Issue Summary : Geneva Conventions

The Geneva Conventions (1949) and the two Additional Protocols (1977) form the foundation for international humanitarian law in times of war. The treaty focuses on the treatment of enemy forces as well as civilians living in occupied territories.

These international treaties are intended to limit the barbarity of war by protecting non-combatants—civilians, medics and aid workers—and combatants who are no longer able to take part in battle— wounded, sick and shipwrecked troops, and all persons held as prisoners of war.

The Conventions and their Protocols provide measures for preventing all violations and contain strict rules for dealing with the perpetrators of war crime atrocities known in the treaties as “grave breaches.” Under these rules, war criminals are to be investigated, sought, extradited if necessary, and tried, regardless of their nationality. 

History and Background of Limiting War

As long as there has been armed conflict, man has tried to devise ways to limit wartime behavior, from the sixth century BCE Chinese warrior Sun Tzu to the 19th century American Civil War.

The founder of the International Red Cross, Henri Dunant, inspired the first Geneva Convention, which was designed to protect the sick and wounded. Pioneer nurse Clara Barton was instrumental in U.S. ratification of that First Convention in 1882.

Subsequent conventions addressed asphyxiating gases, expanding bullets, the treatment of prisoners of war, and treatment of civilians. Nearly 200 countries—including the United States—are "signatory" nations and have ratified these Conventions.

Treatment of Combatants, Civilians, and Terrorists

The treaties were initially written with state-sponsored military conflicts in mind and emphasize that "combatants must be clearly distinguishable from civilians." Combatants who fall within the guidelines and who become prisoners of war must be treated "humanely."

According to the International Red Cross:

Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must be protected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid. They must enjoy basic judicial guarantees.

Enemy Combatant Habeas Corpus

Under these rules, captured enemy combatants, whether soldiers or saboteurs, may be detained for the duration of hostilities. They need not be guilty of anything; they are detained simply by virtue of their status as enemy combatants in war.

The challenge in wars like those Afghanistan and Iraq is determining which persons who have been captured are "terrorists" and which are innocent civilians. The Geneva Conventions protect civilians from being "tortured, raped or enslaved" as well as from being subjected to attacks.

However, Geneva Conventions also protect the uncharged terrorist, noting that anyone who has been captured is entitled to protection until "their status has been determined by a competent tribunal."

Military lawyers (Judge Advocate General's Corps - JAG) reportedly have petitioned the Bush Administration for prisoner protection for two years—long before Iraq's Abu Ghraib prison became a household word around the world.

Supreme Court Ruling

The Bush Administration held hundreds of people at the Guantanamo Bay naval base on Cuba, for two years or longer, without charge and without redress. Many were subjected to actions that have been characterized as abuse or torture.

In June 2004, the U.S. Supreme Court ruled that habeas corpus applies to detainees at Guantanamo Bay, Cuba, as well as to citizen "enemy combatants" held in continental U.S. facilities. Therefore, according to the Court, these detainees have the right to file a petition asking that a court determine if they are being held lawfully.