Jonathan Crowe
This week saw the 65th anniversary of the ratification of the Geneva Conventions on 12 August 1949. The following day was the 100th birthday of the Australian Red Cross, founded on 13 August 1914. The Geneva Conventions and the Red Cross movement both stand as important reminders of the doctrine of humanitarianism, according to which all humans deserve to be treated with dignity, even in wartime.
University of Queensland law professor Jonathan Crowe
The International Committee of the Red Cross is given a broad mandate under the Geneva Conventions to promote humanitarianism in armed conflict. International humanitarian law protects everyone affected by war, regardless of their status. This body of law centres on the four Geneva Conventions, which have been ratified by all recognised states, and their two Additional Protocols of 1977.
Prisoner of war status
One of the central principles of the Geneva Conventions is that nobody involved in an armed conflict goes unprotected. There are multiple tiers of protection, designed to ensure that nobody falls outside the reach of the law.
Article 4 of Geneva Convention III sets out the classes of people who are entitled to prisoner of war status. The main category is members of the regular armed forces of a party to the conflict. Members of organised militias are also entitled to prisoner of war status, provided that they bear arms openly and wear a uniform or other distinctive sign. A similar (although slightly wider) definition appears in Additional Protocol I.
The benefits of prisoner of war status under Geneva Convention III are extensive and detailed. However, prisoner of war status is far from the only form of protection afforded to participants in armed conflict.
Protected persons
Some fighters might not qualify as combatants under Geneva Convention III, if the armed group to which they belong is not organised enough or they do not carry arms openly and distinguish themselves from civilians. These fighters are sometimes called ‘unprivileged belligerents’ due to their lack of prisoner of war status.
However, it would be wrong to think that unprivileged belligerents are unprotected by international humanitarian law. Protection under the law of armed conflict is not an all or nothing proposition. There are at least two additional layers of protection available to captured fighters who do not benefit from Geneva Convention III.
The first is Geneva Convention IV, which protects civilians or other persons who fall into the hands of a party to a conflict of which they are not nationals. Detainees who are ‘protected persons’ under Geneva Convention IV enjoy guarantees equivalent in many respects to those afforded to prisoners of war.
Fundamental guarantees
What about fighters or other detainees who find themselves in the hands of their own nation or an allied power? These people are not covered by the protected persons regime of Geneva Convention IV, but they are still able to rely on the fundamental guarantees found in Common Article 3 of the Geneva Conventions.
Common Article 3 appears identically in each of the four conventions. It sets out the basic rights guaranteed to all persons not actively engaged in combat, including captured and wounded fighters. These rights include protections against torture and ill treatment, as well as procedural guarantees.
A more extensive list of fundamental rights is contained in Article 75 of Additional Protocol I. Not all nations are parties to this treaty, but it is likely that many of its protections are enshrined in customary international law. Together, these provisions represent the minimum level of protection to which everyone is entitled in times of war.
Nobody is unprotected
It is occasionally suggested that these basic tenets of international humanitarian law do not apply to people who provide support for terrorism. However, there is no basis for this in the treaties. The closest we get is the security based exceptions contained in Geneva Convention IV, but even those provisions are subject to express guarantees of humane treatment and procedural justice.
A strong case can be made that terrorists, like other people caught up in warfare, should be afforded at least a basic level of protection. This is as it should be. The whole point of international humanitarian law is to serve as the last ditch hold out position of humanity against arbitrary violence. It holds open the prospect of a lasting peace based on mutual respect for human values.
International humanitarian law exists to emphasise that, even in wartime, all people have rights by virtue of their human dignity. The longevity of the Geneva Conventions and the Australian Red Cross shows the continuing relevance of humanitarianism in wartime and peacetime. Both institutions deserve our support in pursuing this important principle.
Jonathan Crowe is an Associate Professor in the T C Beirne School of Law at the University of Queensland. He is co-author (with Kylie Weston-Scheuber) of Principles of International Humanitarian Law (Edward Elgar, 2013). A version of this article appeared previously at Elgarblog.