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Modern Law of Warfare Instituted During the Civil War

By Gerry J. Gilmore
American Forces Press Service

WASHINGTON, April 7, 2003 – President Abraham Lincoln instituted the modern law of war practiced by U.S. troops and most nations' militaries today.

Lincoln directed Professor Francis Lieber to write a code of wartime conduct for Union forces during the American Civil War, W. Hays Parks told Pentagon reporters today. Parks is the special assistant to the U.S. Army Judge Advocate General for law of war matters.

The Lieber Code "really formed the foundation for everything we have in our modern law of war today," Parks pointed out, noting that the code was published as U.S. Army General Orders No. 100 in 1863.

Lieber, German-born American professor of history, political science and law, researched world military history in creating his rules of warfare, Parks noted.

"And I think that's a very important point here," he said, "to understand that this is the way nations feel that they should conduct military operations."

Since the publication of the Lieber Code, there have been a number of other initiatives to codify proper conduct on the battlefield, Parks noted, such as The Hague conventions in 1899 and 1907.

Parks said a number of Geneva Conventions held over the years developed rules for the protection of war victims.

Today, he noted, there are four 1949 Geneva Conventions. The first deals with military wounded and sick on the battlefield; the second, with military wounded, sick and shipwrecked, Parks said.

The third refers to prisoners of war and their protection, he continued, and the fourth deals with enemy civilians or civilians in enemy hands.

"They are still in effect," Parks pointed out.

The 1949 Geneva Conventions were negotiated after World War II, Parks remarked, noting that 190 out of 194 nations in the world today are parties to them.

"That includes the United States and Iraq," he emphasized. In fact, he noted, more governments are signatories to the Geneva Conventions than there are member nations of the United Nations.

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," Parks explained. In the case of POWs, he added, this can happen through capture or surrender to enemy military forces.

POWs must be humanely treated, Parks pointed out, noting that any action or negligence causing the death of a POW or endangering his or her health is prohibited and is a serious violation of the convention.

Also, POWs must be removed from the battlefield as soon as feasible and at all times be protected from physical and mental harm, Parks said, adding that POWs must also be provided adequate food, shelter and medical aid.

POWs must be protected against acts of violence or intimidation, he pointed out, as well as insults and public curiosity.

Under questioning, POWs are required to provide only their name, rank, serial number and date of birth, Parks asserted. They may not be forced to provide any other information.

POWs may not be subjected to physical or mental torture, he emphasized, noting those who refuse to answer questions may not be threatened, insulted or exposed to unpleasant treatment of any kind.

Subject to valid security issues, POWs are entitled to retain their personal property and protective equipment, Parks remarked. These items, he said, may not be taken from a POW unless they're 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, Parks pointed out. All POWs must be protected against assault including sexual assault.

Female POWs must be treated with regard due to their gender and, like all POWs, are entitled to respect for their person and their honor, he explained.

The United States and Iraq also are parties to the 1949 Geneva Convention on the Wounded and Sick, Parks noted. This convention, he pointed out, also deals with the protection and respect for enemy and dead on the battlefield. Warring sides are required to protect the dead against pillage and ill treatment, he noted, and to ensure that the dead are honorably interred, their graves respected.

Identity and other information, Parks noted, are provided to the International Committee of the Red Cross.

Parks said American and coalition forces in Iraq conduct all operations in compliance with the law of war. And he pointed out that there's no other country that 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 all Iraqi POWs under each of the Geneva Conventions, Parks noted. And he said such plans are woven into current allied operations.

America and its coalition partners detained 86,743 Iraqi POWs during Operation Desert Storm in 1991, Parks pointed out. These Iraqi POWS "were given all the protections required by the Geneva Conventions," he noted.

U.S. and coalition forces in Iraq today "are providing, and will continue to provide, captured Iraqi combatants with the protections of the Geneva Conventions and other pertinent international laws," Parks emphasized.

Iraq has not yet allowed International Committee of the Red Cross officials to visit with American and coalition POWs it now holds, Parks stated. He noted that American POWs captured during Operation Desert Storm weren't released by the Iraqis until the war had ended.

However, arrangements have been made to enable ICRC representatives to visit with Iraqi POWs held by U.S. and coalition forces, he said.

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Click photo for screen-resolution imageW. Hays Parks, special assistant to the Judge Advocate General of the Army, discusses issues related to the Geneva Convention, the laws of war, the handling of prisoners of war, and war crimes with reporters at the Pentagon on April 7, 2003. DoD photo by R. D. Ward.  
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