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.

The current controversy is whether Geneva Conventions apply to terrorists, especially since terrorism has no universally agreed-upon definition

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As long as there has been 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.

Terrorists Not Fully Protected

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.
    However, because terrorists are not clearly distinguishable from civilians, in other words, they are "unlawful combatants," it can be argued that they are not subject to all Geneva Conventions protections.

    Bush Administration legal counsel has called the Geneva Conventions "quaint" and contends that everyone being held at Guantanamo Bay, Cuba, is an enemy combatant with no right of 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.

    Civilians Are Fully Protected

    The challenge in 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.

    Where It Stands

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

    In June, the U.S. Supreme Court ruled that habeas corpus does apply to detainees at Guantanamo Bay, Cuba, as well as 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.

    It remains to be seen what legal or international repercussions will follow from the prisoner torture and death documented earlier this year in Iraq in American-operated prisons.