Kidnapped or Captured?
by Jerry Gilio
June 19, 2006

The Bush Administration's policy of playing fast and loose with the rules may have dire consequences for two U.S. soldiers who have fallen into enemy hands.

According to CNN, "An al Qaeda-affiliated group on Monday claimed it kidnapped two U.S. soldiers south of Baghdad, although the captives were not named." The report characterized the action during which the soldiers were taken as "an attack on an area checkpoint".

Merriam-Webster defines a prisoner of war is "a member of the armed forces of a nation who is taken by the enemy during combat". This certainly describes the missing soldiers. If these men are prisoners of war, they are entitled to the protections of the Geneva Conventions.

Now it's possible that the use of the word "kidnapped" could be a translation error. The "al Qaeda-affiliated group" may not have used the actual word kidnapped. But let's assume they did. The definition doesn't hold water if they are the enemy in a legal war. Kidnapping is taking someone by illegal force. These men should be considered prisoners of war.

An important aspect of the Geneva Conventions is that they don't exist to protect enemy prisoners that we've captured. They exist to protect our soldiers who the enemy has captured. It can be reduced to an agreement that "I'll treat your men humanely if you do the same for mine".

We should be able to insist that our men are prisoners of war and treated accordingly.  But this is where Bush has cut our legs out from under us. He doesn't consider men that we capture during combat in Iraq prisoners of war. If he did, they'd also have to be treated in accordance with the Geneva Conventions. They aren't.

If you doubt this, you may want to read the Geneva Conventions. I was surprised with just how much protection they provide for prisoners. Convention III, which deals with treatment of prisoners of war, states, "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind." You've seen the photos. You've heard the stories. Is this how we've treated our prisoners?

One can make the argument that the enemy has no regard for the law. This is certainly true to a significant extent. But the Geneva Conventions are as much about self-interest as they are about the law. Our behavior has eliminated any incentive for the insurgents to treat our captured soldiers humanely. They don't have to take pause and consider that if they treat our men cruelly, we may start to do the same. We already have.

Now two young soldiers may pay the price for the Bush Administration's policies. If CNN is right, they're already considered kidnap victims and not prisoners of war.

On a related note, I learned something important about treaties, like the Geneva Conventions. According to Article VI of the Constitution, "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." So any American who violates a treaty we've signed is violating U.S. law as well.

Copyright © 2006