Treatment of prisoners of war under the Geneva Convention 1949

Geneva Conventions

Enacted after the horrors of World War II demonstrated the limitations of earlier treaties, the Geneva Convention of 1949 have become one of the preeminent international standards dictating the behavior of combatants and the treatment of individuals in the context of international and other conflicts, to the point that it has become a part of generally accepted customary international law. Building upon three earlier treaties signed in Geneva, the Convention of 1949 outlined rigorous standards defining and governing the treatment of civilian and military prisoners, the wounded, and civilians found in and around the war zone. Over the course of the last decade, the centrality of the Geneva Convention to international war and politics has come to the fore as a result of debates surrounding the relevance of the Convention to the United States execution of the War on Terror, especially in regards to the treatment and detainment of combatants and other individuals captured in Afghanistan and Iraq. Examining the history of the Geneva Convention, and particularly the Third Geneva Convention, which governs the treatment of prisoners of war, in conjunction with an analysis of the United States' interpretation of the Conventions as they apply to the War on Terror will serve to demonstrate the continued importance of the Geneva Conventions as well as the limitations and complications which arise when attempting to apply them in a modern context, and reveal the possibility of a frightening future where the Geneva Conventions, having grown gradually less relevant to the realities of twenty-first century warfare, are ignored altogether.

The Geneva Convention of 1949 was actually the fourth such treaty, and it built upon the three earlier treaties which had been signed in 1864, 1906, and 1929, after the events of World War II demonstrated that the previous treaties were no longer sufficient to maintain the just and humane treatment of individuals in and around war zone, regardless of their status as civilians or members of the military. However, these previous treaties were not the only factors which contributed to the writing and signing of the 1949 Conventions, because the Universal Declaration of Human Rights, signed a year earlier, "helped to shape the four momentous 1949 Geneva Conventions and their principles of jus in bello, or justice in war" by constructing an ideological framework in which the protection of universally recognized human rights became a central concern, and were considered as an issue separate from those treaties governing, for instance, the use of certain kinds of weapons in war (Lauren 2011, p. 229). The Universal Declaration of Human Rights was one of the first international responses to the trauma and bloodshed of World War II, and the momentum built up by its signing served to set the stage for a revision and expansion of the existing Geneva Conventions that would include protections not only for those individuals engaged in direct combat, but also those civilians found in and around the battlefield.

Much of the impetus behind both the Universal Declaration of Human Rights and the 1949 Geneva conventions came from the International Committee of the Red Cross, which had announced in 1945, "while the Allied armies were preparing to bridge the Rhine and the Oder and begin their victorious march across Nazi Germany," that "it was gathering information and initiating talks with a view to revising the Geneva Conventions to reflect the experience of six years of war," war that had included a previously unprecedented genocide, forced "scientific" experiments on prisoners of war, and the practice of total war which resulted in numerous civilian deaths and the massive destruction of property (Bugnion, 2000, p. 41). Even after the experience of World War I shocked the international community into action, the devastation of the second World War was so widespread and undeniable that even those powers ideologically oriented against each other came together in order to ensure, or at least attempt to ensure, that mayhem and abuse on such a massive scale could never happen again.

The passage of the revised Conventions represented one of the last instances of genuine cooperation between the Soviet Union and the Allied powers following their united defeat of Nazi Germany, and this fact is reflected in the revival of "the old scholastic doctrine of 'just war,'" which the Soviet Union, among other nations, deployed in order to argue "that a victim of aggression was not bound to respect the provisions of the laws and customs of warfare when fending off an aggressor state whose very act of war was itself a violation of the law," in an attempt to claim "the benefits of international humanitarian law while reserving the right to disregard any provisions that might restrict their freedom of action" (Bugnion, 2000, p. 43). Thus, while the Soviet Union agreed to the Conventions, it made its reservations known, and this intention of disregarding the protections and rights ensured by the Convention when dealing with enemies who were not signatory to it would have far reaching ramifications, all the way up to the present.

That this was an issue even at the time of the Conventions' signing is worth noting, because the notion of claiming the protections of international law while disregarding those portions that might restrict certain actions has become relevant once again in the context of the United States' decade-long global war on terror, as the United States government, federal and international courts, and human rights groups attempt to define precisely how the Geneva Conventions apply to this unprecedented and altogether novel form of warfare. However, before considering these issues, it will be useful to first discuss the contents of the Convention as well as the way its interpretation and application has developed over the course of half a century, as a means of understanding the developments which led to the role of the Geneva Conventions in the contemporary world.

In general, the Geneva Conventions "cover a vast range of problems stemming from land, air or naval warfare, including the protection of wounded combatants and prisoners of war, of civilian populations and civilian objects affected by military operations or present in occupied territories, and of medical and religious personnel and buildings" (Steiner, Alston, & Goodman 2008, p. 70). One of the most important developments prior to the 1949 Conventions came after World War I, in 1929, when new standards were formulated governing which countries would enforce the provisions of the Conventions during a conflict, which allowed "belligerents [to designate] a substitute neutral State if the original Protecting Power ceased to function or became a belligerent" (Draper, 1979, p. 14-15).

However, "the Second World War exposed this embryonic system to strains, fissures, and defects that largely frustrated its operation," so by the conclusion of the war, it was clear that if the international community desired to maintain even the facade of "in the words of the landmark St. Petersburg Declaration of 1868 -- 'alleviating as much as possible the calamities of war,'" new, more robust controls would be needed (Draper, 1979, p. 15, & Steiner, Alston, & Goodman, 2008, p. 70). Aside from updating the terms of the three previous treaties, the Geneva Conventions of 1949 added the Fourth Convention, which is specifically concerned with "the protection of civilian persons in times of war" ("Geneva Conventions of 1949 and their additional protocols," 2011).

This was in addition to the first Geneva Convention, which covers the treatment of the sick and wounded in land conflicts, the second Geneva Convention, which covers the treatment of the sick and wounded in sea conflicts, and the third Geneva Convention, which covers the treatment of prisoners of war. In addition to the protection of civilians as established in 1949, two additional protocols were added in 1978, "designed primarily for the protection of civilians," and third protocol was added in 2005, signifying an additional symbol to be worn by those engaged in humanitarian efforts, in addition to the Red Cross and Red Crescent used since the earliest years of the Convention (Draper, 1979, p. 13).

As seen above, the Geneva Conventions have changed relatively little since their adoption in 1949, because aside from the largely clarifying protocols of 1978, no effective efforts have been made to update the Conventions in light of changing contexts and methods of warfare. However, there is one important development in the application of the Geneva Conventions which must be noted, because demonstrates the importance of the Conventions as well as their continued widespread applicability. In 1993, in response to the atrocious human rights violations "within the territory of the former Yugoslavia and especially in Bosnia and Herzegovina," the United Nations Security Council affirmed that the standards of the Geneva Conventions had "beyond doubt become part of international customary law," meaning that states who were not signatory to the treaty itself were nonetheless bound by its laws if they engaged in armed combat (United Nations Security Council, 1993, p. 9).

Perhaps even more so than the protocols of 1978, this affirmation of the Geneva Conventions' status as international customary law marks one of the most important developments since it was first signed, because it marks the Geneva Conventions as one of the relatively few cases of globally binding rules and regulations. Though the affirmation was done as part of a resolution intending to set up an international tribunal capable of trying individuals for genocide and other crimes against humanity in former Yugoslavia, this affirmation has ramifications far beyond the purpose for which it was immediately done. Of course, this is not to discount the immediate importance of the International Criminal Tribunal for the Former Yugoslavia, which "continues to judge and to punish those found guilty of crimes, including mass rape and systematic sexual violence, […] violations of the laws and customs of war, and, most seriously, genocide and crimes against humanity" (Lauren, 2011, p. 270). In fact, the International Criminal Tribunal for the Former Yugoslavia represents one of the most dramatic successes of the Geneva Conventions in recent memory, but this success is largely overshadowed by Conventions induction into international customary law.

It is worth pointing out the extent to which the Geneva Conventions have come to represent a worldwide standard, not only because of the way in which this standard has allowed for the prosecution of crimes and criminals which would have previously gone unchallenged, but also because the status of the 1949 Geneva Convention as an example of establish international customary law has actually served to create news problems regarding the protection of human rights, due to the extreme difficulty of amending or updating a set of rules that has become so deeply engrained and accepted in the international community. To see why this is the case, one may look at some factors which led to the 1978 protocols as well as the issues which have arisen when considering the Geneva Convention in relation to the United States' ongoing War on Terror.

One of the major factors precipitating the adoption of the 1978 protocols (and particularly Protocol II, relating to the protection of victims of non-international armed conflicts) was the fact that "the majority of armed conflicts in the years after 1949 have been non-international armed conflicts -- in other words, civil wars" (Bugnion, 2000, p. 44). The problem is that prior to the institution of the 1978 protocols, "the only part of the four Geneva Conventions which specifically applied to such situations was the common Article 3," which had only "been intended as a minimum set of essential humanitarian principles, to be supplemented by more elaborate rules adopted by special agreement between belligerents" (Bugnion, 2000, p. 44). This means that the only binding standards in the majority of conflicts following the adoption of the Geneva Conventions were general admonitions that people not taking part in hostilities should be treated humanely, with a few prohibited behaviors specifically outlined. This fact, along with developing countries' discontentment regarding the fact that "under the Geneva Conventions, the wars by means of which indigenous peoples sought to gain their freedom from colonial rule were considered to be non-international armed conflicts since, under the public international law then in force, a colonial territory was not regarded as distinct from the territory of the colonial power," precipitated the adoption of the 1978 protocols.

The adoption of the 1978 protocols demonstrated an ability on the part of the international community to amend the protections afforded by the Geneva Convention in light of evolving conditions, but as time has gone on, this ability seems almost entirely lost. One can see this most blatantly when considering the fact that the United States' War on Terror, which has included a land war in Afghanistan, a land war in Iraq (although the Iraq War, having received its own authorization for the use of military force, at least bears the hallmarks of a traditional war), and drone wars in Pakistan, Yemen, and Somalia, has not precipitated any genuine discussion of updating the Geneva Conventions to reflect this unprecedented and novel way of waging war, against an enemy that seemingly does not fit into any of the categories enumerated in the Conventions, and on a battlefield that is neither international nor non-international, but rather transnational.

Instead, after ten years into the first war to include all of the ideological and technological developments of the twenty-first century, the most that has been done regarding the Geneva Convention is the 2005 protocol, which authorizes the adoption of the Red Crystal emblem, which serves as the first non-religious emblem which can be worn by humanitarian workers in order to receive the protections of the Geneva Convention. This is not to suggest that the development of the Red Crystal emblem is unhelpful, but rather that considering the issues surrounding the United States' execution of the War on Terror, the lack of international action to update the Geneva Conventions is telling, and serves to demonstrate the somewhat diminished role of the Geneva Convention even after it has become a matter of established international customary law, or perhaps, because it has become a matter of established international customary law. The Geneva Convention's induction into international customary law meant that many people and groups assumed that the interpretation and application of the Conventions had been generally settled, such that any conflicts which might arise could easily be analyzed and responded to according to precedent. However, this assumption has proved dangerous, because the most prominent wars of the twenty-first century have proved to be without precedent, such that the application of the Geneva Conventions in a modern context is problematic and rife with disagreements on fundamental issues regarding human rights and the treatment of prisoners of war.

In order to understand the role of the Geneva Conventions today, and especially their relation to the largest ongoing conflict, one may examine two related subjects which highlight the contemporary limitations of the Geneva Conventions: the United States use of water-boarding, and the Guantanamo Bay detention camp in Guantanamo Bay Naval Base, Cuba. However, before exploring how the United States' authorization of water-boarding and the continued detention of individuals in Guantanamo Bay demonstrates the apparently diminished status of the Geneva Conventions, it will be helpful to discuss the convention most relevant to the these issues: Convention III, relating to the Treatment of Prisoners of War. Convention III defines prisoners of war as individuals falling into one of six categories, with two additional special cases regarding individuals no longer in the war zone, and it will be necessary to examine each of these categories, because one of the central issues regarding the United States' execution of the War on Terror is whether or not the individuals it has detained qualify as prisoners of war under the articles of the Third Geneva Convention.

The first category is relatively straightforward, as it only includes "members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces" (International Committee of the Red Cross, 1949). The second category includes militias or volunteer corps not part of the armed forces of a Party to the conflict, provided that they meet a set of four conditions: "(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war" (ICRC, 1949). The third category includes members of armed forces who are part of a government or authority not officially recognized by the Power detaining them, and category four includes all individuals accompanying the armed forces who are not actually members, such as "aircraft crews, war correspondents, supply contractors," and others, "provided they have received authorization" in the form of an identity card (ICRC, 1949). The fifth category include the crews of civilian aircraft who do not otherwise "benefit by more favorable treatment under any other provisions of international law" (ICRC, 1949). The final category includes "inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed unites, provided they carry arms openly and respect the laws and customs of war" (ICRC 1949).

The United States has contended that the suspected members of Al-Qaeda detained at Guantanamo Bay do not fit count as prisoners of war, but rather as "unlawful enemy combatants," and as such cannot claim the protections afforded under the Third Geneva Convention. Furthermore, the United States has argued that more generally, the detentions at Guantanamo Bay are governed solely by the law of armed conflict, and not international humanitarian rights laws (Matthew, 2008, p. 163). This demonstrates the first limitation of the Geneva Convention, because different groups have different interpretations as to what the War On Terror actually constitutes. The United Nations Commission on Human Rights released a report discussing the detentions at Guantanamo Bay arguing that the United States "was not, at the time their investigation, engaged in an international armed conflict," whereas the United States has repeatedly argued that "the 'war on terror' is an armed conflict, rather than a struggle against various groups committing criminal acts" (Matthew, 2008, p. 164). Indeed, the Bush Administration's decision to classify the September 11th attacks "as an 'act of war' against America and [shun] a law enforcement model as the mechanism of punishment" demonstrates how fully the United States' government has decided that the War on Terror is indeed a genuine war, but only to the extent that this classification grants it certain powers (Hajjar, 2003, p. 10).

In addition, the United States has argued that because Al-Qaeda is not a signatory to the Geneva Conventions, detained members of Al-Qaeda cannot claim its protections, but this has been challenged by the U.S. Supreme Court. In particular, the Supreme Court has stated that if the United States is engaged in an armed conflict (a claim the Court partially agreed with), then at the very least Article 3 of the Conventions still apply, because the United States has argued that the conflict in Afghanistan against Al-Qaeda counts as a non-international armed conflict, to which the minimum humanitarian protections of Article 3 apply (Bellamy, 2008, p. 89). Nevertheless, the United States government has attempted to argue that Guantanamo Bay constitutes "a legal black hole or zone or anomie," and despite the Supreme Court's ruling that detainees have a "right to challenge their imprisonment and denial of access to domestic courts," regardless of whether or not they constitute prisoners of war or "enemy combatants," "the detainees in Guantanamo Bay still remain in limbo despite the court rulings that their status, legal access and court proceedings need to be changed according to the UCMJ and Geneva Conventions" (Bellamy, 2008, p. 89-90).

Thus, while the determination of the United Nations and the United States Supreme Court is that the protections afforded by the Geneva Conventions apply to detainees in Guantanamo (even if the only applicable statute is Common Article 3, and not all of Convention III), the government has simply continued denying them these protections, and the current (lack of) enforcement of the Geneva Convention means that it has continued unabated. This denial of rights guaranteed by international law became substantially easier with the passage of the Military Commissions Act in 2006, which:

Seeks to strip the U.S. courts of jurisdiction to consider habeus corpus appeals from any foreign national held in U.S. custody; defines any individual held in U.S. Custody as an enemy combatant: while section 948(b) prohibits detainees from invoking their rights under the Geneva Conventions; and the prosecution is allowed to bring evidence to the court that was obtained under torture, with the defense counsel denied access to any information deemed as "classified." (Bellamy, 2008, p. 90)

Thus, where the United States government failed to legitimize its denial of the rights afforded to detainees under the Geneva Convention through arguments attempting to selectively define the War on Terror as an international and non-international conflict that nonetheless produced combatants not governed under the laws of armed conflict, it has simply passed legislation (that will almost certainly not pass Constitutional muster) in order to continue the detainments indefinitely, by defining Guantanamo Bay as the only place in which detainees may be tried, and then defining Guantanamo Bay as a place "not clearly under the sovereignty of either" the United States or Cuba, and thus a place in which no human rights laws, national or international, apply (Kaplan, 2005, p. 832). From the perspective one studying how human rights are protected and ensured this is likely atrocious, but it should not be surprising, considering how the Geneva Conventions have failed to keep up with the myriad technological and legal developments which render them moot in the face of actions like those taken by the United States government.

Thus, even though the United States government is still legally bound to grant the detainees in Guantanamo Bay the rights afforded under the Geneva Convention, the lack of any Protecting Power means that there is not body genuinely capable of enforcing the laws of the Geneva Convention, such that the United States can seemingly ignore them at will. This should not necessarily be taken as an indictment of the United States government, because it is simply exercising the power granted to it by the international community. Rather, this demonstrates how outdated the Geneva Conventions are when it comes to dealing with the complex legal issues which have arisen out of the War on Terror, revealing a rapidly diminishing relevance at a time when clear standards for human rights have become all the more important. While one might argue that blame should be cast on the United States' government for its torturous interpretation of international and domestic laws, this argument ultimately misses the point, because the effectiveness of treaties such as the Geneva Conventions is precisely their supposed simplicity and clarity, which should serve to preclude any legal wrangling by nations or groups attempting to subvert human rights through legal means. That the United States has been so effective in dodging any prosecutions under the auspices of the Geneva Conventions demonstrates the Conventions' waning relevance and the need for more robust protections and enforcement measures.

Aside from the existence of the Guantanamo Bay detention camp in general, the treatment of the detainees there further highlights a limitation of the Geneva Conventions, because the United States has readily admitted to water-boarding detainees, a practice that clearly falls under the rubric of torture in any number of international human rights laws, but has not faced any form of punishment or reprisal due to the vagueness of the Geneva Conventions and their indeterminate applications to the War on Terror. This is compounded by the difficulty of ensuring "the right to protection against torture," due to the fact that "protecting people against torture always requires positive endeavors by the state [….] to train, supervise, and control" the interrogation of detainees, endeavors which become complicated when interrogators receive conflicting information regarding the legality of certain tactics (Donnelly, 2003, p. 30). In 2008, CIA Director Michael Hayden admitted that water-boarding was used against three different detainees under the belief "that additional catastrophic attacks against the homeland were imminent" ("Senior U.S. Officials Acknowledge Waterboarding of Three Suspected Terrorists," 2008, p. 359). The inclusion of a "ticking clock" scenario is important to note, because it is a crucial part of the United States' defense of its interrogation techniques, but that will be discussed after one considers whether or not water-boarding can really be viewed as torture.