Beyond Arm Bands and Arms Banned: Chaplains, Armed Conflict, and the Law

Abstract

The primary objective of this article is to provide a comprehensive, up-to-date examination of the special legal status, treatment, benefits and responsibilities of chaplains who serve their God and their nation in the midst of armed conflict.

Part I this article focuses upon the legal status of chaplains in armed conflict: first, the basic law of armed conflict; then, the historical role of chaplains in the U.S. military and how that role has dramatically changed through our nation’s history. Thereafter, the analysis shifts to the actual status of all nations’ military chaplains under international law, primarily under the Geneva Conventions of 1949. Next, the article highlights two of the methods of distinction established in the Conventions for setting chaplains apart on the battlefield. Finally, the policy restrictions adopted by the U.S. armed services for the purpose of protecting the status of U.S. chaplains are examined.

Part II of this article focuses upon the legal treatment of chaplains in armed conflict. First, the discussion explores the standard of treatment of chaplains in the battlespace. The remainder of this section examines the standard of treatment of chaplains upon capture, primarily in prisoner of war camps, to include an explanation of the duration of any such retention. Additionally, it highlights how chaplains are entitled to prisoner-of-war benefits, but are also subject to internal discipline systems of the detention camp. The focus then shifts to the performance of chaplains’ spiritual duties in camp, including the special facilities guaranteed in the Conventions to help perform those duties. Finally, examination shifts to the U.S. Code of Conduct and its application to U.S. chaplains retained by the enemy.

Part III of this article focuses upon the domestic role of U.S. chaplains in armed conflict. Prior to considering the multiple roles, each chaplain must fully understand the status and treatment standards adopted by the U.S. armed forces to implement the obligations under the Geneva Conventions. Thereafter, scrutiny shifts to the three key roles developed for U.S. chaplains in U.S. detention facilities: advisers to camp commanders; ministers to enemy detainees; and conduits between the two interests. Finally, the article explores a potential conflict of interest arising in the performance of the roles involving the penitent-clergy communication privilege. Throughout the examination of these domestic roles, international law obligations, domestic policy guidance, and the practical application of both by U.S. chaplains recently assigned to Camp X-ray in Guantanamo Bay, Cuba, are highlighted.

Keywords: Law of Armed Conflict, Law of War, Armed Conflict, Chaplain, Military