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More than 25 years have passed since Americans have worried about large numbers of U.S. troops being captured. But before the war on terrorism is over, American families might again know the anguish of their sons and daughters being held prisoner. Among the few protections a captured soldier has are the rights accorded to prisoners of war under the Fourth Geneva Convention and the laws of war. These rights, which command the respect of the entire civilized world, require that POWs be treated according to certain minimum standards. They exist to ensure that captured troops are provided food, shelter and medical care similar to that of their captors and that prisoners are not abused or exploited — either physically or psychologically. Even as America sorts captured Taliban and al-Qaida troops into POWs and “unlawful combatants,” Americans would do well to remember why the United States has long championed the rules of war. STRONG SELF-INTEREST First, apart from its legal obligations, the United States has a strong self-interest in advancing the laws of war. A leader in fostering the Geneva Conventions in the last century, America today conducts military operations throughout the world. Our status as the world’s sole superpower only heightens the need for us to promote the rules of war. If the United States sets the precedent that officials can classify enemy combatants captured on the battlefield as unlawful combatants based on war zone interviews — rather than having a hearing or “competent tribunal” to resolve questionable cases, as the Geneva Convention directs — then America will have undermined the status of these protections as legal rights and rendered them discretionary. Adequate food, shelter, medicine and protection from abuse for American POWs should not be subject to the discretion of our enemies. Without U.S. allegiance to all the rules of war, the protections offered by these rules will be jeopardized. Nor does it matter that our enemies may not follow these rules. Historically, America has provided captured enemy troops far better treatment than that afforded American POWs. In World War II, abuses of prisoners by Japanese Imperial forces were widespread and condoned — and in many cases ordered — by higher authorities. Japanese forces resorted to vivisection, mutilation and even cannibalism of prisoners. The United States and its allies knew of the atrocities and protested, but the outrages continued. Despite the barbaric treatment of Allied prisoners, America did not retaliate and continued to offer captured Japanese troops the rights and status of POWs. Second, even when the laws of war have not prevented abuses against POWs, they have been used to punish violators. In the Tokyo War Crimes Trial, for example, a post-World War II international military tribunal convicted former Prime Minister Tojo of a series of violations of the laws of war. Among these was his failure to “disapprove of [the] shocking” practice by Japanese forces of treating Chinese volunteer soldiers as “bandits” and denying them “the status and the rights of Prisoners of War.” Tojo was executed. Third, there is no need to deny captured enemy forces the status of POWs in order to hold them prisoner for the duration of the war on terrorism. Both historical practice and the terms of the Fourth Geneva Convention make clear that belligerents can be held as POWs until the “cessation of active hostilities” — however long that may be. In addition to recognizing captured enemy forces as POWs (unless they are convicted criminals or terrorists), we must ensure that these captives are given the protections afforded by the rules of war and the Fourth Geneva Convention. Our failure to live up to the standards of the convention would needlessly provide our enemies with propaganda about allegedly cruel and lawless Americans. Even worse, it may embolden them to treat U.S. forces inhumanely. We must not hand our enemies a means to mask their own cruelty by lying about us. Over the past 20 years, the idea that human rights are universal has become increasingly widespread. The United States must continue to be at the forefront of promoting these rights in its first war of the 21st century, just as it did during all of its wars in the 20th century. If not, America may suffer far more than its captives will. Philip A. Lacovara and Peter C. Choharis are attorneys in the New York and Washington, D.C., offices, respectively, of Chicago’s Mayer, Rowe & Maw.

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