Understanding the Geneva Convention

April 8, 2009 2:36 PM

Questions about the Geneva Convention.

I am trying to figure out if I have a few key concepts about the Geneva Conventions correct. If I am incorrect or mistaken, it would really help if you could give me some citations that explain in more detail.

From my research, I believe this is how it works:

1) If you (a country) are a signatory to the Geneva Convention, then you are required to comply with it even when the other party didn't sign. You can't just comply with it only when involved with another party who also signed and ignore it if you believe or claim a person comes from a country (or non-country political group) that didn't sign. YOU signed, you have to comply. (Otherwise we have a huge loophole that any given person can simply be declared as belonging to a non-signatory country or group and suddenly have no rights at all.)

2) You (the country) are required to comply at all times on your own soil or on "territory" you control such as foreign bases and camps. The world is made up of "territory you control" or "foreign soil" (other states) - there are no gray areas. You can't transfer someone to another place or state for the purposes of skirting the Geneva Convention mandated treatment, and still be in compliance with the Geneva Convention (3rd convention, article 12).

3) The primary purpose of the Geneva Convention is to ensure that people have rights - either as residents or citizens of a place, or as prisoners (people who are detained, even when they have not been declared "prisoners of war"). There is no gray zone where someone is not entitled to the rights of residence or citizenship of a place, and also not entitled to the rights under the Geneva Convention - where they have no rights at all and a country can simply hold them indefinitely without charging them (as a criminal or prisoner), without giving them a chance to defend themselves against the charges.

posted by jcdill to law & government (9 comments total)

Your point #1 is incorrect. Signatories are not bound by the convention if they are fighting against someone who violates the convention, irrespective of whether the latter is or is not a signatory.

Those who wrote the treaty were concerned about the "free rider" problem. Their goal was a noble one: to try to reduce the horrors of war. And they recognized that if the treaty was unconditionally binding on signatories, then it would encourage nations to not sign, because it would give non-signatory nations an advantage when fighting against signatory nations.

So the treaty says that signatories are not bound by provisions of the treaty if their opponents violate those provisions. That is because those who wrote the treaty recognized the value of deterrence as a way of giving non-signatories an incentive to obey the provisions of the convention anyway.

This is one critical way in which the Geneva conventions (and the Hague convention, and certain other related treaties) differ from the ICC treaty, because under the ICC treaty signatories are bound unconditionally even if fighting against someone who violates its provisions. The ICC treaty does not recognize the value of deterrence.
posted by Chocolate Pickle at 3:15 PM on April 8

You asked for a reference:

That the relationship between the "High Contracting Parties" and a non-signatory, the party will remain bound until the non-signatory no longer acts under the strictures of the convention.

posted by Chocolate Pickle at 3:19 PM on April 8

Have you actually read the Geneva Conventions?

Start (wounded soldiers on the battlefield) by (wounded and shipwrecked at sea) doing (prisoners of war) that (civilians under enemy control).

The reason I say ask is because your questions suggest that you haven't read them very closely, as Article 2 of all of the four main conventions answers your first question precisely. The relevant portion reads:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Basically, if two nations are at war, and one is a signatory while the other is not, the signatory nation is bound by the provisions of the Conventions until the non-signatory violates them. Basically, if you're playing by the rules, you get the benefit of the rules, even if you haven't formally recognized them.

Your second question actually restricts the reach of the Conventions. Signatories are bound by the provisions of the Conventions everywhere. Article 12 of the 3d Convention makes no distinction on the basis of geographic location; the distinction is on who has custody of the prisoners, regardless of where they are located.

Your third question sort of misses the point too. Whether or not a given person is a citizen of a particular state or of no state at all is, as you've guessed, irrelevant. The degree to which individuals in violation of the Conventions should be afforded the protections of the Conventions is matter of some controversy, and one not resolved by the Conventions themselves. Bleeding heart *cough* international human rights activists argue that the protections of the Conventions should be afforded to all persons on the basis of inherent human dignity, but the Conventions do not so require.

But there is no question that the Conventions permit captured individuals to be detained for the duration of hostilities. The only people who the Conventions require be repatriated before the cessation of hostilities are those who are significantly sick/wounded/otherwise impaired. Furthermore, the Conventions do not require that detaining powers offer prisoners any kind of process whatsoever. No charges need ever be brought.

A quick WestLaw search yields the following interesting-looking article (which I have not read but which does appear to be on point):
Lori Hosni, "The ABCs of the Geneva Conventions and their applicability to modern warfare," 14 New Eng. J. Int'l & Comp. L. 135 (2007).
posted by valkyryn at 3:19 PM on April 8

I think the source of confusion here is Protocol I.

Francs-tireurs, insurgents and guerrillas were afforded prisoner of war status by the Third Geneva Convention provided that they carried arms openly, had superiors they were responsible to and distinguished themselves from civilians by a distinctive sign, i.e. an armband.

Protocol I extends these protections offered to Francs-tireurs, insurgents and guerrillas in the Third Geneva Convention by giving them prisoner of war status even if they don't distinguish themselves from the civilian population. Article 4 of the Third Geneva Convention requires combatants to have a "fixed distinctive sign recognisable at a distance"; Protocol I releases lawful combatants from this obligation. Without such distinctive identification lawful combatants can come under attack from enemies posing as civilians without the enemy committing perfidy or affecting the legality of their combat status. Civilians may be more likely to be attacked by combatants who are threatened by an undistinguishable enemy. This is especially relevant in peace keeping operations as whilst civilian police forces are trained to assess a situation and only to fire if certain of their targets' hostile intent, militaries are trained to assess targets and attack if not certain of their peaceful intent.

Protocol I further gives all combatants, lawful under Article 4 of the Third Geneva Convention or not, an equivalent status to 'prisoner of war' with the same rights and protections, when captured, regardless of their adherence to the laws of war. Whilst prisoner of war status under the Third Geneva Convention is contingent upon adherence to the laws of war, under Protocol I no breach of the laws of war can place an enemy combatant outside the scope of any rights or protections afforded to captured lawful enemy combatants.

Protocol I is very controversial. Opponents say that it rewards violation of the Third Convention, and in so doing increases the danger to non-combatant civilians.

The specific controversy over the last few years (which I infer is what you're thinking about) has been exactly this kind of prisoner. The Bush administration determined that they were not entitled to POW status under the Third Geneva Convention. The "international human rights activists" said that under Protocol I they were still entitled to it. The Bush administration said that Protocol I didn't apply to the US because the US hasn't ratified it. The IHRA's said that it applies to everyone even if they have not ratified it -- which is a peculiar claim. Generally that's not how treaties work.
posted by Chocolate Pickle at 6:11 PM on April 8 [1 favorite has favorites]

Chocolate Pickle, thanks for your very helpful answers!

I did read the 4 Geneva Conventions, but unless one is well versed in this field it's a bit hard to parse - thus my questions. I also tried sites that "explain", but again my questions weren't covered and I was more confused than before.

I guess my question boils down to:

If a government can simply declare someone (who is not in uniform, not part of a regular army) as not being entitled to the protections from the Geneva Convention, then they can do this not only on foreign soil but also at home. All they have to do is declare that a person is "the enemy" and suddenly that person has *no* rights - no right to due process as a citizen or as a resident or as a POW.

The government can also skirt my issue raised in #1 above by simply declaring the person is part of an organization or group that is not a signatory to the Geneva Convention even if the person's country (of citizenship or residence) IS a signatory.

It's like saying: "I declare you are a witch. Witches have no rights. Burn her!"

How does the Geneva Convention address groups of people who do not identify with a country, particularly nomadic people? What about Gypsies who move between countries in Europe? What about Bedouin Arabs who move thru the deserts of the middle east, and don't consider themselves of any one specific country?
posted by jcdill at 2:13 PM on April 10

You seem to be assuming that the Conventions (note the plural) are comprehensive treaties that covers every possible situation. They are not, and they were never intended to be.
posted by Chocolate Pickle at 3:01 PM on April 10

jcdill, you also seem to have missed the point that whether or not an opponent is a signatory is irrelevant if they keep the terms of the Conventions. Only an individual or group of individuals who violates the terms of the Conventions will not be protected by them.

Persons with no legal nationality would be treated as non-signatories, i.e. they would be afforded the protections of the Convention regarding prisoners or war or civilians, unless they violate the terms of the Conventions.

This is why the US executive branch is so careful to call their detainees "enemy combatants" instead of the more traditional "prisoners of war." Calling them POWs suggests that they are protected by the Conventions. But if you take up arms without belonging to a group which fulfills the following conditions:

(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

then you will not be protected by the Conventions as a POW. As the "insurgents" we're rounding up in various places around the world don't generally fulfill any of these categories, the idea that they have forfeited any potential protections of the Conventions is pretty compelling. They are generally subject to almost no command structure, deliberately attempt to blend in with civilians, usually conceal their armaments, and have absolutely no respect for the laws and customs of war (i.e. they deliberately target both hospitals and civilians). Historically, such outlaws would simply be rounded up and summarily executed, with their corpses prominently displayed near the scenes of tehir crimes as a warning to others. But the international human rights movement has been successful in making such expedient and justified moves politically unpalatable. Hence the move towards detention.

A government cannot skirt the Conventions by declaring that their detainees do not belong to a signatory of the Conventions. They might be able to skirt them by asserting that their detainees have violated the Conventions. But in either case, the Conventions do not require prisoners to be given an opportunity to challenge their detention in a court of law.

Look, the Geneva Conventions only cover situations of armed conflict. They aren't applicable to non-military situations at all. Furthermore, the Conventions are designed to mediate the relationship between a sovereign power and citizens of other states/no state, not the relationship between a government and its own citizens. The Conventions generally cannot and do not provide any protections which exceed those provided by a given nation's internal civil rights structure. They were created to deal with situations which aren't covered by those legal structures. So if the government came to your door tomorrow and arrested you without charge or an opportunity to contest your detention, your response would be based not on the Geneva Conventions, which would offer you little protection, but the US Constitution and the statutes and laws created under the authority of the Constitution.

Furthermore, there has never, to my knowledge, been a case where the US Supreme Court--or any other national court, for that matter--has recognized the existence of a private cause of action for violation of the Geneva Conventions. You'll usually need to find some jurisdictional hook based upon a given country's laws if you want their courts to listen to you.
posted by valkyryn at 11:40 AM on April 11

At root, your confusion seems to have less to do with the Geneva Conventions themselves than on the relationship between national and international law. This is understandable, because that relationship is hugely controversial and far from clear.
posted by valkyryn at 11:42 AM on April 11

valkyryn,

The problem is not so much about people who "took up arms" but with others. Let's take a hypothetical person "Bob". He didn't take up arms, but the government believes he might be involved with a group that did (perhaps involved in planning, or fund-raising... or not). But what if he isn't actually involved with that group? Bob didn't take up arms, and hasn't personally done anything to violate the terms of the various Geneva Conventions (improper treatment of prisoners etc.) and it hasn't been proven (no charges have been filed, Bob hasn't had a chance to refute or defend against charges) that Bob belongs to a group that has. Bob's citizenship, nationality, or residence is from a nation that does comply with the terms of the Geneva Conventions. Isn't Bob entitled to these protections until such a time as he is proven (charged, and given a chance to refute/defend against the charges) to belong to a country or group that doesn't adhere to the terms of the Geneva Conventions?
posted by jcdill at 1:49 PM on April 14