Do the Geneva Conventions Need an Adjudicative Body?

William Quinn, Vol. 37 Associate Editor

The Geneva Conventions of 1949 are universally recognized as the core body of international law regulating the conduct of armed conflict.[1] Nevertheless, it seems trite to remark that they have not been universally obeyed.[2] That lack of obedience has not gone unnoticed, as political leaders, lawyers, activists, and journalists throughout the world have worked tirelessly to expose war criminals and bring them to justice.[3] Though the Geneva Conventions failed to usher in an era of peace – or even an era of conflict lacking in wanton barbarity – they have provided an effective standard by which to judge the actions of combatants. Commitment to the use of that standard is now eroding. Since September 11, 2001, some provisions of the Geneva Conventions have been viewed as outdated and inapplicable to the modern national security environment.[4] Common Article 3 of the Geneva Conventions provides assurances for the humane treatment of captured prisoners of war.[5] Because members of terrorist and insurgent organizations ignore the Geneva Conventions, and because they do not fit clearly into any of the categories afforded protection by the Geneva Conventions, countries such as the United States, the United Kingdom, and Israel have balked at providing captured terrorists the full protections and privileges of Common Article 3.[6] The controversy and questions surrounding the proper legal status of captured terrorists is so great, some journalists speculate that the Obama administration prefers targeted killing to capture, even when capture is possible.[7] These controversies are not limited to the War on Terror. Similar questions have arisen when captured enemy fighters bearing no national insignia are captured on the battlefield in the ongoing Ukrainian conflict.[8] The situation in Ukraine raises especially challenging questions about the Geneva Conventions. Some detainees are Russian nationals who served in the Russian military. Many observers are convinced they are fighting on orders from Moscow and must be viewed as Russian soldiers, but the Russian government denies any involvement, claiming the war in Ukraine is a civil war, not a war between states.[9] Accepting Russia’s denial, the Ukrainian government has refused to extend Common Article 3 protections to the Russian detainees because they are “illegal trespassers” in a “non-international armed conflict.”[10] The Geneva Conventions did not create an adjudicative body to answer such questions as the nature of war evolved. The only discussion in the Conventions having to do with adjudicative action of any kind is contained in Article 49 of the First Geneva Convention, and its purpose is to set basic guidelines for the criminal trials of those who commit grave breaches of the Convention.[11] Consequently, determining the meaning of the text of the Conventions when applied to modern warfare has been left to each party’s judicial branch.[12] This method of applying the Geneva Conventions’ text to modern war is inadequate. Nations whose citizens are affected by the adjudication of a detaining nation’s courts will have good reason to be frustrated: it is difficult to trust the impartiality of a court’s interpretation of the laws of war when that court’s own military is at war. An international adjudicative body, with independent justices appointed by various countries and approved by the parties to the Geneva Conventions, would provide a forum that member states could petition for an interpretation of the text of the Conventions. It is unlikely that many states would be willing to allow such a body to strike down their own courts’ rulings, but an internationally sanctioned panel of justices could provide a more consistent – and more widely accepted – set of guidelines for applying the Conventions to modern conflict than most (if not all) national courts can manage.

[1] See The Geneva Conventions of 1949 and their Additional Protocols, https://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm (last visited Sep. 22, 2015). [2] See David M. Crane, “Boxed in” Semantic Indifference to Atrocity, 40 Case W. Res. J. Int’l L. 137, 141-42 (2008) [3] See generally Helsinki Watch, War Crimes in Bosnia-Hercegovina: Volume II (1993) (discussing the lobbying effort to develop a war tribunal to respond to war crimes in Yugoslavia); Human Rights Watch, Leave None to Tell the Story: Genocide in Rwanda (1999) (detailing the genocide in Rwanda); Samantha Power, A Problem from Hell: America and the Age of Genocide (2002) (reviewing the international community’s responses to mass killings and genocides in Cambodia, Iraq, Bosnia, Rwanda, and Kosovo). [4] See Draft Memorandum from White House Counsel Alberto R. Gonzalez to the President of the United States, Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban (Jan. 25, 2002), http://nsarchive.gwu.edu/NSAEBB/NSAEBB127/02.01.25.pdf (arguing that the War on Terror “renders obsolete” strict limitations governing the questioning of captured enemy combatants and “renders quaint” provisions requiring the provision of commissary privileges, stipends, and scientific instruments for enemy detainees); see also Nitsana Darshan-Leitner’s Welcome Address to Shurat HaDin’s “Towards a New Law of War” Conference, Israel L. Center Blog, (May 4, 2015), http://ilcblog.org/2015/05/04/nitsana-darshan-leitners-welcome-address-to-shurat-hadins-towards-a-new-law-of-war-conference/ (arguing that terrorist organizations employ propaganda tactics that portray political and military leaders of democratic nations as war criminals, while violating the law of war themselves, thus manipulating democratic nations’ commitment to the rule of law in an effort to destroy public trust in national leadership). [5] Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. [6] See Sibylle Scheipers, Is the Law of Armed Conflict Outdated?, 43 Parameters, Winter 2013, at 53-55. [7] See, e.g., Geoffrey Robertson, Bin Laden Should Have Been Captured, Not Killed, The Daily Beast (Mar. 03, 2011, 10:48 AM), http://www.thedailybeast.com/articles/2011/05/03/osama-bin-laden-death-why-he-should-have-been-captured-not-killed.html. [8] See Ryan Faith, The Russian Soldier Captured in Crimea May Not Be Russian, a Soldier, or Captured, Vice News (Mar. 10, 2014, 2:20 PM) https://news.vice.com/article/the-russian-soldier-captured-in-crimea-may-not-be-russian-a-soldier-or-captured. [9] See Carl Schreck, Video Raises Concerns over Ukraine’s Treatment of Russian Prisoners, The Guardian (May 20, 2015, 9:32 AM), http://www.theguardian.com/world/2015/may/20/ukraine-russia-pow-video-war-crimes. [10] Id. [11] Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 49, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31. [12] See Hamdan v. Rumsfeld, 548 U.S. 557, 643 (2006) (determining whether United States military commissions are “regularly constituted court[s] affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” in accordance with Common Article 3).