The Geneva Conventions
CBC News Online | May 13, 2004
The Geneva Conventions have one aim to protect both soldiers and civilians as much as possible from the horrors of war.
Those conventions now outline the rules for the treatment of prisoners of war, civilian internees and sick, wounded or shipwrecked members of fighting forces.
Violating the Geneva Conventions, breaking the rules may constitute either war crimes or crimes against humanity.
Today's conventions, negotiated after the Second World War, and including some updated amendments from the late 1970s, are the result of a century of diplomatic wrangling and lobbying by humanitarian organizations.
The first important convention was actually signed in The Hague in 1907 and ratified by most of the world's nations in the following years. That convention tried to set out rules for fighting wars, and where it hasn't been supplemented by later agreements is still in force. A key clause in the 1907 Hague Convention that called for wars to be conducted within "the laws of humanity and the requirements of public conscience" became the basis of the later idea of "crimes against humanity."
John McCain is administered to in a Hanoi, Vietnam hospital as a
prisoner of war in the fall of 1967. McCain spent 20 years in the Navy,
a quarter of it in a Vietnamese prisoner of war camp after his jet was
shot down over Hanoi during a bombing mission Oct. 26, 1967. The Navy
pilot nearly gave up during his captivity but his memory of books and
movies helped him survive. North Vietnam did not follow the Geneva
Convention, because, it in its view, the conflict in Vietnam was an
The limits of the 1907 Convention became clear during the First World War. In 1929, many of the world's nations signed a Geneva Convention governing the treatment of prisoners of war. The Second World War again showed the previous conventions need amending and updated, so in 1949 diplomats negotiated four Geneva Conventions. They are:
- Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
- Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
- Convention Relative to the Treatment of Prisoners of War.
- Convention Relative to the Protection of Civilian Persons in Time of War.
The first two conventions cover members of armed forces involved in a conflict who are no longer able to fight (hors de combat is the legal term). The third convention regulates the treatment of prisoners of war. The fourth convention for the first time laid down rules for the treatment of civilians both during the fighting and in occupied territories. The supplements to the Geneva conventions neogiated in 1977, Protocols I and II, widened the definition from declared war to "armed conflicts" and recognized both "international" and "non-international" (such as civil wars) conflicts.
Prisoners of War
The 1949 Geneva Convention on the treatment of prisoners of war defines PoWs as members of the armed forces captured during a conflict, or:
Members of other militias and members of other volunteer corps, … provided that such militias or volunteer corps … fulfil the following conditions:
- That of being commanded by a person responsible for his subordinates;
- That of having a fixed distinctive sign recognizable at a distance;
- That of carrying arms openly;
- That of conducting their operations in accordance with the laws and customs of war.
PoW or Unlawful combatant?
The United States created a new controversy over the conventions after the attacks on Sept. 11, 2001. The Bush administration quickly declared that members of al-Qaeda captured on the battlefield were "unlawful combatants" and not subject to the Geneva Conventions.
Mary Robinson, the UN human rights chief, said they should be considered prisoners of war, as defined by the Geneva Conventions. At the time, U.S. Defence Secretary Donald Rumsfeld and other military officials called them "detainees" or "unlawful combatants."
Rumsfeld repeated that contention during the controversy over abuse of Iraqi prisoners by American soldiers at the Abu Ghraib prison near Baghdad. He said that prisoners in Iraq were covered by the conventions, while members of al-Qaeda are not, adding, "Terrorists don't comply with the laws of war. They go around killing innocent civilians."
The Americans argued that captured members of al-Qaeda do not fall into any of these categories, saying that al-Qaeda members don't wear uniforms ("fixed distinctive sign") or obey the laws of war. Rumsfeld labeled them "unlawful combatants," and said the rules of the Geneva Convention did not apply.
An American military pamphlet on the law of war provides this definition:
An unlawful combatant is an individual who is not authorized to take a direct part in hostilities but does. ... Unlawful combatants are a proper object of attack while engaging as combatants. ... If captured, they may be tried and punished.
As examples, the pamphlet mentions civilians who engage in war without authorization; non-combat members of the military, such as medics or chaplains, who engage in combat; and soldiers who fight out of uniform. In the Second World War, the United States captured eight German saboteurs who were out of uniform and executed six of them.
However, under the Geneva Conventions, it's up to an independent judge to determine the status of the "detainees," not whoever detains them. As well, Canadian regulations on prisoner-of-war status dictate that detainees must be brought before a military tribunal to determine whether they're prisoners of war or not.
Lawyers for prisoners held at the American prison camp at Guantanamo Bay, Cuba, as well as those representing two U.S. citizens held in a navy brig as enemy combatants, have challenged the policy before the United States Supreme Court. A decision is expected in mid-summer.
Even if they are found to be "unlawful combatants" they still have rights under international humanitarian law to humane treatment, to a fair trial if charged with a crime, and not to be tortured.
Rumsfeld has defended the use of interrogation techniques such as dietary changes, sleep deprivation, forcing prisoners to sleep naked and forcing them into "stress positions" as justified against unlawful combatants. Humanitarian organizations and some U.S. senators say those practices "go far beyond the Geneva Convention."
Carpiquet, France; July 4,1944-- Canadian Private Leopold Marcoux
with German prisoner of war taken during battle for Carpiquet In Airport.
During the Second World War, both the Allies and Germans treated
prisoners of war following the rules of the 1929 Geneva Convention.
(CP PHOTO) 1999 (National Archives of Canada / Michael M. Dean)
The key phrases of the fourth convention covering civilians in occupied territories cover both the occupier and the occupied. The occupier is required to treat people properly, while the population of an occupied state can forfeit rights if they take part in acts such as spying or sabotage. But the convention also adds that detainees cannot be deprived of their rights indefinitely. Those rights must be restored when the security situation permits. Critics of the Bush policy have pointed out if what the U.S. calls the "war against terrorism" goes on for years, prisoners could be held without rights indefinitely.
Article 1 of the convention states:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat [unable to fight] by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Violation of prohibitions
Violation of prohibitions are covered by Article 5, which states:
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with security of State or Occupying Power as case may be.