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Pre-Geneva Conventions and the Law of War

This section briefly summarizes the historical antecedents to the Geneva Conventions, the protections the Conventions provide to prisoners of war (POWs), the application of these protections to the current conflict, and the questions yet to be resolved concerning application of the Conventions to changed circumstances.

The United States and its coalition partners are engaged in a war against al-Qaeda and the Taliban, their affiliates, and their supporters. Under the law of war, a country at war has the legal authority to detain individuals who have engaged in combatant actions, including unlawful belligerence, until hostilities end. This basic principle is widely accepted around the world. And since 9/11, the United States Supreme Court has upheld the right of the United States to detain enemy combatants for the duration of the conflict.

In order to understand the United States' legal position in this war, it is important to understand what the Geneva Conventions require, do not require, cover, and do not cover. This section covers the history of the Geneva Conventions, the protections that the Conventions provide to prisoners of war (POWs), how those protections apply in the current conflict, and the future of the Conventions in a changing world.

Before the Geneva Conventions

Henry Dunant The law of war is that part of international law which regulates the conduct of armed hostilities. The law of war encompasses all international law for the conduct of hostilities that is binding on the United States and its citizens. It includes treaties and other international agreements to which the United States is a party.

The Geneva Conventions are a relatively new phenomenon in the history of warfare. Until the mid-19th Century, agreements or treaties on how to fight wars, if they existed at all, were bilateral agreements between powers at war. The agreements were specific only to the current conflict and varied from conflict to conflict.

The idea for a codification of laws regulating armed conflict originated with a citizen of Switzerland, named Henry Dunant.

In the United States, the policy of treating captured soldiers humanely began during the Revolutionary War, well before the first Geneva Convention. General George Washington, head of the Continental Army, adopted a series of policies regarding the care and treatment of prisoners of war. Those policies included a prohibition against the denial of quarter -- that is, a prohibition on refusing to take captured enemy soldiers as prisoners.

This policy led eventually to the establishment of the Lieber Code of 1863, which dictated how soldiers should be treated during a time of war. It was named for the German-American jurist Francis Lieber, and it greatly influenced the further codification of the laws of war and the adoption of similar regulations by other states. The year after its adoption, an international convention on the laws of war was presented to the Brussels Conference, which in turn stimulated the adoption of the Hague Conventions on land warfare of 1899 and 1907.

The International Committee of the Red Cross (ICRC) website presents a more detailed account of the development of the Geneva Conventions.

The Geneva Conventions

The Geneva Conventions codify laws regulating armed conflict and the humane treatment of prisoners of war and are a recent development in the history of war. Prior to the Conventions, agreements or treaties on the conduct of war tended to be bilateral agreements between warring powers. The agreements were applicable only to a specific conflict and the standards varied widely.

The four Geneva Conventions, as most recently revised and expanded in 1949, comprise a system of safeguards that attempt to regulate the ways wars are fought and to provide protections for individuals during wartime. The first Convention covers soldiers wounded on the battlefield; the second covers sailors wounded and shipwrecked at sea; the third covers prisoners of war; and the fourth covers civilians taken by an enemy military.

Camp Delta Detainee Guards in Formation Only nation states may become parties to international treaties. First, the state must sign the treaty and the treaty must be ratified. Second, the state must consent to be bound by the treaty. Today, 194 countries are parties to the Conventions and enjoy protections in return for compliance with its terms. Entities that are not party to the Conventions, by definition, may be denied the privileges extended to parties to the Conventions.

Parties to the Conventions enjoy protections if they follow their rules. Entities that are not party to the Conventions, by definition, may be denied the privileges extended to parties to the Conventions.

In addition to the treaty ratification requirements, Article 4 of the Third Geneva Convention protects prisoners of war if the combatant satisfies four additional pre-conditions. To enjoy the protections of the Convention as a prisoner of war (POW), a combatant must satisfy four conditions:

  1. Be commanded by a person responsible for his subordinates;
  2. Have a fixed distinctive sign recognizable at a distance;
  3. Carry any weapons openly; and
  4. Conduct operations in accordance with the laws and customs of war.

Tailban in Herat, July 2001 If you would like to read more about Article 4, click here to access the website of the International Committee of The Red Cross.

POWs, the Geneva Conventions, and al-Qaeda

Since 9/11, much if not most of the policy debate has centered on whether POW status applies to members of al-Qaeda and the Taliban.

Al-Qaeda is neither a country nor a lawful ruling party of a convention signatory. By definition, al-Qaeda members cannot be protected by the Geneva Conventions when fighting on behalf of al-Qaeda, whether or not they follow the law of war, such as wearing appropriate uniform. When captured, al-Qaeda fighters have no international law basis to claim prisoner of war status and are not entitled to protections under the Third Geneva Convention.

Taliban fighters require a slightly different analysis. Afghanistan did sign the Geneva Conventions on August 12, 1949, and it ratified the Conventions onSeptember 26, 1956. As such, Afghanis may be covered by the Conventions. Further, despite that the United States and the international community did not officially recognize the Taliban as a legitimate government, it was at least arguably the ruling party in Afghanistan from 1996 until 2001, when it was ousted from power by a U.S.-led international coalition.

Nonetheless, the Taliban did not satisfy the remaining Article 4 pre-conditions discussed above. Referring to a presidential finding, a White House spokesperson described the reasons why the Taliban were not entitled to prisoner of war status:

The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the al Qaeda.

Notwithstanding this determination, the President and military leaders decided in 2003 that the U.S. would treat captured members of al-Qaeda and the Taliban "consistent with the principles of the Geneva Convention," affording these detainees the protections and benefits of the Conventions despite their failure to abide by them as combatants.

Future Developments

This new phenomenon of non-state actors capable of global reach and lethality has led some to question whether the Geneva Conventions are outdated and in need of modification.

When the Geneva Conventions were written, wars were typically state-on-state conflicts. In the parlance of the law of war, those conflicts were of an "international character." Wars between parties of the same country -- civil wars -- are called conflicts "not of an international character." The Geneva Conventions cover both types of conflicts.

The towers of the World Trade Center burn shortly after United Airlines Flight 175 crashed into the South Tower on the right. To its left is the still smoking North Tower, struck earlier by American Airlines Flight 11 But September 11, 2001 changed everything. The horrific attacks perpetrated by al-Qaeda were of a scale, magnitude, and level of sophistication previously achieved only by nation states.

In April 2006, then-UK Defense Secretary John Reid called for a review of the Geneva Convention on the treatment of prisoners of war. According to Reid, "We risk trying to avoid 21st-century conflict with 20th-century rules, which when they were devised did not contemplate the type of enemy which is now extant."

Recently, John Bellinger, the U.S. State Department's top lawyer, suggested that the Geneva Conventions may need to be updated. The United States is "absolutely committed" to the Geneva Conventions, said Bellinger, but the "Geneva Conventions do not give you answers about who can be held in a conflict with a non-state actor.... They do not tell you how long you can hold someone in a conflict with a non-state actor." Echoing Reid's comments, John Bellinger said the Geneva Conventions "were designed in 1949 for different sort of circumstances, and they don't provide easy answers in all cases to how to deal with international terrorists."