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08 April 2003

U.S. Says Iraqis Show Systematic Disregard for Laws of War

(Pentagon briefing on observance of laws on military conduct,
prisoners) (8410)
The Iraqi regime of Saddam Hussein continues to disobey the laws
governing military conduct during wartime and treatment of prisoners,
say two senior U.S. government experts on the Geneva Conventions and
war crimes issues.
Following is the transcript of a Defense Department briefing April 7
by W. Hays Parks, special assistant to the Judge Advocate General for
the U.S. Army, and Ambassador Pierre-Richard Prosper, U.S.
Ambassador-at-Large for War Crimes Issues at the Department of State:
(begin transcript)
DOD News: Briefing on Geneva Convention, EPW's and War Crimes
U.S. Department of Defense
Transcript
April 7, 2003 10:00 a.m. EDT
Briefing on Geneva Convention, Enemy Prisoners of War and War Crimes
(Participating in this briefing were W. Hays Parks, Special Assistant
to the Army Judge Advocate General and Pierre-Richard Prosper, U.S.
Ambassador-at-Large for War Crimes Issues)
[BRYAN] WHITMAN [Deputy Assistant Secretary of Defense for Public
Affairs]: Good morning and thank you for joining us this morning, both
not only here but also in Kuwait as well as Qatar.
This is the first in a series of our briefings on issues that are
related to the U.S. military's treatment of enemy prisoners of war.
Today, we have two individuals with us, Mr. W. Hays Parks and
Ambassador Pierre-Richard Prosper. Mr. Parks is the special assistant
to the Judge Advocate General of the U.S. Army for law of war matters.
Ambassador Prosper, who joins us from the State Department, is the
U.S. Ambassador for War Crimes Issues. Both gentlemen are experts on
the law of war and the Geneva Conventions, and they'll be discussing
the legal concepts behind them.
We have -- are going to try to take questions once they have a brief
presentation, not only from here but also from Kuwait and from Qatar,
and we'll see how that works.
Sir?
PARKS: Well, thank you and good morning. I'll just start with just a
very brief statement, part of which I want to talk about the
foundation of this topic, the law of war, we're talking about.
The modern law of war as we know it today actually began when
President Lincoln commissioned Professor -- Dr. Francis Lieber to
write a code for Union forces during the American Civil War. The
Lieber Code, as its known -- it was also U.S. Army General Order No.
100, and it was published in 1863 -- that really formed the foundation
for everything we have in our modern law of war today. Professor
Lieber didn't make it up. He actually went through history to find the
practice of nations, and I think that's a very important point here,
to understand that this is the way nations feel that they should
conduct military operations. Since the Lieber Code, there have been a
number of other conferences: In The Hague in 1899 and 1907; one of the
most important treaties to come out of the latter conference was the
1907 Hague Convention number IV for the Conduct of Military Operations
on Land. There have been any number of Geneva Conventions for the
protection of war victims over the year -- over the years. Today there
are four 1949 Geneva Conventions. The first deals with military
wounded and sick on the battlefield. The second deals with military
wounded, sick and shipwrecked. The third refers to prisoners of war
and their protection, and the fourth deals with enemy civilians or
civilians in enemy hands. They are still in effect, and I'll mention
them just a bit more.
I'll focus on the 1949 Geneva Convention relative to the prisoners --
to the protection of prisoners of war. I'll also focus on Department
of Defense policies with respect to the law of war and the current
conflict with Iraq and Iraqi violations of the law of war.
With respect to the 1949 Geneva Conventions, they were negotiated
after World War II. Out of 194 nations in the world today, 190 are
states parties to those 1949 Geneva Conventions. That includes the
United States and Iraq. There are more governments states parties to
this -- to these conventions than are member nations of the United
Nations, giving you an idea of how widely accepted and received they
are.
The protections apply when the members of the armed forces of one
belligerent nation or their civilians fall into the hands of an enemy
belligerent. In the case of prisoners of war, this can happen through
capture or surrender to enemy military forces.
The Geneva Convention relative to the protection of prisoners of war,
which I -- we normally refer to as the GPW, contains some fundamental
protections for prisoners of war. First, prisoners of war must at all
times be humanely treated. Humane treatment is the baseline, but POW
protections are much more extensive. Any act or omission that causes
the death or endangers a prisoner of war is prohibited and is a
serious breach of the convention.
Next, prisoners of war must be removed from the battlefield as soon as
circumstances permit and at all times protected from physical and
mental harm. Prisoners of war must be provided adequate food, shelter
and medical aid. Prisoners of war must be protected, particularly
against acts of violence or intimidation, and against insults and
public curiosity.
If questioned, prisoners of war are required to provide their name,
rank, serial number and date of birth. They may not be forced to
provide any other information.
Prisoners of war may not be subjected to physical or mental torture.
Those who refuse to answer questions may not be threatened, insulted
or exposed to any unpleasant or disadvantageous treatment of any kind.
Subject to valid security reasons, prisoners of war are entitled to
retain their personal property and protective equipment. These items
may not be taken from a prisoner of war unless properly accounted for
and receipted.
Representatives from the International Committee of the Red Cross must
be permitted access to prisoners of war as soon as practical.
All prisoners of war must be protected against assault, including
sexual assault. Female prisoners of war shall be treated with regard
due to their gender, and like all prisoners of war, are entitled to
respect for their person and their honor.
The United States and Iraq also are parties to the 1949 Geneva
Convention on the Wounded and Sick that I mentioned earlier. The title
of the convention is also a bit misleading, because it also deals with
the protection and respect for enemy and dead on the battlefield. In
particular, this convention requires parties to the conflict to
protect the dead against pillage and ill treatment, and requires
parties to ensure that the dead are honorably interred, their graves
respected, and information as to their identity, et cetera, provided
to the International Committee of the Red Cross.
Let me talk a little bit about DOD policies and the conflict in Iraq.
The United States and coalition forces conduct all operations in
compliance with the law of war. No nation devotes more resources to
training and compliance with the laws of war than the United States.
U.S. and coalition forces have planned for the protection and proper
treatment of Iraqi prisoners of war under each of the Geneva
conventions I have identified. These plans are integrated into current
operations.
Before describing our policies, I should note that in Operation Desert
Storm in 1991, the United States and coalition partners detained
86,743 Iraqi prisoners of war. These Iraqi prisoners of war were given
all the protections required by the Geneva conventions.
Our aims and acts are precisely the same in the current conflict. We
are providing and will continue to provide captured Iraqi combatants
with the protections of the Geneva conventions and other pertinent
international laws. In addition, arrangements are in place to allow
for representatives from the International Committee of the Red Cross
to met with Iraqi prisoners of war. With respect to Iraqi violations
of the Geneva conventions and other laws of war, the Iraqi regime is
not complying with the Geneva conventions. Before turning to a summary
of the Iraqi violations, I should note that in Operation Desert Storm,
in 1991, the Iraqis mistreated U.S. and coalition prisoners and forces
in numerous respects, including physical abuse and torture, forced
propaganda statements, food deprivation, denial of International
Committee of the Red Cross access until the day of repatriation, and
much more.
The Iraqis similarly mistreated Iranian prisoners of war during the
eight-year Iran-Iraq war in the 1980s. The Iraqi regime has thus
displayed a pattern of systematic disregard for the law of war. Based
upon initial reports, including those in the media, it appears Iraq
has once again committed violations of the Geneva Conventions and
related laws of war. I will mention just three.
First, Iraqi television and Al-Jazeera have aired a lengthy tape of
deceased U.S. or coalition service members. I will not describe the
tape in detail. Suffice it to say that the tape, made at the direction
of the Iraqi regime, shows fundamental violations of the Geneva
Convention obligations, to include prohibitions on pillage and ill
treatment of the dead, the duty to respect the personal dignity of all
captured combatants, and possibly prohibitions against willful
killing, torture, inhumane treatment, or the willful causing of great
suffering or serious injury to body or health of the POW.
Second, Iraqi television and Al Jazeera have aired a tape of U.S.
soldiers answering questions in humiliating and insulting
circumstances designed to make them objects of public curiosity, in
violation of the prisoner-of-war convention.
Third, there are reports that the Iraqi regime has sent forces
carrying white flags as if to indicate an intention to surrender,
repeating an illegal act used by the Iraqi military in the 1991
coalition war to liberate Kuwait, or dressed forces as liberated
civilians to draw coalition forces into ambushes. These acts of
perfidy -- the term that we use -- are among the most fundamental
violations of the law of war, endangering coalition forces and
innocent Iraqi civilians.
These are the three obvious Iraqi law-of-war violations. Behind the
tapes and initial reports from the field, there are likely to be
additional violations. The position of the United States government is
to do everything in its power to bring to justice anyone who, by
action or inaction, is responsible for violations of the law of war.
A war crimes investigation by the secretary of the Army to record
Iraqi war crimes during the 1990-1991 Persian Gulf conflict resulted
in a detailed report. Steps have been taken to begin a similar
investigation and information collection effort. Ultimate disposition
will depend upon evidence collected, identified violations, and
individuals who come under U.S. control.
Thank you very much. At this time I'll turn the mike over to
Ambassador Prosper.
PROSPER: Good morning. I'd like to focus on some of the broader war
crimes issues and the violations we have been seeing committed by the
Iraqi regime, as well as what our policy is relating to these abuses.
I think it's safe to say during the course of hostilities we have seen
a systematic pattern of abuses committed by the Iraqi forces, to the
extent that we can call them textbook. There has been a complete
disregard for the law by the regime, as well as a complete disregard
for human life. The Iraqi regime, by blurring the distinction between
combatants and civilians, has caused numerous civilian casualties and
has put thousands or countless of Iraqi civilians in harm's way. The
list of violations that we have seen is long. The Iraqi people are
suffering as a result of these abuses.
We know that the Iraqi regime -- the forces have fired mortars and
machine gun fire upon civilians as they've tried to flee harm's way
and go into coalition forces' control. We have heard countless of --
reports of the use of human shields, where civilians have
involuntarily been put in a way -- in harm's way and at times killed.
We know that the Iraqi regime, by fighting in civilian clothes, has
blurred the distinction, causing additional harm.
The Iraqi forces have also placed military weaponry in civilian
structures, schools, hospitals, mosques and historical landmarks.
We've heard reports that ambulances have been used to transport death
squads and irregular fighters. We also know that Iraqi civilians have
been forced into combat at gunpoint or also by the threat of death to
their family and loved ones. We have received reports of summary
executions of military deserters. And as the battle for Baghdad
unfolds, we must brace ourselves for additional abuses, because we
know that this pattern of atrocities and war crimes is not new. The
regime has a long history for the past two decades of inflicting
violence and death upon its civilian population.
As a result, we have begun to catalogue the numerous abuses, both past
and present that have been committed by the Iraqi regime. Our troops
have been given the additional mission of securing and preserving
evidence of war crimes and atrocities that they uncover.
As President Bush has stated, war criminals will be prosecuted. The
day of Iraq's liberation will also be a day of justice. For any war
crimes committed against U.S. personnel, our policy is that we will
investigate and we will prosecute. We will also seek to prosecute,
where feasible, those who committed or ordered war crimes against U.S.
personnel during the Gulf War.
For any war crimes committed against Iraqi people during the course of
this conflict, we'll explore the range of options available, work to
ensure that justice is achieved for the Iraqi people. For past abuses,
past atrocities, it is our view that there should be accountability.
We will work with Iraqi people to create an Iraqi-led process that
will bring justice for the years of abuses that have occurred.
In short, it is our view that we must reinstate the rule of law within
Iraq. We must not tolerate the abuses of the Iraqi regime and deem
them as "business as usual." There will be accountability for these
abuses.
Thank you.
WHITMAN: Let's go ahead and start with a couple of questions from
here, and then we'll go and see if we can't get Qatar and then Kuwait.
Q: Ambassador: Can you explain a little bit more about how the
judicial or legal process might work in a post- conflict Iraq? You
said it would be an Iraqi-led process. Could you give us a little more
information on who might lead that, who the judges might be, and what
sort of form that court might take?
PROSPER: All right. Well, when we're discussing an Iraqi- led process,
our primary focus now is for the past abuses. There, what we have been
doing is working with Iraqi jurists, some members of the exile
community, to create a mechanism that will be able to address these
abuses. We will also, at the appropriate time, will have to engage the
internal personalities to determine what their views are regarding a
tribunal of sorts to address these past abuses. We recognize that
there will be a question as to whether or not the system within Iraq
has the capacity to address these abuses, therefore, we are prepared
to assist in any way we can by providing technical, logistical, human
and financial assistance. We also believe that the members of the
international community should also step forward and be prepared to
assist.
Q: Are there any plans for U.S. military tribunals or commissions to
address any of these matters or the possibility of international war
crime tribunals? And also, are there plans for trials for the very top
leadership -- for Saddam Hussein, for his sons and other members of
the top leadership?
PROSPER: I think what's important to understand here, to note, is that
there is a timeline between -- of abuses, if you will: The current
abuses and the past abuses. The past abuses, again, will be through an
Iraqi-led process. We believe that it must have some indigenous roots
in order to reinstate the rule of law. For the current abuses, the
crimes particularly against U.S. personnel, we believe that we have
the sovereign ability and right to prosecute these cases. There is a
range of options, ranging from military proceedings to our civilian
courts. We are of a view that an international tribunal for the
current abuses is not necessary.
PARKS: If I might add to that, there are three traditional statutory
bases for trials by the United States: courts martial, military
commissions, and federal district court. Obviously, there may be other
governments that have an interest as well. The government of Kuwait
suffered severely at the hands of the Iraqis in 1990, 1991, and it's
entirely possible that the government of Kuwait may have some interest
and having some of those persons turned over to them who were involved
in the occupation of Kuwait and Kuwait City during that time. So right
now -- our focus right now is on winning the war. And these are the
kinds of decisions we're -- basically in what I would call step one;
trying to put together -- collect the information, and then have the
national leadership make those types of decisions, no doubt with some
coordination with some of our coalition partners.
Q: Can I just follow up the issue of the -- are there plans for the
trial of the very top leadership?
PROSPER: Yeah, I think when we're, particularly discussing the abuses
of the past as well as the current abuses, we need to look at the
leadership. We have put, over the years, a sharp focus on the actions
of Saddam Hussein, his sons, individuals such as "Chemical Ali" and
others, because by the nature of the regime, we do understand that a
lot of the orders for the atrocities came from the top.
MODERATOR: You have a question, sir?
Q: Yeah, can you help us, we've been struggling with this one over the
last several days, and that is the issue of in uniform and out of
uniform. Just as a specific issue, American forces do operate out of
uniform in some settings. In Afghanistan, virtually all of the special
operators operated out of uniform. Why is that considered a war crime,
or is it only operating out of uniform in combination with other kinds
of behavior?
PARKS: Let me first make a slight correction. Most of the Special
Forces in Afghanistan operated in uniform, full uniform. There were
some who worked in what we referred to as a non-standard uniform that
was at least a partial uniform so they could be identified. They also
carried their arms openly. The basic distinction between those types
of operations where there was no attempt to conceal their combatant
status, and what we're saying with the Fedayeen Saddam in Iraqi is
that they are purposely concealing their combatant status, concealing
their weapons, wearing no part of a uniform, wearing no distinctive
device, in order to engage in acts of treachery or perfidy, as I
referred to earlier. They are purposely using the soldiers' -- the
U.S. soldiers' respect for civilians as a way to conceal their intent
and engage in treacherous killing of coalition forces. So there is a
big difference between the two.
STAFF: We'd like to take a question from Qatar, if you can hear us.
(Pause.) From Kuwait?
Q: My name is Kabir (ph). I'm a correspondent reporting from --
(inaudible). I have a question concerning those unlawful combatants,
Iraqi -- (inaudible).
STAFF: Could you repeat your question, please? We got cut off until
just the last two words.
Q: Repeat it? Okay, I'll repeat my question. It is concerning the
unlawful combatants from the Iraqi side. I would like to know how we
treat those unlawful combatants once they are taken into coalition
custody ? Do you grant them the status of POWs?
PARKS: When someone is captured, they go through a process of being
taken from the capturing unit back to a collection unit and ultimately
to the higher-level theater prisoner-of-war camps. And Article V of
the Prisoner of War Convention, it specifies that if there is any
doubt as to the status of a person, that person is entitled to
prisoner-of-war protection until his or her status has been
determined. That determination can be done by an Article 5 tribunal,
which is a tribunal, set up by the military to look at the facts and
circumstances of the capture and any other information. They then make
a determination or recommendation. Our past practice, in Vietnam as
well as in the first Gulf War, was that if at any time there remains
any doubt, that person will be entitled to prisoner-of-war status.
In the meantime, we use the Prisoner of War Convention as a basic
template for anyone that we hold. We provide them the basic cares and
protections that I laid out before, the best housing that we can give
them under the circumstances, adequate food, medical care, anything
else that they need, and visitations by the International Committee of
the Red Cross.
At this point in time, that decision as to whether or not persons are
members of the Fedayeen Saddam or whether they are members of the
Iraqi regular military has not been fully exploited, because of the
ongoing conflict. The British, I understand, have run some Article V
tribunals and in some cases have found that some of the people they
detained were civilians, and they have been released. So there is a
process for doing this.
Q: Would unlawful combatants have a different judicial channel? Do you
envision it different than what a soldier would have?
PARKS: That's a very good distinction, I think, that needs to be made.
The fundamental difference between an unlawful combatant and the
prisoner of war is that a regular soldier, if he kills an enemy
soldier, has committed a lawful act. An unlawful combatant, by its
term, suggests that this person did not have authority to go onto the
battlefield and engage in the killing of enemy soldiers or the attack
of military property. So if a person is determined to be an unlawful
combatant, he or she can be prosecuted for killing an ordinary
soldier. So there would be a judicial process for that person. What
that process would be is something that we've not determined as yet.
Follow on with the question, Kuwait.
Q: Do you have a number of how many prisoners we've taken in the
current conflict? And how would that compare with -- (audio break) --
PARKS: If I understood the question to be the number, I do not have
that number in front of me, but I believe it's available from Central
Command.
Q: Is it your judgment or is it the military's judgment that the
United States is now an occupying authority in those portions of Iraq
where U.S. forces have moved through? And does that make the United
States responsible for the welfare of the civilian population in those
areas?
PARKS: The term "military occupation" is one of those that's very,
very misunderstood. When you are an infantry company commander, and
you're told to take the hill, you physically occupy it. That's
military occupation with a smaller -- lower-case "m" and lower-case
"o". It certainly does not mean that you have taken over it with the
intent to run the government in that area. That's the very clear-cut
distinction, that until the -- usually, until the fighting has
concluded and is very conclusive, do you reach the point where
technically there might be Military Occupation -- capital "M", capital
"O" -- and a declaration of occupation is issued. That's a factual
determination; it's a determination by the combatant commander in
coordination with others, as well. Obviously, we occupy a great deal
of Iraq at this time. But we are not, in the technical sense of the
law of war, a military occupier or occupation force.
Q: Until hostilities cease?
PARKS: That's going to be a factual determination by the combatant
commander in consultation with others.
Q: Two things, really. What sort of penalties might apply to people in
senior positions -- senior military commanders, senior government
ministers, even Saddam Hussein or his family members, insofar as
they're involved in decision-making? And secondly, if you're not going
to go to any of the established international tribunals, are you
worried of creating the impression or creating an opinion worldwide
about victor's justice or even creating martyrs in some form to be
used as rallying points in the future?
PROSPER: Well, the range of penalties exists, from -- obviously from
incarceration to the death penalty. It's really dependent on the forum
that is ultimately chosen to deal with these issues. Regarding the
international tribunal, the only one that obviously is in existence is
now the permanent international criminal court, and that court does
not have jurisdiction over this conflict, because we are not a party
to the treaty and Iraq is not a party to the treaty.
But I think what we must recognize is that any state, when they fall
victim to war crimes, has the authority to prosecute these cases. So
it's not a victor's justice, it's a fact that by being victimized, if
you will, we can prosecute. For the crimes committed against the Iraqi
people, we are prepared to work with the Iraqi people, who will have
the sovereign right to address these cases as they occur. So it will
be, obviously, a collaborative effort, where we can prosecute the
crimes committed against us, our coalition partners have that same
right and authority, and for the Iraqi people, we are prepared to work
with them to achieve justice.
PARKS: Let me offer a couple of other points. I mentioned that we have
a statutory basis, three different ones, for prosecution of war
crimes. One of the reasons we have that is because we, in a long-term
practice, have prosecuted U.S. military personnel when they have
engaged in violations of law of war. I can speak personally from this,
having done this in Vietnam myself 35 years ago.
Now, if you go back to the history of the post-World War II trials,
you'll see that there were, in fact, several different levels. There
were the statutory courts at that time, or commissions, depending on
whether it was United Kingdom, United States, who was running those.
And they tried particular offenses that occurred at a specific level
against nationals from their country. For instance, there was an
Italian general tried in Italy by a U.S. military commission after
World War II for the murder of American prisoners of war. There were
international tribunals based upon the November 1st, 1943, Moscow
Declaration that ultimately established the Nuremberg tribunals for
the trial of the major criminals for which there was no geographic
specificity, and then there were some lower levels.
I would point out at the very lowest levels, the one that I identified
initially, any number of nations carried those out after World War II
-- Australia, New Zealand, China, just about every single one of the
Nazi-occupied territories in Europe. So there are a number of levels
there, but you go back to that lowest level because we all have courts
-- we have an obligation under the conventions to ensure respect for
the conventions and for the law of war. Part of our implementation of
that is to have tribunals available for prosecution of American
service persons should they commit a crime or for those who commit
crimes against U.S. military personnel.
STAFF: Can we go back to Kuwait, please?
Q: (Inaudible.)
Q: Is it customary to assemble a war-crimes body of law like this, or
do you have to wait until after victory, I think is what he said.
PARKS: Well, certainly there's a standing body of law. We can
identify, just as we have, U.S. statutes for civil/criminal violations
as well. Then you take the facts and look at them and compare them to
what you have as prohibitions under the laws of war. It's going to be
done on a case-by-case basis. We don't create a new a body of law
here. Now, if the question is are we now assembling something specific
for this conflict, I think it's too early to say. Again, our focus at
this time is to win, and begin the collection effort, and then make
determinations as to disposition as we move along.
PROSPER: I think another point is, it's not necessary to wait till the
end of hostilities to begin to look into war crimes violations and
prosecutions. I think one of our most recent examples is in the
international arena, if you look at the former Yugoslavia, there have
been prosecutions that have been occurring while a conflict has been
raging. So the law is there on the books and it can be used when the
parties are ready to use it.
PARKS: Question in the back.
Q: Yeah, I want to be clear on something you said earlier. Of all the
people in custody already, is there anyone who has been designated
something other than POW?
PARKS: To the best of my knowledge, the United States has not yet run
any Article 5 tribunals. I understand that process is under
development, and it will be. At this time, everyone is being treated
as a POW.
Q: And one follow-up to that. Was anyone -- anyone who was in custody
after the first Gulf War, was anyone prosecuted among the people in
custody after the first Gulf War?
PARKS: They were not. We found that of the individuals we had in
custody, we had 99.9 percent enlisted personnel. Most of those came
off the battlefield rather than from the occupation of Kuwait. The
Iraqi officer corps had somehow vanished and was not there, and that's
where the primary accountability probably would have been made,
particularly for those of the occupation force. So as a result, they
were given the opportunity to repatriate -- be repatriated, which is a
process we haven't discussed. It's something we work very closely with
the International Committee of the Red Cross to do.
We'll take  -- 
MODERATOR: From Kuwait.
Q: We have no further questions, ma'am.
MODERATOR: Thank you.
PARKS: Yes?
Q: Getting back to Iraqi armed forces have engaged in widespread and
systematic violation of the laws of war, does that mean that as a
military they are not entitled to the protections that the law of war
provides?
PARKS: No, it's -- one of the essential factors in the 1949 Prisoner
of War Convention is that regular military forces are entitled to
prisoner of war status, even if they violate the law of war. They can
be prosecuted for their violations, but they still remain entitled to
prisoner of war status.
Q: On the subject of Iraqi Television, two questions. First, is the
mere act of photographing a prisoner considered to be humiliating, or
is there something about the way that they were photographed? And
also, why did you -- several television networks around the world
aired that footage. Why did you feel the need to mention Al-Jazeera
also?
PARKS: I think it was just a statement of fact, on the last part of
that; not singling them out, it just happened to be that they were the
ones who I think were -- probably transmitted it most directly.
It's not so much the photography of a prisoner of war, particularly,
as you know, with our embedded media; every day, prisoners are being
taken on the battlefield. That is a statement of fact. When they are
photographed under those circumstances as they're surrendering, as
they're receiving medical care, that's a statement of fact. The
contrast is -- and in fact, our embedded media and others, I think,
have been superb in understanding our ground rules that you will not
take photographs in such a way, either hopefully to avoid any positive
-- specific identification of the individuals or in the way that would
be considered to be humiliating or degrading. The contrast here is
that you have the state-owned Iraqi television forcing prisoners of
war in their hands to appear before it for forced interviews, where
it's very clear this is an act of intimidation and humiliation. So,
there's a very delicate balancing, no question about it.
And as I said, I've been very pleased with the way the embedded media
have recognized this. I was watching one of the channels, I guess
about a week ago, when an Iraqi soldier came over the horizon with his
hands up. He was probably a good 150 meters away from the camera. The
embedded journalist and his photographer said, "Look! There's one
coming now." And the other one said, "Hey, can we take that picture?"
And he said, "Yeah, I think we can, because we can't identify the
person." So they understand the ground rules, they've been reinforced
to them, they -- and it's been quite good. But that is very
distinctive from: I have this prisoner of war in my hands, I'm going
to put them on the camera for one reason; that is, to coerce him into
making -- going through questions and to be used for propaganda
purposes.
Q: Now, once these -- if I can just follow on on that -- once these
people are in custody, if you decide to bring people here, put them in
Guantanamo Bay, is there anything in the law of war that would prevent
the U.S. from allowing somebody to go in and just photograph them in
their conditions? Or is that just a matter of U.S. policy to not let
people take pictures of prisoners down in Guantanamo?
PARKS: Well, let me back up to the first part of that. We have no
plans to send anyone to Guantanamo Bay. But second, as a matter of
policy and our interpretation of the prohibition in Article 13 on
humiliating and degrading treatment, we do not allow persons to go
into prisoner of war camps to take photographs of them.
Yes, ma'am?
Q: Me?
PARKS: Yes, ma'am.
Q: If I can follow on that. What is the difference? Can you explain
the difference, then, between the prisoners of war you're taking in
Afghanistan and sending to Guantanamo Bay and these prisoners?
PARKS: Well, there's a substantial difference in the types of
conflicts. What we
-- we are in the true, pure, traditional international armed conflict,
for which the conventions were written. Many of the persons that we
captured in Afghanistan were members of al Qaeda. This goes back to
one of the previous questions. They were unprivileged belligerents,
and they're not entitled to the complete protection of the law of war.
They have -- they're unprivileged belligerents.
At the same time, we are providing that template that I mentioned
earlier and providing basic protections for them: meals, lodging, all
the items they need -- soap, towels, toothpaste -- medical treatment
and visits by the International Committee of the Red Cross. The basic
distinction is the one I mentioned before, and that is, as
unprivileged belligerents, they do not have the legal right to attack
military personnel, whereas now we're engaged -- except for the
Fedayeen Saddam, we're now engaged with a regular military force.
Q: Could I follow up on a question from earlier?
PARKS: Yes.
Q: I want to make sure I'm totally clear on this. When it comes to
U.S. military uniforms, what is the bare minimum that is required to
be considered "in uniform"? Is just wearing one's weapons openly
enough?
PARKS: All right. Let me sort of break that in two places.
Ninety-nine-point-999 percent of the time, our forces are going to be
in full uniform. In those rare circumstances where you might have
someone in the military operating with indigenous personnel, which we
saw in World War II in Nazi-occupied Europe and places like that, the
basic requirements are that they be under the command of someone
responsible for the subordinates; wear some sort of distinctive
device, which can be a hat, a scarf, an armband, something like that,
an American flag on their body armor; and carry their arms openly; and
finally, most importantly -- this is where the contrast comes with the
Fedayeen Saddam -- carry out their operations in accordance with the
law of war. Does that help?
Q: So a hat, a scarf, an armband  -- 
PARKS: Are considered the types of things -- if it's something that's
distinctive to the forces with whom you're operating. Obviously,
you've got a group -- let's say an element of indigenous personnel --
they tend to wear some sort of distinctive device, for their own
identification of one another. And that's distinctive from what you
see on a traditional international armed conflict conventional
battlefield, where you have uniformed forces meeting uniformed forces.
The other factor there is one I mentioned earlier, though, and that
is, you are not intending to pose as a civilian.
Q: Going back to the list of countries, you said there is about 190
that are signed up to the conventions. Is Iraq one of those?
PARKS: Yes, it is.
Q: A different topic. Are there plans on any of the Iraqi leadership,
if the thought is that they haven't been killed but they're missing,
they may have escaped or they're still in hiding, are there plans to
hold trials without their presence?
PARKS: The United States, as a matter of policy, generally has not
carried out trials in absentia.
Yes, in the back.
Q: There are reports of some foreign fighters being involved in the
conflict in Iraq, some actually in uniform, although they may not be
Iraqi uniforms. Does that pose any particular legal issue here?
PARKS: It's going to be -- that's something we'd have to answer on a
case-by-case basis. If they're fighting in Iraqi uniforms, that's
going to be one of the key elements; if they have some sort of
association with the Iraqi military. As you may know, in a number of
conflicts in the past, for instance, in World War II, we had U.S.
forces who joined the Royal Air Force before the United States was in
the conflict. If they had been captured, they would have been treated
-- entitled to prisoner of war status. So it's going to be factually
dependent on what they're doing at the time of the capture, how
they're dressed and what they're doing.
Yes, sir?
Q: And just to clear up a couple of points. If you are an Iraqi
civilian and American forces break their way into your home and you
open fire on them or they
-- I mean, they regard American forces as invading. So if you open
fire on American forces and you've been out in your garden, or
something, is that -- are they non-combatants, are they unprivileged
belligerents for opening fire on forces that are breaking their way
into their homes?
PARKS: It's, again, going to be factually determined. If this person
has been totally oblivious to the fact that there's been a war going
on around his house for the last two weeks, and he happens to be in
there and jumps up with his weapon and opens fire, he or she is at
risk, obviously. But second, we would go through the factual
determination of the Article V Tribunal as to why this happened and
the way it happened.
I did hear in the Central Command press briefing this morning that
leaflets are being dropped to the Iraqi population saying, "If you
have a weapon, put it down, stay away from it so we do not mistake you
for an Iraqi Fedayeen Saddam." So, we're doing the best we can to
convey to them, do not involve yourself in the hostilities.
Q: And just so I understand, there is not a new body of law or
procedures that you are trying to develop to deal with this particular
conflict; you will fall back on historical precedent as much as you
can?
PARKS: It's not only historical precedent; it is existing law.
Q: And then finally, in your prisoner-of-war holding camps now, are
you sorting individuals either by rank or by unprivileged belligerents
or people in uniform? Is there any kind of sorting and identification
that you are doing?
PARKS: I don't have information as to what's being done at this time.
I can tell you that generally when you go through this movement back,
collection, sorting process -- and let me say that a part of that is
getting as full an accounting of the person that you have as possible
so that we can take that information and forward it to the
International Committee of the Red Cross, because we want a full
accounting of our prisoners of war as well. In that process, the
Geneva Convention requires a separation of officers from enlisted.
Now, whether there will be later on, as I indicated, this Article V
screening when there's doubt as to someone's status, then there may be
some additional separation. At this point in time though, I think
right now the idea is to provide the protections required by the
conventions, the medical treatment required, and then move into this
Article V Tribunal phase in the next week or so.
Q: To your knowledge, has Iraq yet allowed the ICRC to meet with any
of the coalition POWs?
PARKS: It has not. And I think as I mentioned in my statement, in the
course of the 1991 Gulf War, the Iraqis did not permit the ICRC to see
U.S. and coalition prisoners of war in their hands until the war had
ended and 24 hours out from the time of repatriation. The ICRC then
handled the repatriation of coalition prisoners of war back to their
forces and did a superb job.
Q: Could the fact that the United Sates launched this invasion without
U.N. approval -- could that undercut your legal standing for
conducting a war crimes tribunal?
PARKS: No. And the law of war, all of it, has taken the traditional
view that it doesn't make any difference who started the war. What we
do is gauge you upon the conduct of your operations on the battlefield
itself. You could be totally justified in what you're doing; if your
forces violate the law of war, it's still a violation of the law of
war. The four 1949 Geneva Conventions specifically state in there that
it doesn't make any difference who started the war, who is the party
who was first off or what have you; that in any case, the conventions
will apply. That's to sort of keep people from saying, "Well, he
started it, and therefore, I don't have to follow the law of war."
Regardless of who started the conflict, each side has an obligation to
follow the law of war.
Yes, sir?
Q: Do you happen to know what kind of capability U.S. forces in Iraq
have for holding POWs? Does each combat unit have a POW capability?
Are we anywhere near capacity on that?
PARKS: Well, let me go back to what we did in the first Gulf War, as
it is the best example. We have a particular unit, the 800th MP
Brigade, that went in and built two camps, nicknamed Bronx and
Brooklyn, that were to hold 50,000 prisoners of war each in record
time. And as I said, our capacity went up to 86,000 some-odd. The same
capabilities are being used today.
As I mentioned, when a soldier captures an Iraqi soldier, he is
trained to turn him over to his superiors -- disarm him, turn him over
to his superiors, move him back to the initial collection point, which
may be at the battalion level. From the battalion level, they could be
moved back to the division or corps level, ultimately -- and at the
corps level, they will then go through the initial processing. In the
old days, this was soldiers with little tags and stubby pencils.
Today, it's laptop, which is what we used in the first Gulf War. After
that initial processing, they are then moved back to the theater
collection point, and that's where the detailed processing goes on. We
have that initial processing at corps level, too, because we have a
split in the route they will take. Those who are wounded or requiring
medical care go one route. Those who are otherwise able- bodied go --
continue on back to the straight prisoner of war camp.
Once the theater processing is accomplished, those reports are sent
back here to the National Prisoner of War Information Center, which is
run under the Army Operations Center. Those lists are all collated,
put together and we ensure that we have proper identification, the
best information we can get from that. And thereafter, that
information is forwarded by the United States government to the
International Committee of the Red Cross.
Q: Is it safe to assume that whatever judicial process the Iraqis
develop here in a post-war situation, that it will have fairly heavy
American input? Would you try to use the body of Iraqi law in order to
conduct any sort of criminal proceedings?
PROSPER: Well, the degree of input has yet to be determined, because
what we have been doing is working with the opposition group, the
exiled community of jurists, and we have been able to reach a basic
understanding of what the requirements are and what a specialized
approach or chamber could look like. But what has yet to occur is
discussions with some of the internal personalities, who may have
additional ideas or opinions on the framework. But I think it's safe
to say that the -- any process that is created can rely upon the body
of international law as well as the body of Iraqi law that exists. So
I expect that once we move into the post-conflict setting, a lot of
these issues will become clearer, we'll see the degree of U.S.
participation or international participation that is necessary.
PARKS: I understand that Central Command is up now. They have a
question, but it's audio only.
Q: Gentleman, Paul Martin here, from World News and Features and the
Washington Times. I'm interested to know two things. One is the role
of the gentleman they now call -- well, Uday -- well, let's go to
Uday. Uday Hussein, obviously, was in charge of the occupation of
Kuwait last time around, and has been responsible for the irregular
forces whose behavior in Basra and others has given rise to
suggestions that his troops are behaving in an illegal way. And are
you targeting him for war crimes tribunals? And will you be looking
back at his record in Kuwait, or just looking at this current war?
That's the first question.
Secondly, looking at the images we've seen of prisoners being taken
there, hoods have been put over their heads when they've been
arrested, and they seem to have been disoriented or pushed about a bit
in the process of taken away. Is that legal or illegal?
PARKS: Let me take two parts of that. The first part, we do have a
very detailed record of our investigation that was conducted in 1990,
'91, of the Iraqi occupation of Kuwait, and that certainly is
available, should this individual be in our custody or the custody of
others at the end of the conflict. Second, on the hooding, it is a
standard procedure in most militaries to either blindfold or hood
prisoners at the time of capture because every soldier is trained that
the best time to attempt escape is at the time of capture. So the idea
is, first, not to give them the opportunity to escape, and second, not
to have them -- give them the opportunity to collect military
intelligence in the event they should escape. Obviously, the hooding
is one method for doing that; the other I mentioned is blind-folding.
They obviously can still breathe. It's not a matter of trying to abuse
them in any way, it's a standard security procedure for most
militaries, if not all, upon capture.
Ambassador?
PROSPER: And also, since '91, we have been looking at the actions of
the various members of the regime, including Uday. For the past few
years, we have done additional work of documenting his role in the
abuses that occurred throughout the Gulf War and throughout the term
of the regime. We will obviously be looking at any actions that he had
during the course of this current conflict. But I think it's safe to
say that he is among those, the top tier people that we're most
interested in, and seeing accountability for his actions.
MODERATOR: Okay, this will have to be your last question.
Q: Are either of you able to speak to this talk about whether or not
tear gas, the use of tear gas by U.S. forces would be a violation of
any of the laws of war or chemical weapons conventions? Is that --
PARKS: I can speak to that. The 1993 Chemical Weapons Convention
prohibits the use of riot-control agents as a method of warfare. It's
not a precisely defined term. The United States has an executive order
that suggests that riot-control agents can be used for defensive
purposes to save lives. That's a very long-standing executive order.
It gives a few examples in there. One is combat search and rescue. The
others are rioting prisoners of war. A third example is, if in fact an
enemy placed civilians in front of it, to advance on your lines. There
is a very careful process for the decision as to whether or not riot
control agents may be used on the battlefield, requiring presidential
authorization, which may be delegated to the combatant commander. But
it's not something that we do lightly.
MODERATOR: Thank you very much. We appreciate your coming.
(end transcript)
(Distributed by the Office of International Information Programs, U.S.
Department of State. Web site: http://usinfo.state.gov)