Legal And Ethical Issues – What Is Wrong With Taking Photographs of Prisoners In A Conflict?

Israeli soldier posing in front of Palestinian prisoners

A shameful controversy has recently crossed over the borders of Israel and made a splash in the media worldwide: a former Israeli soldier, Eden Abergil, had posted on her Facebook page photographs of her posing with bound and blindfolded Palestinian prisoners. And to add insult to injury, Ms. Abergil does not understand what is “wrong” with her posting the pictures, claiming that she had published those pictures were taken “in good will” and that she had no idea that they would be “problematic.”

The Israeli Defense Force (IDF) has quickly reacted to what could be another PR nightmare for Israel at a time when Israel really does not need any more of those. The problem is that the Breaking the Silence group, a very interesting NGO that gathers testimony from IDF veterans, has already published many other photos of Israeli soldiers posing next to Palestinian prisoners or even corpses, claiming that such behavior is the norm, not the exception.

In a world where the media – in the larger sense – is everywhere, the question of publishing photographs and other images of conflicts and their different facets are regularly the subject of controversies. The biggest recent scandal that we have in mind when seeing these pictures is the Abu Ghraib scandal in 2004. It goes without saying that in many ways, the two don’t compare: whereas the photographs coming out of Abu Ghraib were absolutely horrifying and gruesome, Ms. Abergil’s photographs remain relatively decent. She “only” poses next to prisoners, does not appear to touch them or to taunt them, let alone abuse them sexually. The Arab media, by claiming that this was Israel’s Abu Ghraib, are largely exaggerating.

Saddam Hussein being examined by a medic following his capture, photo by AP

Where the two do connect, and in a significant way, is that – even though to a different extent – they both violate the notion of human dignity, and in the context of International Humanitarian Law (IHL) and the Law of Armed Conflicts (LoAC), that is a serious problem. In that sense, this relates to the then-well criticized video (image on the right) of Saddam Hussein being examined by a medic following his capture.

As The Christian Science Monitor notes, armies such as the IDF or the US army have strict rules concerning this kind of behavior. More generally, the 1949 Third Geneva Convention is equally clear about protection prisoners’ dignity.

Article 14 states that: “Prisoners of war are entitled in all circumstances to respect for their persons and their honour.

And for those that would argue that the people in those photographs, whether Saddam Hussein, the detainees at Abu Ghraib or the prisoners in Ms. Abergil’s photos, do not benefit from Prisoner of War Status, there’s Common Article 3 of the Geneva Conventions that states (emphasis is mine):

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Both the US and Israel have signed and ratified the Geneva Conventions, so that law applies to them. Common Article 3 is also considered to be customary international law.

The reasons behind this international protection of the personal dignity of prisoners held in a time of conflict seem obvious: first of all, it must be mentioned that the protection of human dignity is – and this is similar to human rights law – at the heart of international humanitarian law. Even though human dignity is not protected the same way as in human rights law due to the differences in purposes, the general idea behind IHL is fairly Rousseau-esque: you make war on the soldier, not the individual. And once the individual is no longer active in the conflict, you treat him with the respect and the dignity he deserves. That’s the principled aspect, and it’s of the utmost importance that armies respect it.

There are also the more practical aspects regarding discipline of soldiers and fear of retaliation by enemy forces. This is in the most immediate and practical way a major PR issue for the IDF (and previously the US armed forces) that can galvanize its enemies and make for a major recruitment tool.

Perhaps what is most disturbing about this is Ms. Abergil’s lack of understanding of the gravity of her actions. They’re innocent pictures of her posing with Palestinian prisoners who do not even know they are being photographed, or so she pretends. Surely there’s no harm in that! Well, Ms. Arbergil, you’re quite wrong. Whether they know or they do not know that they are being photographed, the gesture of you posing with them, making jest of their situation for your own personal pleasure is an intolerable infringement on their right to their dignity.

So what consequences for Ms. Abergil? It’s hard to say, as she is no longer active in the IDF. That being said, punishment could come in a different form: as Robert Mackey writes in the New York Times’ TheLede Blog, other soldiers have become haunted with such acts later in life. She has been removed from reserve service and stripped of her ranks by the IDF, however.

Her reaction as of now?

“The army let me down,” Abergil told Ynet Monday. “I risked my life and was wounded…and now I’m sorry that I served in such army.”

Ms. Abergil? You need to get yourself a communication expert.

Slightly related to this whole situation, I remember watching a video a while back on Abu Ghraib. It was a TED Conference, and it was fascinating. The overall theme was: how do good people go bad, without realizing it? I found the link again, here it is. It’s a bit over 23 minutes, but definitely worth watching:

I prefer finishing my posts on a good note, so here’s my good note of the day: a Company of the IDF has decided to do something differently from now – treat the Palestinian civilians with politeness. You’d think this would be the rule and not the exception, and I’m slightly exasperated that this is considered a “new development” but, it’s still a step in the right direction.

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