The USA's treatment of al-Qaeda and Taliban prisoners at Guantanamo Bay in Cuba dominated the news in mid-January. Amnesty International raised concerns about the prisoners being shackled and sedated during the long-haul flights from Afghanistan to Cuba (1) - which soon gave way to an outcry over the prisons themselves, with their eight-by-six-foot cages open to the elements.
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UK foreign secretary Jack Straw reportedly telephoned US secretary of state Colin Powell, to find out if British detainees were being treated humanely - before reassuring the British public that all detainees were receiving 'three culturally appropriate meals' a day and could exercise and shower daily (2).
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After US defence secretary Donald Rumsfeld argued that 'technically unlawful combatants do not have any rights under the Geneva Convention', UN human rights commissioner Mary Robinson joined the chorus of concern - worried that the detainees were being denied their 'prisoner of war' status so that the Americans could avoid adhering to the Geneva Conventions.
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Rumsfeld raised eyebrows by claiming that he 'did not feel the slightest concern' at the detainees' treatment, but he later said that the US authorities planned to treat the detainees 'in a manner that is reasonably consistent with the Geneva Conventions' (3). Accordingly, members of the International Committee of the Red Cross (ICRC) were allowed access to all prisoners.
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After interviewing the prisoners, the ICRC claimed that the USA had contravened the Geneva Conventions - but not on any of the grounds or concerns previously raised. According to the ICRC, the USA breached the conventions by releasing pictures of the detainees wearing orange cloaks, masks and goggles, which improperly exposed them to 'public curiosity' (4). The ICRC's concern highlighted the trivial nature of the complaints that had been aimed at America.
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 | | The Red Cross recommended painting arrows on cell floors, pointing the way to Mecca |
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Amnesty International soon switched tack. One week after its first press release on the prisoners, it protested 'that the very secrecy surrounding the prisoners is the most alarming thing about the present situation' - meaning that 'we simply cannot know' whether America is aiming to 'break the spirit of individuals ahead of interrogation'. Amnesty clearly wasn't impressed with the ICRC inspection, instead requesting its own access to the camp to find out whether America was behaving improperly (5).
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It is easy to ridicule the complaints that were levelled at the USA. Brigadier-General Mike Lehnert, the officer in charge of the camp, said of the prisoners, 'They get a jump suit. They don't get to pick the colour' (6). The Times (London) cartoonist Peter Brookes depicted detainees saying to their captors, 'As British terrorists we demand fully furnished rooms in Westminster with Pugin wallpaper and £100,000 expenses' (7) - in reference to the fact that, in the same week, Sinn Fein president Gerry Adams and three other republican MPs had taken up their office space in the House of Commons. And in the UK Sun Richard Littlejohn claimed that 'people pay good money for that kind of weather at this time of year'.
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The treatment of prisoners of war (PoWs) should never become a matter of ridicule. Drafted in the aftermath of the Second World War, the four Geneva Conventions of 1949 are intended to provide a basic level of protection for sick and wounded combatants on land and sea (the First and Second Conventions), for PoWs (the Third Convention) and for civilians (the Fourth Convention).
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The Third Convention contains a number of important provisions, including forbidding the use of PoWs as hostages in combat zones and outlawing the use of torture. It also requires PoWs to 'be quartered under conditions as favourable as those for the forces of the detaining power', and to have nutritious food, warm clothing and bedding (8).
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Yet compliance with the Geneva Conventions in times of military conflict has always varied between the patchy to the non-existent - hardly surprising, considering that war is characterised by the breakdown of law and order. But when it comes to protecting PoWs, the ICRC claims to have a good record and to have inspected detainees 'in almost every international conflict since the Second World War'. So in 1993, 47 countries allowed the ICRC to visit 143,000 prisoners (9). A survey carried out by the ICRC at the end of the 1990s, in which people all over the world were asked about their experience of war, underscored the beneficial effects of the Geneva Conventions (10).
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| | The Geneva Conventions only became a political issue in the 1990s |
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The Geneva Conventions have modest goals. They cannot bring wars to an end or deprive them of their savagery - but they can help to ameliorate the effects of war for the sick and wounded, prisoners of war and civilians. This goal may be modest, but it is an important humanitarian one.
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The humanitarian objective of the Geneva Conventions can only be performed if two conditions are met. First, the standard of behaviour that the conventions seek to impose must be minimal so as to acknowledge that the humanitarian objective is to be performed at a time of war. So when it comes to protecting PoWs, the standard of treatment must acknowledge that the detainees are prisoners who are being held at a time of war.
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Those who criticised the US treatment of the Guantanamo prisoners took no account of this fact. Apparently, one of the ICRC's recommendations to improve conditions at the camp was to paint green arrows on cell floors pointing the way to Mecca, so that the Muslim prisoners would know in which direction to pray (11). But if this is to be the standard of care expected under the Geneva Conventions, many combatants might think twice in future about allowing the ICRC access to their detainees.
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The second condition for the effective application of the Geneva Conventions is that they are viewed as impartial. If the conventions are seen to have a political connotation, as opposed to a merely humanitarian one, then the humanitarian goal will be thwarted. Since the Second World War, some states have occasionally sought to deny the application of the conventions for fear that they will compromise their sovereignty and raise the status and reputation of their opponents. This was one reason why the UK never acknowledged that members of the Provisional Irish Republican Army had prisoner of war status - likewise with Turkey in relation to the Kurds and India in relation to Sikh separatists.
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So in labelling its detainees 'unlawful combatants' rather than prisoners of war, the USA is following a well-established precedent. But it is a precedent that the politicisation of the Geneva Conventions has given states greater reason to follow.
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| | The conventions' effectiveness will fall as the political consequences of their application rise |
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Today's interest in the Geneva Conventions stands in stark contrast to the years after their adoption, when they attracted little comment. In university courses and treatises on international law, chapters on the law of war were omitted - with only a few specialists and the ICRC taking an interest in them. It was in these circumstances that the ICRC could effectively perform its role. During the Vietnam War, for example, the USA allowed the ICRC to visit detention camps holding not just soldiers from North Vietnam but non-uniformed Vietcong guerrillas as well (12).
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The Geneva Conventions only became a political issue in the 1990s, as the idea that their provisions should be legally enforceable took hold. The conventions themselves obliged contracting states 'to respect the conventions', and in certain circumstances required states to prosecute or extradite those suspected of committing grave breaches of the conventions. But historically, this was more a statement of intent than a legally binding obligation, and only handfuls of offenders were prosecuted for grave breaches.
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All of this changed in 1993, when the United Nations Security Council set up the International Criminal Tribunal for the Former Yugoslavia (ICTY). Based in The Hague, this court was empowered to prosecute for grave breaches of the Geneva Conventions committed during Yugoslavia's civil wars. During the 1990s a number of military and political figures from the former Yugoslavia were indicted and convicted as war criminals - a process that transformed international norms into international laws. In short, treaties that carried moral authority, but which yielded to political reality, had become legally binding documents that could trump political reality.
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Since the ICTY was set up, the movement for international criminal justice has gathered pace - and now the creation of a permanent International Criminal Court is only a year or two away.
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Prosecuting individuals for grave breaches of the Geneva Conventions will be a thankless task, as in most wars such breaches will be widespread. And the idea that combatants in the heat of battle will refrain from breaching the conventions for fear of being convicted by an international tribunal is fanciful. But by transforming the conventions into documents that can be backed up with the full force of international criminal law, it won't just be the USA that will be loathe to accept the Geneva Conventions.
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Minimal in extent and impartial in application should be bywords for anybody concerned to ensure a degree of humanitarian protection for combatants and civilians during war. The effectiveness of the Geneva Conventions will fall as the criminal and political consequences of their application rise. America's refusal to accept that the Geneva Conventions apply to its detainees at Guantanamo Bay is a sign of things to come.
Jon Holbrook is a barrister in London. Email Jon.Holbrook@btinternet.com
Read on:
When is a war not a war?, by Brendan O'Neill
A pariah made in the West, by Jon Holbrook
In defence of sovereignty, by Jon Holbrook
War crimes: prosecute at any cost?, by Jon Holbrook
spiked-issue: After 11 September
(1) USA: AI calls on the USA to end legal limbo of Guantanamo prisoners, Amnesty International, 15 January 2002
(2) 'Straw protests over al-Qaeda prisoners', The Times (London), 15 January 2002
(3) Blair wants detainees held in line with PoW convention, Daily Telegraph, 17 January 2002
(4) Downing Street denies Camp X-Ray ill-treatment, Guardian, 22 January 2002
(5) USA: Amnesty International requests access to Guantanamo base, Amnesty International, 22 January 2002
(6) US hits back as Red Cross visits Cuba detainees, Daily Telegraph, 18 January 2002
(7) Peter Brookes cartoon, The Times (London), 22 January 2002
(8) ICRC database containing the 1949 Geneva Conventions
(9) Improving respect for international humanitarian law: a major challenge for the ICRC, Cornelio Sommaruga (President of the ICRC), , 3 June 1995
(10) Peut-on célébrer le 50e anniversaire des Conventions de Genève?, Gilbert Holleufer, IRRC, Vol 833, March 1999 p135
(11) US takes softer line on Cuba security, The Times (London), 24 January 2002
(12) War & Law Since 1945, Geoffrey Best, 1997 p363
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