I.

Introduction

Geneva Conventions, series of international agreements that created and developed international humanitarian law to protect wounded combatants and those who assist them, prisoners of war, and civilians during times of war or other conflicts. The campaign for such laws began with the publication of Un Souvenir de Solferino (A Memory of Solferino, 1862; translated 1911) by Swiss philanthropist Jean Henri Dunant. The book described the suffering of wounded soldiers at the northern Italian battlefield of Solferino in June 1859. It advocated for the creation of a relief society and the adoption of a treaty that would give protection on the battlefield to the wounded and those who assisted them. These proposals ultimately led to the adoption of the Geneva Conventions and the founding of the International Committee of the Red Cross (ICRC), which later became the International Committee of the Red Cross and Red Crescent Movement.

II.

The Four Geneva Conventions

There have been four Geneva Conventions, each of which has subsequently been amended. The name derives from Geneva, Switzerland, the city where the conventions were negotiated. The first Geneva Convention was adopted in 1864 and provided for the protection of sick and wounded soldiers on the field of battle. The second convention, formulated in 1906, extended those protections to sailors wounded in sea battles. The third convention, in 1929, protected prisoners of war (POWs). It legislated that POWs were not criminals, should be treated humanely, and should be released at the end of hostilities. The fourth convention, ratified in 1949, rewrote, expanded, and replaced the language of the first three conventions. The fourth convention also provided for the protection of civilians during wartime. It brought civilians under the protection of international laws that prohibit murder, torture, hostage-taking, and extra-judicial sentencing and executions.

What is now commonly called “the Geneva Conventions” refers to the three conventions that were recodified in 1949 and the fourth convention that was added that same year. Humanitarian law, also known as “the laws of war,” is comprised of the Geneva Conventions and the 1899 and 1907 Hague Conventions. Whereas the Geneva Conventions primarily protect victims of war, the Hague Conventions and accompanying regulations primarily protect combatants and noncombatants by limiting the methods and means of combat. The Hague regulations protect prisoners of war; prohibit poisonous weapons and weapons calculated to cause unnecessary suffering; and killing or wounding an enemy who has surrendered. They also provide that an occupying power must respect ”the laws in force in the country.”

III.

The Two Additional Protocols

In 1977 two protocols were added to the Geneva Conventions of 1949. Protocol I extends the law relating to protections of victims of armed conflicts to situations where people are fighting in the exercise of their right of self-determination against colonial domination, foreign occupation, or racist regimes. Protocol II extends protection to victims of internal conflicts in which an armed opposition controls enough territory to enable it to carry out sustained military operations.

IV.

The Third Geneva Convention

As amended in 1949, the Third Geneva Convention, known as the Geneva Convention Relative to the Treatment of Prisoners of War, sets forth criteria to determine who is a POW, a protected person under this convention. Where a doubt arises about whether a person is a POW, a competent tribunal must decide his or her status; in the meantime, the person must be afforded the protections of this convention. POWs are entitled at all times to humane treatment and respect for their personal dignity and honor. Their lives and health must not be endangered. They must be protected against violence or intimidation, insults, and public curiosity. They must be maintained in conditions as favorable as those for the forces of the detaining power. No physical or mental torture, nor any other form of coercion, may be inflicted on POWs to secure information from them. POWs who refuse to answer questions may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. POWs are bound to give only their surnames, first names and rank, date of birth, and “army, regimental, personal or serial number.”

V.

The Fourth Geneva Convention

The Fourth Geneva Convention adopted in 1949, known as the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, made explicit the protections that should be extended to civilians during wartime. It requires that protected persons—civilians, the wounded, and POWs—be treated humanely. Such persons are, in all circumstances, entitled to respect for their honor and religion, and must be protected against insults and public curiosity. No physical or moral coercion shall be exercised to obtain information from them or third parties. Reprisals against protected persons and their property are prohibited.

VI.

Common Article 3 to the Geneva Conventions

Article 3 applies to all four Geneva Conventions and is often referred to as Common Article 3. Article 3 prohibits “at any time and in any place whatsoever” the use of specific acts on persons taking no active part in hostilities, including members of armed forces who have laid down their arms, or who have become sick, wounded, or detained. The acts are violence to life and person, including murder, mutilation, cruel treatment, and torture, and outrages upon personal dignity, such as humiliating and degrading treatment. Protected persons must be treated humanely at all times.

By its terms, Article 3 explicitly protects persons during an internal armed conflict, such as a civil war. However, it is now well established that Common Article 3 also applies to international conflicts. The International Court of Justice, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda all consider the protections of Common Article 3 to apply to international conflicts. Article 3 is also considered to be part of customary international law. This means that countries are bound to follow the protections of Common Article 3, unless a country has expressly disapproved of those protections during their development.

A.

Countries Belonging to the Conventions

As of 2005, 192 countries had ratified (thus becoming parties to) all four of the Geneva Conventions. Additional Protocol I had been ratified by 161 states, and 156 countries had ratified Additional Protocol II. Nearly every country has ratified the Geneva Conventions, so they are now considered customary international law. The United States is a party to the four Geneva Conventions, but has not ratified the two Additional Protocols. The United States refuses to ratify Protocol I because it claims the protocol will legitimize groups involved in wars of national liberation. Although the United States has not ratified Protocol I, it has indicated that most of its provisions are incorporated into customary international law. The United States also decided not to ratify Protocol II, fearing that it might enhance the status of rebels, even though there was little objection by the U.S. military to ratification of this protocol. Without the Additional Protocols, recent conflicts in Bosnia and Herzegovina, Sierra Leone, and the Democratic Republic of the Congo might not have been covered by humanitarian law.

VII.

Grave Breaches and War Crimes

The Geneva Conventions and Additional Protocol I require the ratifying parties to repress grave breaches of the conventions, which are classified as war crimes under statutes of the International Criminal Court and the U.S. War Crimes Act of 1996. States parties—that is, the ratifying parties—are required to search for persons who have allegedly committed or ordered the commission of grave breaches of the conventions and bring those persons before their own courts, or hand them over to another state party for trial.

Grave breaches of the Third and Fourth Geneva Conventions include the following acts if committed against a person protected by the convention: willful killing, torture or inhuman treatment, including biological experiments; willfully causing great suffering or serious injury to body or health; compelling one to serve in the forces of a hostile power; and willfully depriving one of the right to a fair trial. Also considered grave breaches of the Fourth Geneva Convention are the following: taking of hostages; extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; and unlawful deportation, transfer, or confinement.

VIII.

History of Compliance and Noncompliance

A.

Noncompliance During World War II

Many countries that have signed and ratified and thereby agreed to abide by the Geneva Conventions have nevertheless failed to live up to their commitments. Germany, for example, was a signatory to the 1929 Geneva Convention, and yet the Nazi regime of Adolf Hitler killed nearly half of the POWs it captured in fighting the Union of Soviet Socialist Republics (USSR) during World War II (1939-1945). The Nazis executed Soviet POWs at concentration camps such as Auschwitz and Sobibór. Japan, which was not a signatory to the 1929 agreement, announced in 1942 that it would abide by its terms but nevertheless was known for its brutal treatment of POWs, including experimenting with the use of biological and chemical weapons on POWs and other captives.

Many of the provisions created by the Fourth Geneva Convention regarding the protection of civilians were added in response to war crimes committed during World War I (1914-1918) and World War II. The prohibition against collective punishment, for example, resulted from wholesale reprisals taken by the German Army against entire towns and villages in retaliation for partisan activity.

B.

U.S. Compliance

The United States has been a party to the Geneva Conventions since 1882 when President Chester Arthur signed the 1864 accord. The United States ratified all the subsequent conventions with the exception of the 1977 protocols. The U.S. armed forces have expressly incorporated the four Geneva Conventions into their written military regulations. During World War II, the U.S. military detained more than 400,000 German and Italian prisoners in the United States and observed the Geneva Conventions to the letter in its treatment of these prisoners.

Since the end of World War II, the United States has played a prominent role in demanding that detainees be treated by foreign governments in accordance with the Geneva Conventions. During the Vietnam War (1959-1975), the 1991 Persian Gulf War, and to a limited extent in the U.S.-Iraq War, the United States conducted hearings to determine whether captured persons should be accorded POW status under the Third Geneva Convention. In Vietnam, the U.S. decision to apply the Geneva Conventions’ principles to captured enemy soldiers was driven in part by the desire to obtain reciprocal benefits for American captives. American insistence that North Vietnam and the National Liberation Front of South Vietnam apply the Geneva Conventions to American POWs in Vietnam is believed to have been responsible for saving American lives.

C.

Geneva Conventions and “Unlawful Combatants”

The United States had adhered to the Geneva Conventions in armed conflicts since 1882. Following the U.S. invasion of Afghanistan in October 2001, however, President George W. Bush determined that captured prisoners were “unlawful combatants” who were not protected by the Geneva Conventions. The United States invaded Afghanistan because the Taliban government there harbored the al-Qaeda terrorist network that was responsible for the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon. The Bush administration said the Geneva Conventions did not apply to Taliban detainees because Afghanistan was a failed state and the Taliban represented a militia rather than a true government. Captured al-Qaeda prisoners were not subject to the provisions of the Geneva Conventions because they were “nonstate actors” and the conventions applied only to state parties, according to memos drafted by attorneys in the U.S. Department of Justice.

Secretary of State Colin Powell objected to this determination, noting in a written memo that the decision would “reverse over a century of U.S. policy and practice … and undermine the protections of the law of war for our troops.” The State Department’s legal adviser, William H. Taft IV, also authored a memo arguing that the United States should base “its conduct on its international legal obligations and the rule of law, not just its policy preferences.” In a January 2002 reply to these concerns then White House Counsel Alberto Gonzales rejected the State Department’s arguments and advised Bush that “the war against terrorism is a new kind of war, a new paradigm [that] renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”

The decision to classify Taliban and al-Qaeda prisoners as enemy combatants led to harsh treatment. Some prisoners in Afghanistan were repeatedly beaten, immersed in cold water, subjected to electric shocks, and hung upside down. Many were beaten to death. Many prisoners captured in Afghanistan were transferred to a U.S. Navy base at Guantánamo Bay, Cuba, where they were beaten and subjected to various forms of torture.

Before invading Iraq in March 2003, the United States asserted that the Geneva Conventions would apply to all prisoners captured in Iraq. By spring of 2004, however, the administration changed its position, maintaining that some non-Iraqi prisoners captured in Iraq were not entitled to the protection of the Geneva Conventions. Some of these detainees were transferred out of Iraq for interrogation, despite the Fourth Geneva Convention’s prohibition against deportations of protected persons from occupied territory, regardless of the motive. In addition, according to a report by U.S. Army Major General George Fay, policies and practices developed and approved for use on al-Qaeda and Taliban detainees were also applied to detainees at Guantánamo Bay, Cuba, and in Iraq during the ongoing war there.

As U.S. military forces faced a growing armed resistance in Iraq, the Geneva Conventions’ prohibitions against torture and forced interrogations were often ignored, according to several official reports. An investigation by the International Committee of the Red Cross (ICRC) found that treatment of many detainees was “tantamount to torture.” Most of the abuses occurred at Abu Ghraib prison outside Baghdâd, the capital of Iraq, where the ICRC determined that 70 to 90 percent of those held were innocent of any wrongdoing and had merely been swept up in mass arrests following insurgent attacks.

The U.S. government also admitted hiding some prisoners from the ICRC in violation of the Geneva Conventions, which require the registration of all detainees with the ICRC. The ICRC maintained that the “unlawful enemy combatant” designation violated the Geneva Conventions. By definition, an enemy combatant is entitled to prisoner of war status if captured during active hostilities; he or she would therefore be entitled to combatant immunity from criminal prosecution.

Common Article 1 to all four of the Geneva Conventions provides no exceptions to the obligation of states parties “to respect and to ensure respect for the present Convention in all circumstances.” Even if prisoners in U.S. military custody did not qualify as POWs, they still should have received the protections of the Fourth Geneva Convention and of Common Article 3 to both the Third and Fourth Geneva Conventions, according to human rights organizations. Furthermore, human rights groups note that Article 5 of the Geneva Conventions provides that if there is any doubt about whether a detainee is protected by the conventions, “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” However, no such tribunals were established for the detainees at Guantánamo until after the Supreme Court of the United States ruled in June 2004 in Rasul v. Bush that the detainees were under the jurisdiction of U.S. courts.

Human rights organizations, such as Human Rights Watch, also charged that the United States violated the Fourth Geneva Convention’s and Hague Regulations’ proscriptions on collective punishment for offenses committed by others by attacking and bombing the Iraqi city of Al Fallûjah in April 2004 in retaliation for the killing and mutilation of four U.S. security guards hired by a private military firm. Rather than pursuing the group responsible for the killings, the attack indiscriminately targeted civilians in the city, the human rights groups said. Before mounting a second major attack on Al Fallûjah in November 2004, U.S. military forces sent Iraqi civilians fleeing Al Fallûjah back into the city. Human rights organizations argued that this was a violation of the Fourth Geneva Convention, which requires military forces to protect civilian refugees and forbids returning them to a combat zone.

Many critics of U.S. policy blamed the apparent disregard for the Geneva Conventions on U.S. secretary of defense Donald Rumsfeld. These critics noted that opposition came from within the U.S. military. In mid-2003 a group of senior military lawyers in the Judge Advocate General’s (JAG) Corps approached a leading human rights lawyer to warn that the U.S. record of compliance with the conventions was being violated. In January 2005 a dozen retired admirals and generals opposed the nomination of Gonzales as U.S. attorney general because of his stand on the Geneva Conventions. The U.S. military also brought charges against a number of enlisted men and officers accused of abusing prisoners.

In its defense the Bush administration blamed the abuses on a “few bad apples.” The White House noted that in a February 2002 memo Bush had made it clear that prisoners were to be treated “humanely.”

In June 2006 the Supreme Court of the United States upheld the applicability of the Geneva Conventions and in particular Common Article 3 to a Guantánamo detainee, Salim Ahmed Hamdan, who was facing trial on a charge of conspiracy before a special military commission. The special military commissions were established by presidential order in November 2001. In Hamdan v. Rumsfeld the Supreme Court ruled 5 to 3 that the commissions violated the Uniform Code of Military Justice and the Geneva Conventions because they did not provide the “judicial guarantees” required by Common Article 3. The Court was particularly concerned with the failure to ensure that the accused and his lawyer could be present throughout the trial proceedings and could hear all the evidence against him. The admissibility of hearsay evidence and evidence obtained through coercion were also cited by the Court. The Court rejected the findings of an appeals court and government arguments that the Geneva Conventions did not apply to the detainee because he was captured during the war against al-Qaeda, which was not a signatory to the Conventions. The ramifications of this decision were far-reaching. The Court's holding means that all prisoners in United States custody, not just prisoners of war, must be treated humanely, and cannot be tortured or subjected to humiliating or degrading treatment.

In September 2006 the Republican-controlled U.S. Congress, at the urging of the Bush administration, passed the Military Commissions Act of 2006, which stipulated that evidence obtained by coercion prior to passage of the 2005 Detainee Treatment Act could be introduced at military trials at the discretion of the presiding military judge. The law also gave the U.S. president the power to determine the meaning and interpretation of the Geneva Conventions, and it stripped the judiciary of the right to review those determinations. The law defines an “unlawful enemy combatant” as anyone who “purposefully and materially” supported hostilities against the United States or the person’s cobelligerents, as well as anyone the president determined to be an unlawful enemy combatant. That definition could apply both to U.S. citizens and non-U.S. citizens. Critics of the law argued that it was an effort to undermine the Supreme Court decision in Hamdan v. Rumsfeld, that it unconstitutionally denied people the right to habeas corpus, and that it greatly expanded presidential power. The Bush administration argued that the legislation was essential to the war on terror.