The Geneva Conventions are once again front and center in the ongoing debate over the war on terrorism with congressional approval of a bill that, in the words of The New York Times, “does not just allow the president to determine the meaning and application of the Geneva Conventions; it also strips the courts of jurisdiction to hear challenges to his interpretation.”
Any informed discussion of the Conventions must begin with the understanding that it is a product of international law. From the beginning, the ground rules of international law have overwhelmingly favored governments – which, after all, were the exclusive participants in the discourse. Armed violence against a state could legitimately be undertaken by other states. Defeated rebels might be granted terms, and often were, as was the case in the American Revolution.
Common Article 3 of the conventions was introduced to provide protection to noncombatants and surrendered fighters in civil conflicts. Its application to international conflicts is recent and based on inferences. Most of those grew out of the Palestinian intifada, in an effort to keep captured insurgents from being dealt with by Israeli law – an irony in view of today’s efforts to bring terrorist prisoners under U.S. codes. But another, older thread is worth investigating.
In the 18th and 19th centuries, the activities of privateers and similar war- makers – even those acting with the overt or tacit consent of sovereign states – were curbed and then eliminated by a mixture of coercion and cooperation among the great powers. The 1854 Treaty of Paris, which ended the Crimean War and also banned privateering, is often cited as a benchmark.
Well before the turn of the 20th century, non-state violence against states was considered a prima facie breach of international norms. Pirates were considered “enemies of humanity,” to be suppressed by the armed forces of any state wherever found. “Filibusters,” private individuals engaging in war against another country for any reason, were similarly subjected to well-deserved punishment. When extreme penalties were not implemented, the reason usually involved a jurisdictional dispute between states, as opposed to any sense that non-state belligerents merited any consideration.
This developed body of international law fell into disuse during the 20th century as states grew strong enough to handle the relatively feeble efforts of non-state challengers within their own legal systems.
The Geneva Conventions set different standards. Carrying arms openly, wearing a visible distinguishing mark, following the laws of war, and above all, being under responsible higher command – these are the central characteristics of state military establishments. They are also those most often ignored by self-defined revolutionary and resistance movements.
Frequently overlooked in the body of treaties and understandings making up the Geneva Conventions is the connection between prisoner-of-war status and cessation of overt resistance. It is a POW’s right to attempt escape in order to resume combatant status. That has nothing to do with any right to continue resistance after surrendering, whether picking up a rifle on the battlefield or organizing assaults on the guards in a POW camp. The same principle applies to noncombatant status. The humane treatment so carefully spelled out in so many documents is contingent upon accepting that “for you, the war is over.”
The Geneva Conventions, then, are best understood as an evolved body of formal treaties and behaviors. Their success has depended heavily on “ground rules,” the unwritten list of things that are done and not done. To be effective, however, the ground rules must be presented with good will.
The absence of that good will was highlighted during World War II by Germany’s treatment of its Russian POWs, and spelled out unmistakably by Japan. Imprisonments and executions after 1945 settled accounts with individual perpetrators as far as possible. Fifty years later, however, a wave of non-governmental organizations including al-Qaeda, quasi-governments such as Hamas, state-supported filibusters like Hezbollah, and private armies like Iraq’s militias are mounting a comprehensive challenge to the essentially artificial systems of defining legitimate combatants in wartime.
Controversy about this core issue of how to treat combatants and prisoners can erode public confidence and goodwill. Jenin and Abu Ghraib, Guantanamo and Quana generate the kind of malaise that discourages sensible discussion about the morality of national self-defense.
Far more than political bandages and legal wrangling are required to address effectively the controversies over Geneva’s meanings and ramifications in the context of our war with terror. Perhaps it’s time to take a look at the international laws addressing the treatment of pirates and mercenaries.
Dennis Showalter is a Colorado College history professor.
