A fairer world: Human rights in conflict

Introduction

The Geneva Conventions are a series of treaties that regulate the international law of war. They serve to limit the things that countries can do to soldiers and to civilians during war and form the foundation of international humanitarian law (IHL). The current Geneva Conventions were adopted in 1949, in the aftermath of World War II, and were amended in 1977. They protect wounded and sick soldiers, prisoners of war, and civilians.

The four core Geneva Conventions have been ratified by 194 countries, which means that they are accepted, as law, by every UN member state, as well as the Holy See (which is a state, but not a member of the UN), plus Palestine (which is not a recognised state). They specifically address: wounded soldiers on the battlefield (First Convention), the wounded and shipwrecked at sea (Second), prisoners of war (Third), and civilians under enemy control (Fourth).

Key components of the Geneva Conventions include:

  • Warring parties must distinguish between civilians and combatants, respect civilian property, and not attack civilian populations or individuals.
  • Anyone who can no longer take part in the fighting (e.g. a wounded soldier, a prisoner of war, or someone who has surrendered) must be treated humanely and may not be killed or wounded.
  • Certain weapons that cause too much suffering or unnecessary losses to the civilian population or property are banned.
  • The wounded or sick must be given medical treatment, even if they are captured by the enemy. No one may attack a medical facility.
  • ‘Outrages upon personal dignity, in particular humiliating and degrading treatment,’ are prohibited. Prisoners of war are entitled to treatment that shows ‘respect for their persons and their honour.’

The most important clause is called ‘common Article 3’ because it appears in all four of the Conventions. Violations of this Article are called ‘grave breaches.’ The Article outlaws murder, mutilation, cruel treatment, torture, hostage-taking and extra-judicial executions against civilians and those who are unable to fight and declares that the wounded and sick must be cared for.

International Criminal Law

Common Article 3 has become very important in an emerging field of international law, known as international criminal law (ICL). It is similar to regular criminal law, in that its purpose is to investigate, try, and punish individuals who commit crimes. But, unlike in national courts, ICL only has three crimes: war crimes, genocide and crimes against humanity.

War crimes are defined in the statutes that have set up international tribunals as grave breaches of the Geneva Conventions (violations of Article 3) and/or ‘violations of the law or customs of war’. This is important because until very recently, people who committed major war crimes usually escaped prosecution and punishment, unless their country could and wanted to try them (a rarity).

Genocide includes any number of ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’ and crimes against humanity include acts of murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions or other inhumane acts directed against a civilian population.

So far, there are three courts that deal with ICL on an international level: the International Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). A third, hybrid, kind of court acts like a domestic court but uses law drawn from both national and international sources. An example of a hybrid court is the Special Court for Sierra Leone.

The ICTY and ICTR were established in 1993-4 by the UN Security Council and have both found individuals guilty of war crimes. The ICC was established in 2002 by a treaty; only the 104 states that have ratified the treaty are members of the court. It will also hear cases that deal with war crimes, and it is hoped that this new ability to punish violations of the Geneva Conventions will make the Conventions more powerful and respected.

The United States is not a member, shows no intention of ratifying the treaty and has negotiated more than 100 bilateral agreements to render US citizens and members of the military immune from prosecution.

The Rights of Civilians

As noted before, the development of ICL has made it increasingly possible to prosecute and punish those who have committed atrocities against civilians during internal and international armed conflict. The international tribunals have helped to expand these protections.

One case before the ICTR, for example, marked the first time that the definition of genocide (Article 2) was applied by a court and expanded the definition to include acts of rape and sexual violence. This represented a massive shift; up until the late 1990s, perpetrators of rape and sexual violence in times of conflict were hardly ever charged with a crime or prosecuted.

ICL is currently used to punish violations of fundamental rights after a conflict has concluded, but IHL is also invoked to protect civilians during the hostilities. The Geneva Conventions specifically allow the International Committee for the Red Cross/Red Crescent to deliver humanitarian aid and have access to civilians (and prisoners of war).

Numerous UN agencies have emergency response as an integral part of their mandate, including the World Food Programme (WFP), the UN High Commission for Refugees (UNHCR) and the UN Children’s Fund (UNICEF). Their work attempts to ensure that basic human rights are fulfilled, even in times of conflict.

The Geneva Conventions and the War on Terror

The relevance of the Geneva Conventions has become a very important question during the current ‘war on terror.’ Many people have accused the United States of deliberately ignoring the Conventions, especially at the detention centres at the Guantánamo Bay Naval Base, in Cuba.

The US government maintains that the Geneva Conventions do not apply, because the detainees at Guantánamo are not prisoners of war, but ‘suspected terrorists’ and ‘enemy combatants.’ These categories are disputed; many argue that Taliban soldiers who fought on behalf of the recognised government of Afghanistan should be treated as prisoners of war.

The administration argues that ‘An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban.

President Bush stated ‘that the Geneva Conventions have no legal applicability to members or affiliates of al Qaeda, a terrorist organization that is not a state and has not signed the Geneva Conventions.’ However, they state that all prisoners are being treated ‘in a manner consistent with the principles of the Third Geneva Convention of 1949.’ It is important to understand that the US government’s actions are designed to achieve what the government believes to be its primary objective: protecting its citizens from global terrorism.

Human rights organisations refute the US government’s claim that detainees are being treated in a way that upholds the guarantees in the Geneva Conventions. Only a handful of the detainees are likely to be charged with any crime; many are still unclear as to why they were sent to Guantánamo and are unable to challenge their detention.

There are widespread claims that even the most fundamental rights of the detainees are being violated. There is evidence that external pressure has had some effect on limiting violations: both the United States Supreme Court and the US Congress have recently taken steps to improve the government’s treatment of detainees.

Finally, human rights observers also call attention to the possibility that the US and its allies are engaging in ‘extraordinary rendition’: maintaining secret prisons and secretly transferring prisoners to countries where they may be tortured. This practice, confirmed to a limited extent by President Bush, would most likely violate the Third Geneva Convention. Some states have already issued arrest warrants for agents who may have participated in these proceedings.

Issues to consider

  • Who can enforce the Geneva Conventions? Are there ways of holding violating states to account?
  • What is the role for the United Nations in ensuring that the Geneva Conventions are respected?
  • Are the Geneva Conventions relevant in the ‘war on terror’? How can their relevance be enhanced?
  • Has your country been involved in the ‘war on terror’? How? Has your country been the victim of a terrorist act? Has your country been named as a state sponsor of terrorism? Is your country host to an alleged terrorist organisation? Has your country participated in the wars in Iraq or Afghanistan? How might these answers affect the way that your country views the role of the Geneva Conventions in the ‘war on terror’?
  • How can the fight against terrorism be conducted in a way that also protects human rights?
  • Has your state taken part in a conflict that created civilian human rights problems? What actions did your state take? Are there better ways of protecting civilians during armed conflict? What would make humanitarian and aid agencies more effective?
  • Has your country been involved in a conflict involving a pattern or incidents of sexual violence? How can sexual violence be discouraged and punished?
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