i.e.
Iraq in the present case). Article 21 goes on to provide that ‘Upon the outbreak of hostilities, each Party to the conflict shall notify the adverse Party of the laws and regulations allowing or forbidding its own nationals to accept liberty on parole or promise’. No such notification was received from the Iraqi authorities at any stage, and the question of local release was accordingly not considered further.
Repatriation during hostilities
The Convention contains detailed provisions (Articles 109 and 110) concerning the repatriation and accommodation in neutral countries of seriously injured or sick prisoners of war while hostilities continue. There are no such provisions relating to healthy prisoners, who are entitled to be repatriated only ‘after the cessation of active hostilities’
(Article 118). Whether healthy prisoners should be repatriated during hostilities is thus a question of policy. Since it is hardly in the interests of a state to supply its enemy with, in effect, reinforcements, the practice of repatriating healthy prisoners of war is rare.8 There seemed to be no reason on this occasion to help augment Iraq’s military forces, and the
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question was not considered further. In any event, the difficulties of ensuring the prisoners’ safety in accordance with Article 13 right up to the moment of their arrival back in Iraq might well have proved insuperable. Furthermore, the prisoners might have been unwilling to be repatriated, particularly in the case of those who had ignored their call-up papers from Baghdad.
INTERNMENT
The decision to intern Iraqi prisoners of war has been criticized on a number of grounds:
that There is no article in the Geneva Convention to say that …a person who is in the military in your country, with his family here, can be taken as a PoW’; that the Convention was ‘being used oppressively’, on the basis that it ‘is intended to be protective of the rights of people captured in combat or in occupied territories, not used as a justification for detaining non-combatants away from the war zone’;9 that there was no royal proclamation, order in council or emergency legislation; that ‘the only justification for this behaviour is a First World War court case which ruled that a German civilian could be treated as a PoW because all Germans were dastardly and could not be trusted’; and that it was simply a response to threats of reprisals issued by Iraq.10
Among the many considerations a state will take into account in deciding whether to intern prisoners of war are the following:
1 The possibility that some of the prisoners might otherwise leave the country, make their way home and rejoin their units;
2 The fact that combatant members of armed forces are entitled under the law of armed conflict to attack military objectives. It is now known that the threats made by Iraq to carry out world-wide sabotage if attempts were made to free Kuwait by force were never implemented, but, not unreasonably, they were taken seriously at the time;
3 The duty imposed on the detaining power by Article 13 of the Convention to provide prisoners of war (not just those interned) with protection, ‘particularly against acts of violence or intimidation and against insults and public curiosity’. Such protection is difficult, if not impossible, to ensure if those entitled to it remain at large. It is a matter of conjecture whether the thirty-five Iraqis would have been at risk of violence from, say, Kuwaitis in exile in the UK, but it is unlikely that the media would have kept its curiosity under control;
4 The requirement under Article 16 to treat all prisoners of war alike. It is not suggested that this provision would necessarily have been contravened if Iraqi prisoners in the UK had been allowed to remain at large while their comrades captured on the battlefield in the Gulf were interned, but it was nevertheless a consideration to be taken into account.
Some of these considerations are clearly of greater significance than others. In the particular circumstances of this conflict, since the Iraqis in question were highly qualified and were engaged in advanced scientific studies, they might have been of considerable value to their country’s military effort. These considerations aside, the decision to intern them was clearly not oppressive, and the government would have been open to serious criticism if it had not acted in the way it did.
As to the implication that the absence of a proclamation, order in council or legislation rendered the internment unlawful, it is necessary to consider briefly the relationship between international law and English domestic law, and then the basis under the latter for interning prisoners of war.
Although the Convention, like the other three Geneva Conventions of 1949, is printed in full as a Schedule to the Geneva Conventions Act 1957, only those provisions of the Convention which are referred to in the body of the Act (e.g. those which make grave breaches of the Convention offences triable in the civil courts) are part of English law.11 It follows that the internment provisions of the Convention cannot in themselves provide the necessary legal justification under English law for depriving prisoners of war of their liberty.
In the absence of statutory provision, the internment of prisoners of war in the United Kingdom must therefore be justified, if it can be justified at all, by reference to the royal prerogative. According to Hood Phillips:
Wartime legislation and emergency powers during both the two world wars gave the Crown very extensive powers of control over enemy aliens…. The legislation expressly preserved the Crown’s prerogative in relation to enemy aliens. At common law their licence to remain at large may be revoked at any time at the complete discretion of the Crown, and they can be interned or deported. The internment of an enemy alien is an act of state, and he has no right to apply for a writ of habeas corpus against the executive to challenge the Crown’s power to intern or deport (R. v. Bottrill, ex p. Kuechenmeister12).13
The existence and extent of the prerogative to intern prisoners of war was considered during the First World War in R. v. Vine Street Police Station Superintendent, ex p.
Liebmann,14 where it was held, inter alia, that:
1 The Crown was entitled to intern enemy aliens in time of war.
2 An enemy alien so interned could correctly be described as a prisoner of war, even though neither a combatant nor a spy.
3 ‘The action of the Government in [interning alien enemies] is not open to review by the Courts of law by habeas corpus’.
In view of the developments in the law of armed conflict which have taken place since Liebmann was decided, in particular the clear distinction now drawn between civilians protected by the Civilians Convention on the one hand and those combatants and accompanying civilians (e.g. war correspondents, supply contractors, etc.) entitled on capture to prisoner of war status under Geneva Convention III on the other, it is unlikely that a court today would follow point 2 above, but there is no reason to suppose that the propositions in points 1 and 3 are no longer valid.
Liebmann was approved in Kuechenmeister, which was decided shortly after the end of the Second World War. One of the arguments advanced in that case was that the internment of enemy aliens under the prerogative was lawful only in time of war. Since Germany had unconditionally surrendered on 5 June 1945, it was argued that a certificate dated 2 April 1946 from the Secretary of State, to the effect that His Majesty was then
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still at war with Germany, should not be regarded as conclusive, on the ground that international law would consider the state of war to have come to an end on 5 June 1945.
However, the court rejected the argument and refused to go behind the certificate, holding that it was conclusive.
In a Parliamentary written answer given on 28 January 1991,15 the Prime Minister stated that the UK was not in a state of war with Iraq but was, together with others, engaged in hostilities against Iraq under the authority of the United Nations Security Council. This does not, it is submitted, invalidate the prerogative as authority for interning the thirty-five Iraqis at Rollestone Camp, on the basis that the courts today would doubtless accept that international law has developed since Kuechenmeister, and that the concept of ‘armed conflict’ has to some extent at least superseded that of ‘war’.16 If so, the courts would be likely to regard a state of armed conflict as equating, for prerogative purposes, to a state of war, thereby confirming the right to intern prisoners of war as an act of state.17
There is no legal requirement for the internment of prisoners of war under the prerogative to be preceded by a royal proclamation or order in council, as suggested. It is exercised on the advice of ministers without the need for any legal preliminaries.
DETERMINATION OF STATUS
All thirty-five Iraqis were interviewed individually by the Commandant of Rollestone Prisoner of War Camp shortly after arriving there. A number protested to him that they were not members of the Iraqi armed forces, and asked to be released.
Whether a person is entitled to be treated as a prisoner of war can be a question of the utmost importance. In extreme cases it can be a matter of life or death. A soldier who takes a direct part in hostilities, for example by attacking an enemy soldier and killing him, and is then captured, is entitled to prisoner-of-war status, and provided the killing was not contrary to the law of armed conflict (as it would have been if, say, the enemy soldier was clearly hors de combat when he was killed), he cannot be put on trial by his captors. A civilian captured by the enemy after carrying out such an act, on the other hand, would not be entitled to the protection of the Convention, and would be liable to be tried as a war criminal for unlawfully taking part in the hostilities. Depending on the circumstances and the local law, he might be liable to the death penalty. Since the denial of combatant, and therefore prisoner-of-war, status can have such serious consequences, Article 5 of the Convention provides that:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
Such tribunals may be either military or civil. Their composition is not laid down by the Convention, but it seems that they are expected to consist of more than one person, because when the provision was being negotiated there was concern that ‘decisions which