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Why the US in Guantanamo is subject to the Geneva Conventions

By Jean-Jacques Bovay - posted Wednesday, 29 December 2004

Mr Lapkin's article, "Why should Guantanamo Bay inmates be protected by the Geneva Convention?", published in On Line Opinion recently, perpetuates several misconceptions about International Humanitarian Law (IHL) - also called the law of armed conflict - and the specific role and mandate of the International Committee of the Red Cross (ICRC).

Regarding the role and working methods of the ICRC, Mr Lapkin cites a recent article published in the New York Times as evidence of the organisation's ability to "play hardball politics with the best of them when it sees fit". Firstly, in line with its fundamental principles of humanity, impartiality, neutrality and independence, the ICRC never "sees fit" to enter the political playing field.

Secondly, the ICRC did not leak any information to the New York Times about its visits to detainees held at Guantanamo Bay. The ICRC, in accordance with its strict policy of confidentiality, only makes representations and provides details of its findings on the treatment and condition of detainees to the authorities directly concerned. It is this approach that enables the ICRC to have regular and repeated access to detainees in over 2,000 places of detention in some 80 countries.


Individuals suspected of violations of IHL are not placed "beyond the pale of international law", as Mr Lapkin stated. While phrases such as "captured on the battlefield", "serial transgressors" and "illegal combatants" presuppose guilt, in reality the Geneva Conventions enable those suspected of violations to present their claims of innocence and entitlement to protection. Indeed, the protection of persons not, or no longer, taking direct part in hostilities is the fundamental principle of International Humanitarian Law. Although it is true that parties to the Geneva Conventions are under no obligation to apply their terms to non-parties who do not abide by the law, the "parties" referred to in the Conventions are States. The United States of America and Afghanistan are both States parties to the Geneva Conventions, and therefore the Conventions apply to persons detained in the armed conflict between the two.

Contrary to the assertion, "Al-Qaeda fights outside the Geneva Conventions and so is not protected by them", a violation by one party to a conflict is not sufficient to relieve the other side of its obligations. If the existence of violations provided a permissible basis for throwing out the rule book, there would be no use for rules that, while often honoured in the breach, have also served humanity well in preventing excesses. Reciprocal respect for the rules is an ideal, but violations by one side do not excuse violations by the other side.

Responding to violations with violations simply contributes to a downward spiral into mayhem for combatants and civilians alike. Therefore, while those who violate the law remain entitled to its protection, they are also subject to its sanction.

A detainee who fails to meet the criteria for POW status does not thereby forfeit all rights under the III Geneva Convention. In fact, such persons may still be covered by the rules applicable to civilians under the IV Convention. And, despite being covered by the Conventions, these individuals can still be interrogated, detained without charge for the duration of the conflict or (in the case of civilians, for as long as they pose a security risk), prosecuted for unlawful participation in hostilities as well as for war crimes, and, if convicted, sentenced to terms provided by law. The existing legal framework obviates any need to toy irresponsibly with the notion that the end, for example intelligence gathering, justifies any means. The prohibition on torture permits no derogation.

The ICRC regrets misinformation regarding its specific role and the body of law governing situations of armed conflict for one simple reason: it could impact adversely on the victims of armed conflict and our ability to alleviate their plight.

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About the Author

Jean-Jacques Bovay is Head of the International Committee of the Red Cross (ICRC) Regional Delegation for the Pacific, based in Suva, Fiji.

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