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Distinguishing Soldiers and Non-State Actors: Clarifying the Geneva Convention's Regulation of Interrogation of Captured Combatants Through Positive Inducements

56 Pages Posted: 23 Sep 2008  

Tung Yin

Lewis & Clark Law School

Date Written: September 1, 2008

Abstract

While attention has understandably been focused on the coercive tactics used to question detainees held at Guantanamo Bay and elsewhere in secret prisons, much less has been written about the use of positive inducements to bribe detained combatants into cooperating with their captors. For the most part, commentators have suggested that the Geneva Convention raises no obstacles to the use of positive inducements, even against prisoners of war. While I agree that positive inducements are permissible against members of non-state groups such as al Qaeda, I argue that the Geneva Convention should be read as prohibiting the use of such inducements against members of the armed forces of nations, because doing so involves tempting detained POWs into betraying their home nations. The crux of my argument is based on the Geneva Convention's restrictions on compelling or seeking volunteers from POWs to perform labor that materially assists the war effort against their home countries. It seems perverse therefore to allow them to volunteer potentially critical military information. I further distinguish positive inducements to commit espionage in non-armed conflict situations on the ground that the induced betrayal is the same, but the exploitation of detention and captivity is not. The conclusion that the Geneva Convention prohibits the use of positive inducements against POWs, however, does not mean that positive inducements are barred against detainees who are members of non-state groups. Here, I argue that the non-state group's claim of its members' loyalty is not entitled to the same degree of protection as a nation's claim to its citizens' loyalty. While this conclusion may appear circular in privileging nations, it is a structural consequence of the restriction of the right to use military force. Finally, I consider whether positive inducements could be expected to work against suspected al Qaeda members.

Keywords: Geneva Convention, interrogation, detainee, Guantanamo, terrorism, treason, espionage, inducement

JEL Classification: Z00

Suggested Citation

Yin, Tung, Distinguishing Soldiers and Non-State Actors: Clarifying the Geneva Convention's Regulation of Interrogation of Captured Combatants Through Positive Inducements (September 1, 2008). Boston University International Law Journal, Vol. 26, 2008; U Iowa Legal Studies Research Paper No. 08-42. Available at SSRN: https://ssrn.com/abstract=1270089

Tung Yin (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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