Law Watch:
Deaths of Captives Held by U.S. Security Forces in Theater
Steven C. Welsh, Esq.

CDI Research Analyst

May 4, 2004

Reuters has reported that on Tuesday, May 5, 2004 , a U.S. Army official requesting anonymity revealed that the U.S. military has investigated the deaths of 25 prisoners in the custody of U.S. forces in Iraq and Afghanistan , with two of the incidents already being deemed murders.  One murder reportedly was carried out by a U.S. Army soldier and the other by a CIA contractor. 

The Soldier-Murderer

In the case of the soldier, the military reportedly tried and convicted the soldier for shooting a prisoner in Iraq who had thrown rocks at the soldier, an incident that occurred in September 2003.  Title 10, Article 918 of the U.S. Code, applicable to U.S. Armed Forces, defines murder as the unlawful killing of a human being either when there is a premeditated design to kill; an intention to kill or inflict great bodily harm; the undertaking of an act inherently dangerous to another and evincing a wanton disregard of human life; or the accompanying perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson.  In the case of either premeditated murder, or murder in the course of burglary, sodomy, rape, robbery, or aggravated arson, the statute calls for the death penalty or life imprisonment.  In this instance, the soldier reportedly was demoted and discharged without being subjected to a prison sentence.  One might surmise that the court-martial did not find that the murder was premeditated.

The Civilian CIA Contractor-Murderer

The murder involving the CIA contractor reportedly occurred in November 2003 at the notorious Abu Ghraib prison (where it recently has been revealed that Iraqi prisoners also have been subjected to what amounted to psychological and physical torture including borderline sexual abuse, the subject of additional investigation and intense media and international scrutiny).

The military reportedly declined to pursue charges against the CIA contractor, whom it deemed outside its jurisdiction, and instead referred the matter to the Justice Department.

The Geneva Convention and Army Regulations

As can be expected, the Geneva Convention relative to the Treatment of Prisoners of War (applying to times of war as well as occupation with or without continued armed resistance) deems the willful killing of prisoners of war a "grave breach" of the Geneva Convention (Article 130).  It requires the United States to have enacted any legislation necessary to provide effective penal sanctions for such a grave breach, and to apprehend the perpetrator and bring him or her before a court, presumably implying that the perpetrator must be prosecuted (Article 129).

Similarly, in the event that the Iraqi prisoners who were murdered were civilians rather than prisoners of war, the Geneva Convention relative to the Protection of Civilian Persons in Time of War mandates essentially identical standards (Article 147 and 146).

Of course, it is unclear exactly who the murdered prisoners were, and it is possible they did not fall under the narrow status of being protected by either of those two conventions; on the other hand, the Geneva Convention relative to the Protection of Civilian Persons in Time of War provides that even unconventional combatants, i.e., spies and saboteurs,

"shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial … They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power …" (Article 5).

U.S. military regulations provide similar safeguards.  Army Regulation 190-8 mandates that all persons taken into custody by U.S. forces will be provided with the protections of the Geneva Conventions until some other legal status is determined by competent authority (section 1-5 (a)(2)), and that in any event the inhuman treatment of prisoners of war or detained civilians is prohibited and "is a serious and punishable violation under international law and the Uniform Code of Military Justice … The following acts are prohibited: murder, torture … execution without trial by proper authority…" (section 1-5 (a)(4), (b))

(Against the backdrop of the overall pattern of abuse at Abu Ghraib, one notes that the same regulations also prohibit "all cruel and degrading treatment." (section 1-5 (b).)

Sources and further reading:

"Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees," Army Regulation 190-8, Oct. 1, 1997 ,  http://www.au.af.mil/au/awc/awcgate/law/ar190-8.pdf

Geneva Convention relative to the Treatment of Prisoners of War, Oct. 21, 1950 (entry into force), http://www.unhchr.ch/html/menu3/b/91.htm

Geneva Convention relative to the Protection of Civilian Persons in Time of War, Oct. 21, 1950 (entry into force), http://www.unhchr.ch/html/menu3/b/92.htm

Seymour M. Hersh, "Torture at Abu Ghraib," The New Yorker, http://www.newyorker.com/printable/?fact/040510fa_fact

10 U.S.C. Sec. 918, http://www4.law.cornell.edu/cgi-bin/htm_hl?DB=
uscode10&STEMMER=en&WORDS=
murder+&COLOUR=Red&STYLE=s&URL=/uscode/
10/918.html#muscat_highlighter_first_match

"25 Prisoners Died While Held by U.S. Forces," Reuters, May 4, 2004 , http://www.reuters.com/newsArticle.jhtml?type=
topNews&storyID=5038799&section=news

" U.S. Probe: Two War Prisoners Murdered by Americans," Reuters, May 4, 2004 , http://www.reuters.com/newsArticle.jhtml;jsessionid
=0FV10HD00V540CRBAELCFFA?type=topNews&storyID
=5038330&section=news