Is the Geneva Convention Applicable to War on Terror?

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Table of Contents

Introduction
The Geneva Convention
The Applicability of the Geneva Convention on the War on Terror
The Inapplicability of the Geneva Convention on the War on Terror
Conclusion
References

Introduction

The applicability of the Geneva Convention on the war on terror is a highly controversial topic which has raised many voices and many eyebrows amongst the prominent parties in the world. The Geneva Convention is the set of treaties which defines the treatment of the wounded, the civilians as well as the soldiers that are taken in as prisoners of war. However the recent events at the Gutanamo Bay and other American prisons where the imprisoned soldiers of the prisoners of war are held have raised the question regarding the applicability of the Geneva Convention to the prisoners of the war on terror. While one side argues that on moral grounds the prisoners should be treated as per the Geneva Convention, the more hardliners state that their position as a terrorist and as supporters of terrorism does not provide them the rights as defined for prisoners of war in the Geneva Convention.

The Geneva Convention

The Geneva Convention is a set of four treaties that were initiated in 1949 and signed in Geneva Switzerland. These four treaties protect the rights of the pope and establish standards for international law. The focus of the convention however is mostly on the treatment of the non combatant population and the prisoners of war. The convention has been adopted by 194 countries including all major developed as well as the developing countries.

The first Geneva Convention was for the relive and the amelioration of the Wounded and the sick in the armed forces. The second Geneva Convention was of similar content which also focused on the amelioration of the sick and founded of the armed forces but one step further to include the shipwrecked members as well as those lost at sea. These two conventions state that if any member of the armed forces pertaining to sea or land is sick, or wounded then he is not liable to fight or participate in the ingoing hostilities. Instead his state changes to a person with vulnerability and that he/ she should be provided care and protection. The opposing parties are required, as per the Geneva Convention, to treat, care for and protect the wounded and the lost members of the forces in a similar fashion which is adopted by them to treat their own armies. Moreover the convention also provides that in regions of hostilities medical equipment as well as medical facilities should not be attacked or targeted.

The third Geneva Convention discusses the treatment of the prisoners of war. The convention states that the POW’s should be treated in a humane manner. They should be allowed to contact their next of kin as well as have regular communication with them during their imprisonment. Similarly the POWs are also allowed gifts, relief parcels as well as their clothes and personnel belonging while being provided with sufficient food and clothing The treatment of the POWs is not supposed to be in any case less than or inferior than that of the army troop guards. They cannot be forces to confess to information other than their name, their age, their ranks and identification numbers. Moreover the POWs have to be provided sufficient medical care and treatment as well as remuneration for any work that they perform. IN case of severe illness or being mortally wounded, the Geneva Convention requires that the POWs should be handed back their respective countries and governments, and same stands true when a ceasefire takes place between the hostile parties.

The fourth Geneva Convention focuses on the protection and relief for the protected civilians who might fall in the hands of the hostile parties. The Geneva Convention states that the protected civilians need to be treated humanely as well, with respect for their religion, ethnicity and beliefs,. They are to be honored and respect has to be shown for their family rights and customers. The Geneva Convention clearly provides that the protected civilians are not to be discriminated against, tortured or harm in any bodily or psychological manner. They are to the provided with all the humane rights that they have in their home countries. The Geneva Convention also provides a category of specially protected which is reserved for the children under 15 years if age, the sick, the wounded and the old as well as the pregnant women and the mothers of children who are aged maximum at 7.

The Applicability of the Geneva Convention on the War on Terror

The arguments that have been put forward pleading the applicability of the Geneva Convention rules and laws in terms of the war on terror are numerous but of the same opinion. They state that the prisoners of war that are acquired and captured by the allied forces in the terrorism of war should be treated as per the terms of treatment for the prisoners of war in the Geneva Convention treaties. These arguments present that the prisoners of the war on terror do belong to a state. When considering the Taliban and afghani prisoners, it is stated that as Taliban was a ruling majority in Afghanistan which had formed a government there, the Taliban prisoners of war should be considered and given the status if the prisoners of war as per the Geneva Convention as the Taliban government and their forces became the regulated armed forces in Afghanistan. “The al-Qaeda detainees, even if they are given prisoner of war status, may be held accountable for their actions before the fighting began in court. Yet, when the US and allied forces commenced operations in October 2001, they also became involved in fighting with the Taliban armed forces. The ICRC has taken the position that given the amount of Afghan territory under control of the Taliban at that time, the regular Taliban forces should be considered the armed forces of Afghanistan. As both countries are parties to the 1949 Geneva Conventions, the Conventions are equally binding on both sides. Because the “regular” Taliban fighters were not involved in the attacks of September 11, they deserve POW status under international humanitarian law.” (Carvin).

The supporters if the application of the Geneva Convention rules and treaties on the prisoners of war form the war on terror are in favor of the modified modernism approach which depicts that terrorism is a form of armed conflict and as the Geneva Convention applies in term of armed conflicts, it should apply to the war on terror and its prisoners of war. The arguments that have been put forward regarding this state that the Geneva treaty should be implemented on its humane nature and characteristics to protect the wounded, sick and the vulnerable. “A treaty should be interpreted according to its “spirit” and according to the “intent” of its framers, which in this case was to protect fundamental human rights during armed conflicts. A modified version of this argument is that some of the substantive aspects of the Geneva. Conventions are customary law, and that customary law imposes additional obligations on detaining powers beyond those outlined in the Conventions. Both variants of this theory can then be used to justify demanding POW-like protections even for those detainees who most clearly lack any entitlement to them on a strict formalist reading of the Conventions. (Brooks, 2005).

It is also argues that the Geneva Convention is pot applied on the basis of territory. “All of this is made clear by Article 2, common to all four Geneva Conventions, which provides that the treaties apply to any armed conflict “which may arise between two or more of the High Contracting Parties,” regardless of whether there has been a declaration of war. This is the key language. Although Article 2 also states that the conventions “apply to all cases of partial or total occupation of the territory of a High Contracting Party,” this clause does not, and was not intended to, benefit combatants associated with a non-party.” (Rivkin Jr. & Casey, 2004) Instead, the Geneva Convention applies on the basis of humanity and on the spirit of the convention. When two members ho signed the Geneva Convention are involved in a conflict or war, they are supposed to abide by the rules set by the Geneva convention., Similarly when a member as well as a non member engage in combat they are also supposed to apply the Geneva convention when it applies to the treatment of the prisoners of war as such a combination or conflict does not eradicate or remove the restriction of the proper treatment of the prisoners of war form the member country.

The Inapplicability of the Geneva Convention on the War on Terror

The arguments that favor the inapplicability of the Geneva Convention on the War on Terror states that the people who participated in the terror based act on September 11, 2001 and the ensuring incidents are not to be provided any regards when it comes to their status as prisoners of war as a result of the war on terror. The statement that is put forward by the supported or the inapplicability of the Geneva Convention on the war on terror state the terrorism is a crime and aot a form of combat or war and as a result those imprisoned in the war on terror do not serve to be treated like the prisoners of war as specified by the Geneva convention. “Terrorism is not a form of armed conflict at all, and is merely criminal activity. Obviously, if terrorism is simply a form of crime, and not a form of armed conflict, it is subject not to the Geneva Conventions but to domestic criminal and constitutional law, which offer relatively robust protections for suspects.” (Brooks. 2005)According to some it also applies on those who participate in the war on terror with the Afghans and the Taliban but were not originally involved in the terror attacks. The basis of the inapplicability of the Geneva Convention on the war on terror is on the ideology of the Taliban imprisoned “On January 11, 2002 US Secretary of Defence Donald Rumsfield announced that the detained prisoners were being considered “unlawful combatants” and that “unlawful combatants do not have any rights under the Geneva Convention.” This was met with immediate concern by several prominent international and non-governmental organizations and in the international community (including US allies in the conflict) who insisted that the Conventions remain applicable.” (Carvin).

Another argument that is put forward is that the Islamic radicals’ do not operate on moral grounds and therefore no moral consideration should be provided to them when they are imprisoned as a result of the war on terror. As the Islamic radicals do not differentiate between the civilians and the government and the soldiers, as a result they also do not deserve separate treatment for their actions or for their support of terrorism when they are imprisoned during the war on terror. “Captured Taliban fighters, while subject to the Conventions, are denied prisoner of war (POW) status, because they “have not effectively distinguished themselves from the civilian population of Afghanistan.”5 “Moreover, they have not conducted their operations in accordance with the laws and customs of war,” as is required under Article 4 of the POW Convention.6 Under the Bush Administration’s policy, all combatants detained in the war on terror are denied POW status, which leaves them unprotected by the law of war and “at the mercy of the detaining power,” under the currently prevailing view.” (Rohlf)Some of the arguments that are put forward by the opposition of the Geneva Convention when it comes to war on terror is that the Geneva Convention is only applicable on states involved in combats. The relief and the provisions are for the non combatants and the prisoners made during the combats who might be civilians, the wounded or the soldiers. Al Qaeda has been highlighted as the main root of the organization/ society participating on the acts of terrors around the world, particularly against the western countries. As a result it is assumed that the people imprisoned due to the war on terror are supported and fights for the cause of Al-Qaeda. However they argue that as the Al-Qaeda is not a state, it does not attain the position of the state involved in a war. “Because Al Qaeda is not a state, the administration argued that the Geneva Convention didn’t apply to the war on terror. These assertions gave the administration’s arguments about the legal framework for fighting terrorism a through-the-looking-glass quality. On the one hand, the administration argued that the struggle against terrorism was a war, subject only to the law of war, not U.S. criminal or constitutional law. On the other hand, the administration said the Geneva Convention didn’t apply to the war with Al Qaeda, which put the war on terror in an anything-goes legal limbo.” (Brooks, 2006).

This view of the public and the opposition has been clearly depicted in the treatment of the prisoners of war that are imprisoned in special imprisonment camps and at the Guantanamo Bay.

Conclusion

Both the sides argue profusely for their views and opinions regarding the treatment of the prisoners of war in the war on terror and the applicability of the Geneva Convention on the war on terror. However on the basis of moral grounds and on the basis of the true sprit if the Geneva Convention, the prisoners of war from the war on terror should be treated as per the rules regulations and provisioning stated in the Geneva Convention. The main reason for the support of this view is that it is not for a person to determine who is guilty of the acts and who should be punished as the impoverished states of Afghanistan and Iraq have populations who are poor and bordering on starvation. They have been forced to conduct some acts, while some have been manipulated by others. Therefore their acts should not be punished and ill treated when they are imprisoned as soldiers opposing the war on terror.

References

Brooks, R., (2005), The Politics of the Geneva Conventions: Avoiding Formalist Traps , Virginia Journal of International Law, 46 Va. J. Int’l L. 197, 2008. Web.

Brooks, R., (2006), The Geneva Convention catch’, Los Angeles Times, B-13, Web.

Carvin, A., The Applicability of the Geneva Convention to a War on Terror Research Officer, The Canadian Institute of Strategic Studies, 2008. Web.

Rohlf, J., The Geneva Conventions and the War on Terror: International Legal Reform as a Viable Solution, 2008. Web.

Rivkin Jr., D.B., Casey, L.A., (2004), Geneva Conventions and POWs, Washington Times, The (DC), 2008. Web.

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