From President Bush down, American officials have proclaimed their determination to punish everyone involved in the apparent humiliation and torture of Iraqi detainees. In Britain, a high-level investigation is also underway into stories of abuse by British troops. There is no doubt that the allegations involved, if proven, would represent serious violations of the laws of war, punishable by court-martial. But under international law, responsibility for these actions may go further than coalition leaders would like to admit.

Rules about the treatment of people captured during wartime are one of the most important parts of the law of armed conflict. The most detailed provisions relate to the rights of prisoners of war, who benefit from a set of legal requirements that are far-reaching and in parts quaintly old-fashioned (for instance in their attention to the separate facilities due to officers and other prisoners). By contrast, the rules for the treatment of detainees who are not entitled to prisoner of war status are more basic. Still, these people are entitled to certain ?fundamental guarantees? including the right to be treated humanely and not to be subjected to physical or mental torture, or to humiliating and degrading treatment. The acts apparently committed by American military police in the Abu Ghraib prison are self-evidently breaches of this essential principle.

If the allegations against British soldiers are substantiated, there is another reason why the authorities should ensure that those responsible are prosecuted. Torture and degrading treatment ? especially if they are part of a repeated pattern of behaviour ? are war crimes that come within the jurisdiction of the new International Criminal Court, which Britain has ratified. If the Court's prosecutor decided that the British government was not making a good-faith effort to look into these allegations, he could move to launch his own investigation.

Three American reservists have been recommended for court-martial for carrying out physical and sexual abuse of Iraqi prisoners. Three more are currently undergoing preliminary hearings. According to U.S. news reports, eleven further soldiers (including the general who had overall responsibility for the prison) have been suspended pending investigation. But the questions raised by the horrifying revelations from Iraq are not limited to the actions of the individuals directly involved. Their superiors or other military personnel who condoned their actions may also be accountable for allowing or encouraging such obviously illegal practices.

Under the principle of command responsibility, officers are liable for crimes committed by soldiers under them if they knew or should have known that they were taking place and did nothing to stop them. According to the internal U.S. Army report on Abu Ghraib, leaked to the New Yorker, the criminal abuses at the prison were ?blatant and wanton?, suggesting that little attempt was made to hide what was happening. The report also said that prison guards had been urged to ?set the conditions? for military interrogations. Some of the accused or suspended soldiers have told journalists or relatives that they were encouraged in their actions by more senior Army intelligence officers or C.I.A. agents (as well as private security contractors working with them) who effectively ran the special cellblock where the abuses allegedly occurred.

In a letter home earlier this year, Staff Sgt. Chip Frederick, one of the soldiers charged, said he had questioned some of the things that he saw taking place, and was told, ?This is how military intelligence wants it done.? Frederick 's lawyer is preparing to defend his client at court-martial by saying that he is being scapegoated for a greater failure of leadership. ?The intelligence community forced them into this position,? the lawyer, Gary Myers, told the New York Times. This argument of superior orders would almost certainly not prevent Sgt. Frederick being held legally responsible for his actions, but it does suggest that others might share his guilt.

Military intelligence officers could be court-martialled for violations of army rules, while C.I.A. agents and private contractors could be prosecuted under U.S. federal law, which makes all U.S. citizens criminally liable for war crimes they commit whether in the United States or overseas.

More generally, the laws of war require that all countries take the necessary steps to ensure that they are respected. All military personnel should receive training to understand the parts of the law relevant to their missions, and there should be clear rules and procedures established. It seems clear that the U.S. Army ignored these obligations in its handling of Iraqi prisoners. Some of those assigned to work in Abu Ghraib say they received no guidance in how to deal with the detainees. According to one soldier who spoke to the Los Angeles Times, there were no standard operating procedures and no training. Indeed, the fact that army police were apparently so happy to pose for photographs depicting their exploits may indicate that they were not aware of the gravity of what they were doing. The U.S. Army has belatedly ordered an inquiry into the training of reserve soldiers, focusing on those in military police or intelligence units.

These apparent instances of physical and emotional abuse ? if true ? would clearly be the most serious violation of the laws of war committed by coalition forces against prisoners in Iraq . But already there are other serious problems with the detention policies of U.S. forces in particular. The Geneva Conventions set out clear-cut rules that occupying forces must observe in handling civilians they believe to pose a security threat. If necessary ?for imperative reasons of security?, they may be interned ? but detainees should have the right of appeal with the least possible delay, and with regular (ideally six-monthly) review. Civilians may also be detained if they are suspected of having committed crimes like sabotage or attacks on occupying forces ? but they must be informed of the charges against them and brought to trial ?as rapidly as possible.?

American forces are estimated to be holding between 10,000 and 12,000 detainees in Iraq . The U.S. Army says it has set up a number of appeals panels and that it has reviewed around 1,200 cases, but this seems to fall well short of its legal obligations. Under the law, occupying forces must also provide information about everyone they are detaining. But people who are picked up for interrogation by American forces seem often to be held incommunicado for long periods, with no information about their whereabouts revealed.

British forces, who are in charge of areas where there has been less resistance to coalition rule, have apparently complied far more closely with the obligation to account for everyone they detain.

At the root of all the problems with military detention in Iraq is the way that interrogation and intelligence gathering have become a dominant priority for U.S. forces. Standard military procedures for the treatment of enemy soldiers do not allow any coercion to solicit information ? under the law, captured prisoners of war must reveal only their name, rank and serial number. But when armies are fighting suspected terrorists, who are not entitled to the rights of POWs, this blanket prohibition against pressuring captives to talk does not apply. It is standard doctrine among U.S. interrogators that people are most likely to ?break? if they are kept in conditions of dependency and vulnerability. Reinforced by the overriding objective of preventing future acts of terror, this approach naturally creates a climate where restrictions on the abuse and humiliation of captives are skirted or openly flouted.

Similar factors may be behind allegations of brutality that have surfaced against some British forces in Iraq . This week a group of Iraqi families who claim their relatives were killed by British forces are lodging papers in the High Court in London seeking a judicial review of the soldiers' action under Britain's Human Rights Act.

It is not only in Iraq that the emphasis on intelligence gathering has led to apparent brutality against military detainees. The American base at Bagram in Afghanistan has acquired a reputation for abusive interrogations of suspected al-Qaeda members. Two prisoners there were said by military pathologists last year to have died through ?homicide? but the U.S. Army has provided no information about any subsequent investigation. Notoriously, the CIA's former counterterrorism chief Cofer Black has been quoted as saying about interrogation techniques that ?after 9/11, the gloves came off.?

There is a certain irony in the fact that the commander of the Guantanamo Bay detention camp, Major General Geoffrey Miller, has now been given the job of cleaning up the military prisons in Iraq. Guantanamo, the most public face of America 's war on terror, may actually be one of the less troubling of U.S. detention facilities in terms of how inmates are treated.

A slightly different version of this article originally appeared in The Guardian on May 4, 2004.

Related Links:

Torture at Abu Ghraib

by Seymour M. Hersh

The New Yorker, May 10, 2004

Iraq: U.S. Prisoner Abuse Sparks Concerns About War Crimes

Human Rights Watch

April 30, 2004

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