The rules for conducting war humanely arose from the horrifying deaths of battle. Almost 140 years ago, Swiss entrepreneur Henry Dunant electrified the world with his tale of the slaughter he witnessed at the battle of Solferino, Italy, where thousands in the warring French and Austrian armies died, many from their untreated wounds.
His work led to the founding of the International Committee of the Red Cross. A subsequent Swiss conference in 1864 resulted in the first Geneva Convention.
Now recognized by more than 140 nations, altered through the years and still argued about today, the lengthy rules are viewed as the first treaty of international humanitarian law.
“Every country interprets the convention for itself,” said Alfred Rubin, professor of international law at the Fletcher School of Law and Diplomacy at Tufts University. “But, as with much of international law, if its interpretation is disagreed with by a lot of other countries, then there are results.”
The United States has been subject to criticism for its view of the convention and how it relates to fighters captured in the Afghan war and now held at the U.S. naval base at Guantanamo Bay, Cuba.
On Thursday, White House officials said the Geneva Convention applies to Taliban prisoners from Afghanistan, but not al-Qaida terrorists. They said, however, that the Taliban are not considered prisoners of war.
“It will not change their material life on a day-to-day basis. They will continue to be treated well, because that’s what the United States does,” White House spokesman Ari Fleischer said.
Conflicts over the convention are not at all rare, according to legal experts.
“They come up quite often,” said Michael Ratner, a human rights lawyer and vice president of the Center for Constitutional Rights in New York. “It’s an issue in every war.”
Sorting through provisions
One of the difficulties is that while parts of the convention are highly specific, other sections are not. As is often the case with legal writing, the devil is not only in the details, but also in the way those details are read.
The 1949 Geneva Convention contains about 170 elements, Rubin said.
Initially, the convention dealt with the treatment of the wounded on battlefields, such as the Italian scene where Napoleon III led forces against the Austrians and inspired Dunant’s “A Memory of Solferino,” which described what he saw and suggested ways to improve conditions.
In 1899, the convention was applied to war at sea. A 1907 gathering at The Hague expanded it to encompass areas such as prisoners of war and their treatment, with further refinements made in 1929. The 1949 convention included for the first time provisions dealing with the protection of civilians during war.
Perhaps the most famous provision of the convention, from years of Hollywood war movies, is the stipulation that prisoners of war are required to provide only their name, rank and serial number to their captors.
Some other conditions, ranging from access to musical instruments to salary requirements, were included in the convention, Rubin said, “to get everybody on board … Nobody takes those particularly seriously.”
And while POW status endows prisoners with certain privileges, it does not grant immunity from interrogation or from being tried for alleged war crimes.
One thing the Geneva Convention does not contain, Rubin and other experts said, is the term the United States uses to describe the men held in Cuba: “unlawful combatants.”
That phrase came from the U.S. Supreme Court’s 1942 decision upholding President Franklin D. Roosevelt’s use of a military commission to try German saboteurs captured in the United States.
“By the law of war, lawful combatants are subject to capture and detention as prisoners of war, un-lawful combatants, in addition, are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful,” the court wrote.
Requirements for combatants
The question of adhering to the “law of war” has led to a long-running and vexing issue: determining who is following the law and who is not.
The convention requires combatants to wear recognizable uniforms, openly carry their weapons and have a commander. The United States contends that the prisoners it holds do not meet these criteria, willfully targeted civilians and, therefore, are not lawful combatants.
During the Vietnam War, the United States initially considered captured members of the North Vietnamese army POWs, but it did not accord that status to members of the Viet Cong, the guerrilla movement allied with the north.
“In large part because of … concerns about reciprocity, we gradually changed our minds and determined finally that they should be treated as prisoners of war,” said Michael Glennon, a law professor at the University of California at Davis and a fellow at the Woodrow Wilson International Center for Scholars in Washington.
The topic of guerrilla groups and insurgents, Glennon added, was not fully addressed in the 1949 convention. A 1970s effort to deal with the topic resulted in two additional proposals.
But some experts such as Rubin think they are poorly constructed.
The question of applying the convention to guerrillas and insurgents, Ratner added, remains “a giant issue.”