4
WILLIAM I. HITCHCOCK
Do the Geneva Conventions of 1949—the cornerstone of international humanitarian law—belong in the history of human rights? It seems not: most surveys of human rights history neglect the Conventions entirely. Historians rarely place Geneva alongside other founding documents of the “human rights revolution” of the 1940s.1 To be sure, historians of human rights will argue that the Geneva Conventions do not figure prominently in their work because the Conventions form part of the laws of war. The laws of war, or international humanitarian law (IHL), date back many centuries to the age of chivalry and evolved through painstaking interstate negotiation over what constitutes suitable, and unsuitable, behavior by armies on the battlefield. Originally, the laws of war, unlike the post-1945 body of human rights law, assumed no sacrosanct rights for the individual. Rather, they were concerned with restraining and codifying state power in times of war—times which are, after all, often desperate and can lead states to take drastic actions against their enemies. The aim of these laws of war has been to protect soldiers, should they become captives, from extreme brutality and punishment by enemy states and to protect civilians from depredations by enemy armed forces. In this, their ambitions are limited to the behavior of states and armies with respect to a wounded or captured soldier or a noncombatant who is unfortunate enough to be swept up in the maelstrom of war. As a consequence, they do not posit any universal individual rights inherent in human beings.
Yet this defense—that Geneva does not belong in the human rights “story”—has of late been fatally undermined. Powerful forces have combined to bring Geneva to the forefront of human rights debates. First, scholars of international humanitarian law have recently noted that during the post-1945 period, the laws of war and human rights converged. Today, legal scholars—if not historians—generally consider the Geneva Conventions as one of a series of international treaties that form part of the human rights regime, and that compel states to recognize and respect the inalienable right of individuals to exist in freedom, security, and dignity.2 What is more, since the beginning of the “global war on terror” (GWOT) in 2001, the United States government also has been intensely preoccupied with the meaning of the Geneva Conventions and their power to bind states in their prosecution of war against shadowy global networks of terrorists. The United States has honored the Geneva Conventions only in the breach, but this breach has brought renewed attention to the text of the Conventions and placed it squarely in a global debate about human rights in the war on terror. Further, human rights activists, who have heartily criticized the United States’ effort to deny Geneva protections to certain classes of prisoners, have raised the Geneva Conventions to a greater degree of visibility than ever before. Finally, the courts of the United States, most notably the U.S. Supreme Court, have taken up the question of Geneva’s applicability in the war on terror. Scholars, governments, activists, and jurists, then, have pulled the Geneva Conventions from the periphery of the global human rights conversation to the center. It is time that historians follow suit.
The Geneva Conventions of 1949, which are four separate treaties combined into a single charter for the protection of wounded soldiers and sailors, prisoners of war, and civilians in war zones, might have lain largely invisible for another sixty years had it not been for the events of September 11, 2001, and the subsequent launching of the war on terror by the United States.3 To be sure, the Geneva Conventions had been briefly controversial in the Korean War, when North Korea refused to abide by its guidelines for the treatment of captured prisoners, and also in the Vietnam War, when captured U.S. pilots were routinely tortured by the North Vietnamese forces. But the texts themselves were not at issue in these cases: the mistreatment of captured enemy soldiers was explicitly banned by the Geneva Conventions, and the argument made by North Korea and North Vietnam—that the soldiers and airmen of the United States were war criminals because they had killed civilians during combat operations—was anticipated and specially refuted in the Convention itself. The United States, indeed, reaped some degree of international propaganda value by making it plain that it adhered to the Geneva Conventions even when its enemies flaunted it. The failure of the Geneva Conventions to compel respect for its articles was lamentable and disappointing; but at no point in the Cold War era were the articles themselves subject to serious dispute.4
September 11 changed everything, because it led the United States to reconsider its position toward the Geneva Conventions: whereas previously, American leaders had publicly embraced Geneva and its strictures against the mistreatment of captured enemy soldiers, after 9/11 the United States came to see Geneva as an obstacle to achieving its aims in the global war on terror, a conflict in which America’s enemies were not soldiers of a clearly recognized national military force but transnational terrorists and their allies. To understand this shift in U.S. policy toward an adversarial relationship to the Geneva Conventions, historians must study the text of the Conventions, as well as their origins. Only after knowing precisely what they say and why they say it can we track the later efforts made by American officials to skirt, defy, or render irrelevant the Conventions. A detailed historical analysis of the text reveals a critical link between the laws of war and human rights, and shows that Geneva has played a vital role in introducing key “human rights” concepts about the inviolability of human beings into the laws of war. Human rights historians, then, can find much in this convention to illuminate the ways that human rights “travel” across legal regimes and take on weight and power sufficient enough to compel the attention of even the world’s most powerful nations.
The origins of the Geneva Conventions reach back to the nineteenth century, when Henry Dunant, a visionary Swiss, conceived of the idea of a humanitarian organization that could offer neutral and wholly disinterested services to wounded soldiers. Dunant was motivated by the appalling carnage of the Battle of Solferino (1859), which he witnessed, when thousands of wounded French and Austrian soldiers died because of lack of water and basic medical care. Conspiring with a small number of humanitarian countrymen, Dunant helped found the International Committee of the Red Cross (ICRC) and, in 1864, framed the first Geneva Convention: an international agreement for the provision of medical care to wounded soldiers regardless of their nationality. In 1899, and again in 1906–07 at the Hague, the ICRC pressed for new rules concerning the treatment of the wounded on land and sea, as well as of prisoners of war. These were promulgated and blended with the Geneva agreements, forming the body of international law in place during the First World War. Another revision and expansion occurred in 1929, and it was this Geneva Convention Relative to the Treatment of Prisoners of War that applied throughout the Second World War. The 1929 agreements focused on the rights of prisoners captured during war and the obligation of the detaining power to treat prisoners humanely during their captivity.5
Plainly, each of these successive agreements, from 1864 to 1929, was designed to meet deficiencies that had become apparent in the Conventions during a just-concluded war; they share a reactive, backward-looking character. Yet no amount of foresight could have anticipated the ideological foulness of the Nazi regime and the barbarism of the Japanese empire. It was the failure of the 1929 Convention to imagine a world of genocide, extermination camps, torture, mass reprisals carried out on innocent civilians, forced transfers of populations, death marches of prisoners, and other such acts of destruction that brought the ICRC to the conclusion—even while the war was still raging—that a new, comprehensive and ambitious document was needed, one that aimed to offer international protection to all peoples caught in the maelstrom of war. In February 1945, the ICRC announced its intention to begin a revision process of the POW convention and the creation of a new treaty to cover civilians in wartime. In July 1946, a meeting of national Red Cross societies began work on the process, and in April 1947, a Conference of Government Experts convened in Geneva to hammer out working drafts. These were then submitted in August 1948 to the XVII International Red Cross Conference in Stockholm, which approved the drafts and arranged for a major diplomatic conference to promulgate the final revised Geneva Conventions. That conference, attended by fifty-nine national delegations, met in Geneva from April 21 to August 12, 1949, and it was there that the final texts of the four Geneva Conventions for the Protection of War Victims were approved.
Of course, the 1949 Conventions were not wholly new. They were built upon the foundation of the 1929 text, some of which was substantially retained. For historians of human rights, what makes the most interesting reading is the text that was added during the lengthy and intriguing negotiations that took place over the period from 1946 to 1949. These were, of course, precisely the same years when the United Nations was coming into shape, when the Nuremberg Trials were held, and when the Universal Declaration on Human Rights and the Genocide Convention were being hammered out. It was a moment of innovation and idealism in the area of international law. The ICRC sought to take advantage of this propitious moment. Not only did it push for the expansion and revision of rules concerning the treatment of prisoners, but it also called for, and secured, an entirely new convention—the Fourth Convention—to be added to the three that had predated the war. This was the most ambitious component of the 1949 agreements and the most novel: it outlined protections for civilian noncombatants in war zones and defined the obligations of warring states to protect their well-being. It was this extension of the Geneva principles to civilians that marked a dramatic shift away from a narrow conception of laws of war as applicable to soldiers toward a capacious and inclusive set of international laws that would protect all peoples in wartime, whether active combatants or passive civilians. All peoples, the 1949 Conventions imply, are vulnerable in times of war; all peoples, therefore, must have recourse to some kind of protection from wanton violence, unjust punishment, and persecution.
Throughout the revision process, there emerged a fundamental conflict between those who wanted to push the “humanitarian” agenda—mostly continental European states that had endured direct German occupation, as well as the ICRC itself—and those states, especially Britain and Australia, and occasionally the United States—that were determined to do nothing that would weaken the privileges of a state to protect its national security. A good example of this tension was visible in the language of a proposed preamble to the Conventions. In the preliminary meetings of Red Cross societies in the summer of 1946, the ICRC, supported by the French delegation, proposed opening language for the revised convention that would “guarantee in all circumstances the essential rights of the individual, as well as the respect of the human dignity of all persons who, for any reason whatever, are in the hands of the enemy.”6 The signatories were to have universally embraced a ban on inhumane treatment, torture, the taking of hostages and summary execution. “Respect for the personality and dignity of human beings,” the ICRC stated, “constitutes a universal principle which is binding even in the absence of any contractual undertaking.”7 But the British opposed the preamble, marking out battle lines that would continue throughout the negotiations. The British delegation saw the preamble precisely for what it was: an effort to create a blanket provision of human rights and throw it over the whole of the specific text that followed. Fighting a delaying action, the British insured that no agreement could be reached on the wording, so the idea for a soaring preamble, acknowledging the submission of the laws of war to the broader principle of sacrosanct human rights, was dropped.8 Even so, this is a clue to the intentions of at least some of the framers: the 1949 Conventions were infused with, and guided by, a universal conception of human rights that had never before been included in the laws of war. In drawing upon the experience of a global and intolerably cruel war, the framers of the 1949 Convention pushed the laws of war outward to cover previously unprotected categories of persons and to define the rights of all persons, not just soldiers, who might find themselves at the mercy of captors or invading armies. Here is the strongest argument for placing the Geneva Conventions of 1949 alongside other documents that form “the human rights revolution” of the 1940s.
To illuminate this shift from a narrow to a broad conception of personal rights in wartime, the historian can select a number of key debates from the revision process of 1946–1949. In particular, three questions debated during the redrafting of the Conventions reveal the way the human rights agenda began to penetrate into the laws of war. First, what kinds of combatants should the Third (prisoner of war) Convention cover—only soldiers, or other kinds of informal militias and resistance groups, too? Second, if a person is not a POW and therefore not covered by the Third Convention, is he or she automatically covered by the Fourth Convention, the new Civilian Convention? Or is there a crack in the system into which unlawful combatants, those who are neither soldier nor civilian, might fall? And if so, what rights are they to be granted, if any? And third, do the Conventions apply in conflicts other than those between sovereign states, that is, so-called wars not of an international character? If so, what rules govern sovereign states engaged in internal or nonstate conflicts? And how might such rules impinge on national sovereignty? Each of these issues triggered difficult and drawn out debates in the late 1940s; each has at its core a tension between laws of war and human rights; and each has continued to be the subject of heated dispute in the public discourse of U.S. foreign policy since 2001.
The first issue was the most elemental to the Conventions: who is a prisoner of war? Here the Third Convention drew on language that had been included in Article 1 of the 1907 Hague agreements. “The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions,” that agreement declared. Protected persons must be “1. commanded by a person responsible for his subordinates; 2. have a fixed distinctive emblem recognizable at a distance; 3. carry arms openly; and 4. conduct their operations in accordance with the laws and customs of war.” The 1907 agreement also granted protection to ordinary peoples who spontaneously rose up against an invader: “inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.” Thus, even those involved in a popular uprising against an invader had been covered by the 1907 agreements. So clear and unambiguous were these 1907 terms that they were retained in 1929 and again in the 1949 Conventions.
Yet the new 1949 Conventions went considerably further by extending Geneva protections to long-term resistance movements—without any distinction as to the duration of the occupation. Provided that irregular resistance units had an identifiable commander, wore some sort of distinctive emblem, carried arms openly, and abided by the laws and customs of war, they too would enjoy full POW status should they fall into captivity. [GC III, 4 (2)] The extension of Geneva protection to resistance fighters was an enormously acrimonious issue during the revision process. It was driven by the experience of World War II, when the German army and security forces refused to recognize resistance fighters as legitimate combatants. They were, when caught, summarily shot, or transported to jail for harsh interrogation as a preliminary to transfer to concentration camps. French, Belgian, Danish, Dutch, Norwegian, Czech, and Polish delegates joined forces in the negotiations. Their nations had experienced German occupation and witnessed extreme brutality. They wanted resistance fighters to secure the same protections as soldiers. The Danish delegate put it this way: “in the case of modern warfare … warlike acts committed by civilians against the aggressor could no longer be considered illegal. Civilians who took up arms in good faith for the defense of their country” should be protected by the Conventions.9 But an intense effort was launched by the delegation from the United Kingdom to roll back such protections. Why did Britain, a nation that had done so much to encourage armed resistance to Hitler across occupied Germany, resist the introduction of protections into the Conventions for resistance fighters?
Documents from the British War Office provide the answer. Britain had just fought (and lost) a war against Zionist “resistance” fighters (who the British called terrorists) in Palestine and was fighting a powerful anticolonial insurgency in Malaya. Predictably, British officials wanted to avoid creating protective rights for anticolonial nationalists. The British were also aware that the Soviet Union, which at Geneva was also championing the idea of protecting resistance movements, was in 1946–47 using fifth columnists across Western Europe to foment strikes, political instability, and economic chaos. The geopolitics of empire and the Cold War drove the British position. British officials felt that the proposal to protect resistance units would allow any person who opposed an occupation force—or an empire—to conduct hostile attacks on an occupying force but then seek protections as a “resistance” fighter. Any effort to offer rights to resistance units would, the British felt, encourage random violence and terrorism in the colonies. The British delegation in Geneva, however, realizing that opinion in the conference was strongly against them—and the United States offered no help in this case—retreated to a new position: protections should be granted only to fighters of resistance movements that were really substantial and had permanent headquarters and controlled actual territory. Even this position was rejected, and in the last analysis, the British could only win a small point: resistance fighters, in order to secure POW status, must have an identifiable commander, wear some sort of distinctive emblem, carry arms openly, and abide by the laws and customs of war—a fairly low threshold.10
The British, driven by imperial self-interest, were looking forward to an era of colonial policing and national liberation movements, rather than backward to a time of heroic underground movements causing havoc for Hitler’s forces in Europe. But the dispute is revealing: not only were formerly occupied countries in favor of extending protection to resistance movements, but the ICRC itself was pushing this agenda as a means of extending Geneva protections to as many people as possible, whatever their wartime role. The ICRC had concluded that in an era of total war and ideological mobilization, the old categories of soldier and civilian were being eroded; international law had to keep up with these realities. The ICRC made its own interest clear in the wording of GC III, Article 5: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” This meant that the default position was that all persons suspected of hostile activity against a state must be accorded Geneva rights until their status could be determined by a tribunal. This article has compelled signatory states to treat hostile but irregular combatants that they might capture as innocent before proven guilty and to insure that they receive a fair trial. In short, the extension of POW status to resistance fighters was a crucial moment in extending the laws of war beyond traditional forms of warfare, and it opened the way to challenges of unlawful detentions by states who simply wanted to arrest potential suspects.
A second and related issue of interest to human rights historians concerns the Civilian Convention and the extent of its coverage. The Fourth Geneva Convention, entirely new in 1949, was designed to protect noncombatants “who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” (GC IV, Article 4) That is, any civilian whose nation is occupied by a hostile power has rights—not be tortured, imprisoned, transported, raped, or in any way deliberately and unjustly harmed by the occupying power. The roots of the Civilian Convention lie obviously in the experience of German occupation of Europe and Japanese occupation of Asia, when these invading conquerors imposed barbaric and genocidal policies upon conquered peoples.
There was little dispute in the Stockholm or Geneva meetings about the importance of stipulating such protections for civilians. But there was sincere concern that enemy aliens inside the home territory of a warring state, or spies and saboteurs who might do harm to an occupying force inside a foreign country, could strike at a military target and then melt back into the civilian population, only to claim the status of protected person under the Civilian Convention. What should be done about such persons who wage war while posing as civilians? Article 5 of the Fourth Convention tries to walk a fine line between state interest and human rights. As to the first category of enemy aliens in the home territory of a given state, if “an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favor of such individual person, be prejudicial to the security of such State.” That is, on its own home territory, a state could invoke national security to apprehend suspected subversives. However, when a state was in occupation of foreign territory, the equation changed: “Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.” This language was significant: it meant that a spy or a terrorist who was aiming to strike at the occupying forces of a combatant state could be apprehended as a legitimate security threat, but that he lost only the right of communication with the outside world. That is, a captured spy or terrorist could not alert his handlers of his whereabouts or the fact of his capture. Without a doubt, this was a major achievement for the delegations, like the British, who wanted to protect the rights of states to detain saboteurs or others who waged a clandestine war in occupied territory. The humanitarian states in the 1949 negotiations—France, Norway, Sweden, Denmark—conceded to the British that spies and saboteurs should not be granted all the protections afforded to civilians by the Fourth Convention. But, as the Norwegian delegate put it, even spies and saboteurs “should nevertheless be protected against criminal treatment and torture.”11 Article 5 therefore represented a crucial compromise that allowed states to apprehend and detain subversive persons. As the ICRC’s director for general affairs, Jean Pictet, stated in his masterful commentaries on the Conventions, this language is “an important and regrettable concession to State expediency.”12
Yet, the humanitarian impulse is still marked in the rest of the article’s language: an enemy alien, or a spy or saboteur captured during military operations in a foreign land maintained certain basic human rights: “In each case,” Article 5 continued, “such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.” (GC IV, Article 5) That is, even the most loathed and vulnerable captives—a spy or a terrorist—forfeited only his right to communicate with the outside world and that only temporarily. He did not forfeit a right to trial, nor could his captors treat him harshly. He must at all times be treated “with humanity.” This is a far cry from the old-school laws of war, in which spies, saboteurs, or illegal combatants had no rights at all and could be executed on the spot. On the contrary, the text is perfectly clear that even guerillas have some basic rights to trial and to decent treatment, if not to full POW status. As Jean Pictet put it, “every person in enemy hands must have some status under international law … There is no intermediate status; nobody in enemy hands can be outside the law.”13 The point is this: the Geneva Conventions of 1949 had again worked their conjuring trick, extending rights to even the lowest of subversive bombthrowers and opening the way to a claim that rights inhered in all peoples, even illegal combatants. The laws of war, again, were being extended to cover an ever larger community from which virtually no one was exempt.
The significance of extending protection to so many categories of people is immediately clear when one considers the issue of interrogation. Extracting time-sensitive information from a saboteur or a terrorist in wartime would seem to be a vital national security interest. Yet the Geneva Conventions, by extending Article 5 even to saboteurs and spies, effectively bans the use of “physical or moral coercion” upon anyone, no matter how useful and timely his information might be to a state at war. If soldiers as well as civilians, resistance fighters as well as spies and saboteurs, do have some basic inalienable protections—the latter giving up only their right to communication by virtue of their illegal activities—then all are, in some fashion, “protected persons” and none could be harmed in any way to extract information from them. It follows, then, that GC IV articles 27, 31 and 32, which ban torture and any physical violence upon protected persons, apply to all captives of any kind, regardless of their actual behavior on the battlefield. We would expect to find in these Conventions that the mistreatment of captive soldiers or civilians is explicitly banned; but it is amazing to see how far the family of “protected persons” has been extended by Article 5, which gave some basic protections even to captured illegal combatants. The Conventions expel no one completely from its protected community. There is no “spider hole” down which a detained person in an occupied territory can be thrown—no place a captured suspect could be imprisoned where these restrictions against coercion would not apply. Pictet made it clear that the ICRC meant these prohibitions against violence to have the widest possible meaning: “the requirement of humane treatment and the prohibition of certain acts incompatible with it are general and absolute in character … They are valid ‘in all circumstances’ and ‘at all times.’” As Pictet pointed out, it is in times of war and extreme national danger that “human values appear to be in greatest danger,” and therefore it is precisely then that the principle of humane treatment for all captives must be most urgently defended.14 The agenda of the ICRC to expand rights to all peoples in wartime was clearly gaining the upper hand over the concerns of national security and raison d’état.
Nothing is so demonstrative of the far-reaching humanitarian ambitions of the ICRC than “Common Article 3,” a wholly new article that was drawn up in the revision process and inserted into all four conventions with exactly the same wording. Common Article 3 treads on one of the most sacred principles of the laws of war: national sovereignty. The article asserts that certain principles of the Geneva Conventions—which were originally designed to regulate war between states—should also apply in cases of internal conflict, uprisings, or civil war. According to Article 3, in cases of “armed conflict not of an international character,” certain specific provisions, especially the humane treatment of civilians, as well as captured or ill combatants, must be respected. Although the entire text of the Conventions was not made applicable to civil wars and internal conflict, “violence to life and person,” “outrages upon personal dignity,” and torture were explicitly banned. And if such principles applied in cases of internal conflict, then the logical implication was, of course, that this requirement to treat all people humanely applied to international war as well. As Jean Pictet pointed out, this was for the ICRC “an almost unhoped-for extension” of the basic principle of the inviolability of the human person into the laws of war.15 How did this dramatic shift happen and what has been its significance?
The idea of extending Geneva principles to civil wars had been taken up in 1938 by the International Red Cross Conference, in an atmosphere much influenced by the atrocities committed during the Spanish Civil War, but the outbreak of the war in Europe derailed the matter until the postwar revision process of Geneva began. With the memories of Nazi atrocities still fresh in their minds, ICRC officials moved rapidly to assert the applicability of certain basic standards of humane treatment during any and all conflicts, even those conflicts that were limited to the territory of one state. The usual arguments of the sanctity of state sovereignty had been much weakened by the abuse of that privilege by the Third Reich, and so an article was drafted at the 1947 Stockholm meeting that required all High Contracting Parties to recognize the principles of the Conventions in “civil war, colonial conflicts, or wars of religion.” More striking was the proposal that “the application of the Conventions shall in no wise depend on the legal status of the parties to the conflict.”16 This suggested a blanket application of Geneva to any group who might be waging a civil war or who might be the subject of an attack inside a sovereign state. It was a frontal assault on the principle of state sovereignty. Clearly, the ICRC, as it had done with the preamble, was trying to insert a universal principle—that of the inviolability of the human person, whoever he or she may be—into the laws of war.
When this text came before the delegations at Geneva in the spring of 1949, the British mounted a vigorous rebuttal. The UK delegation knew that previous “conflicts in Spain, China, Indonesia and Palestine have led to strong pressure to make the Conventions applicable to civil war. It will be almost impossible for the UK to resist this pressure.” But the British felt the threshold for triggering Geneva protections for civil wars was being set far too low. Their position was that only sovereign governments should be allowed to declare when a civil war existed, for otherwise any insurgent group could claim to be fighting a civil war and so gain access to Geneva protection for its fighters. Initial draft language seemed to offer protection to any group involved in internal strife of any kind, or even two nonstate groups fighting each other. The British cabinet heaped scorn on the notion of giving treaty protection to all squabbling adversaries inside a sovereign state: “It would cover, for example … an armed disturbance—in a colony for example—over an unpopular tax, ‘racial riots’—between Jew and Fascist for example, or between Negro and White—and so-called ‘wars of religion.’” Clearly, such commitments to protect all combatants anywhere in whatever cause were “capable of misrepresentation by subversive interests, and in colonial territories in particular might successfully be used as a propaganda document to instruct the native that he owed no allegiance towards lawfully constituted authority.” Extending the conventions to civil war “strikes at the very root of national sovereignty and endangers national security.”17
The British delegation knew that it would be difficult to keep civil wars out of the Convention altogether, and so they prepared a fall-back position in which signatories would apply the “principles” of the Convention to civil wars, rather than the precise binding text of the whole treaty. In return for this concession, the British would insist on removing all references to colonial conflicts and wars of religion. After what Sir Robert Craigie, the leader of the British delegation, described as “a war of attrition” with the other states at the negotiations, the British lost the struggle to keep “wars not of an international character” out of the Conventions. But they did win a crucial point: only the principles of the Convention would be applied to civil wars. Still, those basic provisions now had to be defined in Common Article 3, and so they were:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
The British delegation felt that this language was as good a result as they could have achieved. Sir Robert Craigie concluded that “there is little in Article 3 which could be of direct encouragement to subversive movements.”18 Yet in truth, Article 3 was a major victory for the countries that wanted to provide protections to resistance groups, civilians, and detained combatants—in short, all those peoples who had suffered so much at the hands of the Nazis. Common Article 3 opens up once darkened areas of state activity—namely, internal repression and violence against citizens—and subjects them to the bright light of international law. To be sure, Article 3 only applied certain “provisions” about humane treatment to those internal conflicts. Yet the article has commutative properties: if humane treatment must be provided to all people at all times in civil wars, then it logically must also be applied to all peoples in international conflicts as well. That is certainly how the ICRC read the meaning of Common Article 3. Jean Pictet described its expansive power succinctly: “Representing as it does the minimum which must be applied in the least determinate of conflicts, its terms must a fortiori be respected in the case of international conflicts proper, when all the provisions of the Convention are applicable.”19 Once again, the ICRC and its allies among the national delegations managed to graft a central principle of human rights—humane treatment for all persons at all times, everywhere—into the preeminent legal charter of the laws of war.
It is clear, then, that there is within the text of the Geneva Conventions much to interest human rights historians. This treaty is no mere guidebook for warring states: it contains assumptions about the inviolable individual rights of the human person—a sharp departure from all previous treaties defining the laws of war. But so what? Why does it matter that the laws of war, which are designed to govern state behavior in times of war, now demand that states respect the right of the individual person to be treated humanely at all times, and if he is to be judged, that he be given a fair trial by a regularly constituted court? Do these guarantees amount to a major advance for the human rights agenda?
Until 2001, human rights historians failed to consider the question at all. But since the United States government began its global war on terror in the wake of the September 11, 2001, terrorist attacks, the real character of the Geneva Conventions as a core text of the human rights revolution has been revealed. Indeed, nothing is so illustrative of the power of the Geneva Conventions than the intensity of the efforts made by the United States after 9/11 to assault this legal citadel.
Following the 9/11 attacks, the United States undertook military operations in Afghanistan (a signatory of the Geneva Conventions) to pursue and destroy both the Al Qaeda terrorists who had planned and launched the attacks, and the Afghan Taliban government that had offered sanctuary to Al Qaeda terrorists. United States forces captured a number of Al Qaeda and Taliban combatants in these operations and kept them detained both inside Afghanistan and later at the U.S. naval facility at Guantánamo Bay, Cuba. Various human rights organizations and foreign governments pressed the United States for reassurances that such detainees would be treated according to the Geneva Conventions.20 Of course, the United States government did not wish to provide such status to the detainees. The Counsel to the President Alberto R. Gonzales advised President George W. Bush that the Geneva Conventions did not apply to the war against Al Qaeda and the Taliban. This decision, Gonzales told the president, would “preserve flexibility” in a “new kind of war” that “renders obsolete Geneva’s strict limitations of questioning of enemy prisoners.” Gonzales wanted the United States military to be able “to quickly obtain information from captured terrorists.” Moreover, Gonzales advised the president that denying Geneva’s applicability would “substantially reduce the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).” The Bush administration’s motive was plain: to free U.S. officials to conduct interrogations of captured terrorists and to protect those same officials from the consequences of breaking the law.21
But the president needed a reasoned argument for why Geneva did not apply to Al Qaeda or the Taliban. A number of crucial memoranda reveal the almost frantic efforts to devise a legal rationale for denying Geneva’s relevance to the war on terror. Deputy Assistant Attorney General John Yoo took the first crack at the job, producing a long memo on January 9, 2002 for the general counsel of the Department of Defense. Working in haste to provide legal cover for the long-term incarceration and probably violent interrogation of Al Qaeda terrorists and Taliban militia members, Yoo developed a multipart attack on the Geneva Conventions. It can be condensed into three lines of argument. First, Yoo posited that Geneva does not protect Al Qaeda terrorists because Al Qaeda is a nonstate actor and could not be a signatory of the treaty. Geneva only protects members of the states that have signed it, whereas Al Qaeda was merely “a violent political movement” and had no rights under Geneva. Yoo later summarized the argument this way: “the conflict with al Qaeda is not governed by the Geneva Conventions, which applies only to international conflicts between states that have signed them.”22 Second, the conflict with Al Qaeda was global, and so the language of Common Article 3–enforcing certain humane principles in “armed conflict not of an international character”–was not applicable. Third, the Taliban militia was also not covered by Geneva because the Taliban was not a recognized government, Afghanistan was a “failed state” that had lost any legitimacy, and the Taliban was closer to being a nonstate terrorist group than a government, and so not able to enjoy Geneva protection. Thus, any Al Qaeda terrorist or Taliban militia fighter in U.S. custody could not appeal to the Geneva Conventions for protection. These arguments formed the legal position promulgated by President Bush on February 7, 2002, which would guide U.S. detainee policy for the next six years.23
But how persuasive are these arguments? Having seen in detail how the text of the Convention was actually developed, the reader will immediately perceive that all these arguments that John Yoo mobilized had been anticipated—and neutered—by the framers of the Conventions. First, Yoo’s claim that Al Qaeda terrorists do not warrant prisoner of war status is a red herring. That issue was not in dispute. Yoo tried to divert attention from the fact that Geneva offers certain protections even to those captured combatants who do not gain the privileged status of prisoner of war. As we have seen, the treaty provides minimal protection to “spies and saboteurs” who, though they might lose their rights of communication, must nevertheless be treated humanely and given a fair trial by a competent tribunal (GC IV, Art 5). Put simply, terrorists do have some Geneva rights.
Second, even if Al Qaeda was acting globally as a terrorist network, Common Article 3 could be read as applying to Al Qaeda precisely because Al Qadea is not a state, and therefore America’s war with it is “not of an international character.” This is what the United States Supreme Court decided in June 2006: Article 3 “bears its literal meaning,” and is used in the Conventions “in contradistinction to a conflict between nations.” To be sure, the framers had in mind civil wars when writing Common Article 3, but the Supreme Court considered that it extended to wars between a state and a nonstate actor. The Court found that “Common Article 3 … affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict ‘in the territory of a signatory.’” And those minimal protections include a ban on torture or degrading treatment.24
Third, Yoo’s effort to deny the Taliban militia any Geneva protection was especially weak. Yoo had claimed that the Taliban was not a recognized government, Afghanistan was a “failed state” without any legitimacy, and the Taliban was closer to being a nonstate terrorist group than a government. To declare Afghanistan a failed state, however, opened up the possibility that any warring nation could declare its enemy a “failed state” simply to avoid applying the Conventions. The Bush administration settled on an alternative strategy: to deny Taliban fighters prisoner of war status because their fighters did not abide by the specific language of GC III Art. 4 (2): “(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.” But this argument too was easily dispensed with because the directly preceding clause indicated that POWs were “Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces” [GC III Art. 4 (1)]. The Taliban were surely a militia and surely were members of Afghanistan’s armed forces, however poorly disciplined and shabby they appeared. The language about uniforms and commanders applied to organized resistance forces and voluntary militias—the French Resistance, for example—and had been designed to regulate underground resistance activities. Any honest reading of the terms of Article 4 would allow POW status to Taliban militia fighters on the grounds that the Taliban were a part of Afghanistan’s armed forces. If there were doubts about their status, Article 5 could be invoked: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal” (GC III Art. 5). And even if POW status was refused to them, then Common Article 3 was always available as a fall-back to insure that they could not be tortured or badly treated.25
There was, in fact, no persuasive legal argument that would allow the United States to wall off Geneva from the war on terror. Instead, Justice Department officials offered a deliberate misreading of the text in order to provide the United States the cover it desired so that members of the U.S. armed forces and intelligence services could capture, indefinitely detain, and torture persons deemed threatening to American interests. And this, we now know, is precisely what happened.26
For historians of human rights, what may be most significant in this tale is the evidence it presents about how the laws of war have advanced the propositions inherent in human rights law. The Geneva Conventions had developed an overlapping, reinforced set of protections for people in wartime based on the principle that individual rights matter more than the sovereignty of the state. In this, the Geneva Conventions—whose origins lay in the laws of war—has become a crucial link in those international human rights laws that defend individuals from the rapacious power of the state.
NOTES
I would like to thank Mark Bradley, Susan Ferber, Petra Goedde, and Sam Moyn for helpful comments on earlier drafts of this essay.
1. Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 2003), barely mentions the Conventions, nor does Burns H. Weston’s excellent survey of human rights refer to them: Encyclopedia Britannica Online, s.v. “Human Rights,” (by Burns H. Weston), http://www.britannica.com
2. Cordula Droege, “Elective Affinities? Human Rights Law and Humanitarian Law,” International Review of the Red Cross 871 (September 2008): 501–48; Robert Kolb, “The Relationship Between International Humanitarian Law and Human Rights Law,” International Review of the Red Cross 324 (September 1998): 409–19; Louise Doswald-Beck and Sylvain Vité, “International Humanitarian Law and Human Rights Law,” International Review of the Red Cross 293 (April 1993): 94–119. The only sustained historical investigation into the origins of the 1949 Geneva Conventions is Geoffrey Best, War and Law since 1945 (Oxford: Clarendon Press, 1994), chapters 3, 4, and 5.
3. For the official text of the Geneva Conventions, see International Committee of the Red Cross website, http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/genevaconventions.
4. Except for the case of the Protocols to the Geneva Conventions, promulgated in 1977, which extended Geneva protections to fighters in national liberation movements and other irregular militant formations. The Reagan administration refused to accept this new protocol and refused to send it to the Senate for ratification. At the time of this writing, the United States still has not ratified Protocol I of the Geneva Convention.
5. On the early history: Angela Bennett, The Geneva Convention: The Hidden Origins of the Red Cross (UK: Sutton Publishing, 2005); Fritz Kalshoven, Constraints on the Waging of War (Geneva: ICRC, 1987), 7–17; Ingrid Detter de Lupis, The Law of War (Cambridge: Cambridge University Press, 1987), 271–93; Hilaire McCoubrey, International Humanitarian Law: The Regulation of Armed Conflicts (Aldershot: Dartmouth Publishing, 1990), 11–15.
6. “Report on the Work of the Preliminary Conference of National Red Cross Societies for the Study of the Conventions,” Geneva July 26–August 3, 1946, Record Group [RG] 59, Entry 5210, Box 6, US State Department Records, Office of the Legal Adviser, Records Relating to the Red Cross and the Geneva Conventions, United States National Archives and Records Administration (hereafter NARA).
7. Jean S. Pictet, Commentary on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: ICRC, 1958), 12–14; “Report of the United States Delegation,” October 3, 1949, RG 389, Entry 437, Box 673, Provost Marshal General, Administrative Division, NARA.
8. Revised draft and comments, February 1949, FO 369/4145, UK National Archives (hereafter UKNA).
9. Final Record of the Diplomatic Conference of Geneva of 1949, vol. IIA (Berne: Federal Political Department, 1949), 240.
10. The UK delegation congratulated itself for this small victory in its final report. Cabinet Memorandum by Secretary of State for Foreign Affairs, “Partisans,” November 25, 1949, Annex I, WO 32/13616, UKNA. In the discussions on this matter, the United States delegation sided with the Soviets and the Western Europeans, leaving the British in “a minority of one,” about which the British delegation felt extreme bitterness. “Report on the Work of the War Office Members of the UK Delegation to the Diplomatic Conference at Geneva,” October 1949, WO 32/13616, UKNA.
11. Final Record, vol. IIA, 621–22. The French and Australian delegates had a frosty exchange in which the Australian stated his view that the rights of states at war needed to be protected, while the French delegate said that “the object of the Convention was to provide for the protection of persons, not to safeguard the rights of states.” Here lies the basic divide at the heart of the Convention.
12. Pictet, Commentary, 58.
13. Ibid., 51.
14. Ibid., 201, 205.
15. Ibid., 26.
16. “Minute for the Secretary of State,” March 10, 1949, attached papers, FO 369/4143, UKNA.
17. Cabinet Meeting of Ministers, “Revision of Geneva Conventions: Application of Geneva Conventions to Civil War,” March 26, 1949, WO 32/14041, UKNA.
18. Memorandum, “Extracts from Sir Robert Craigie’s Report,” November 25, 1949, Annex I, WO 32/13616, UKNA.
19. Pictet, Commentary, 38.
20. T. R. Reid, “U.S. Pressed on Detainees’ Treatment; Concern Grows Abroad About Rights of Al Qaeda, Taliban Fighters Held in Cuba,” Washington Post, January 17, 2002.
21. Alberto R. Gonzales, Counsel to the President, “Memorandum for the President,” January 25, 2002, in The Torture Papers: The Road to Abu Ghraib, ed. Karen J. Greenberg and Joshua L. Dratel (New York: Cambridge University Press, 2005), 118–21.
22. John Yoo, “Terrorists Have No Geneva Rights,” Wall Street Journal, May 26, 2004.
23. John Yoo, “Memorandum for William J. Haynes III, General Counsel, Department of Defense, January 9, 2002,” in Torture Papers, Greenberg and Dratel, 38–79. Yoo’s memo was supplemented by a memo from Jay S. Bybee, an assistant attorney general, dated January 22, 2002, to Alberto Gonzales, in Torture Papers, Greenberg and Dratel, 81–117. Yoo’s arguments were adopted in President Bush’s memorandum to his top national security officials, dated February 7, 2002, in Torture Papers, Greenberg and Dratel, 134–35.
24. Hamdan v. Rumsfeld, 548 U.S. 557 (2006), June 29, 2006. For analysis of the decision, see Peter J. Spiro, “Hamdan v. Rumsfeld 126 S.Ct. 2749,” American Journal of International Law 100, no. 4 (October 2006): 888–95.
25. George H. Aldrich, “The Taliban, al Qaeda, and the Determination of Illegal Combatants,” American Journal of International Law 96, no. 4 (October 2002): 891–98. See also “Decision Not to Regard Persons Detained in Afghanistan as POWs,” American Journal of International Law 96, no. 2 (April 2002): 475–80; and Johannes van Aggelen, “A Response to John C. Yoo, ‘The Status of Soldiers and Terrorists under the Geneva Conventions,’” Chinese Journal of International Law 4, no. 1 (2005): 167–81.
26. Thanks to the work of the National Security Archive, we now have extensive documentation about the torture of detainees in American hands during the war on terror. For thousands of pages of documents, see http://www.gwu.edu/~nsarchiv/torture_archive/index.htm. The ICRC report, titled “ICRC Report on the Treatment of Fourteen ‘High Value Detainees’ in CIA Custody,” dated February 14, 2007, was published by the New York Review of Books. It leaves no doubt about the systematic torture that was applied to select “high-value detainees” by U.S. personnel. See http://www.nybooks.com/icrc-report.pdf.