Obama, Bush, and the Geneva Conventions

Today, 12 August, is the 61st anniversary of the signing of the Geneva Conventions of 1949, the international treaties designed to protect soldiers and civilians during armed conflicts.  The treaties became the focus of international attention in 2002 when the Bush administration controversially concluded that al Qaeda and the Taliban were not entitled to their protections. President Obama has reaffirmed America’s "commitment" to the Geneva Conventions but has not been specific about how the Conventions apply to al Qaeda and Taliban detainees. To re-assert U.S. leadership with respect to the laws of war, the Obama administration should announce that the United States accepts specific provisions of the Conventions and engage other countries to develop new rules where the Geneva Conventions do not apply.

The 1949 Geneva Conventions consist of four separate treaties originally signed by 59 countries in Geneva, Switzerland. In light of the horrific experiences of World War II, the first three agreements revised previous treaties dating from 1864, 1906, and 1929 that provided humanitarian protections for sick or wounded soldiers on land, sailors at sea, and prisoners of war. The fourth agreement, added in 1949, establishes protections for civilians in conflict zones. The best known of the agreements is the Third Geneva Convention, which provides detailed articles of protection for those who qualify as Prisoners of War (POWs).

The Geneva Conventions apply to conflicts between the 194 countries that are now party to them. Since 1949, three Additional Protocols have been added to the Conventions to provide further protections in light of changes in modern warfare. The United States has long objected to certain provisions in the First Protocol, although it has stated its support for others. President Reagan submitted the Second Protocol to the Senate in 1987, but the Senate has not acted on it. The Bush administration was a driving force behind (and signed and ratified) the Third Protocol, which created an alternative protective symbol (a Red Diamond) for countries (primarily Israel) that do not use the Red Cross or Red Crescent.

Together, the four 1949 Conventions and the three protocols form the bedrock of the international laws of war.

The United States applied the Geneva Conventions in the Korean, Vietnam, and first Gulf Wars. After the September 11 attacks, however, President Bush concluded that the Conventions did not apply to the United States conflict with al Qaeda because al Qaeda was not a party to the Conventions. He also determined that while Afghanistan was a party to the Conventions, the Taliban were not entitled to POW protections. The Bush administration’s refusal to apply the Geneva Conventions (and certain provisions in human rights treaties) was condemned by U.S. allies and human rights groups as an effort to place al Qaeda and Taliban detainees into a "legal black hole." In its second term, the Bush administration made significant efforts to clarify the legal rules applicable to detention and engage U.S. allies in discussions on international legal issues. But the administration still resisted application of the Geneva Conventions.   

In 2006, the Supreme Court rejected the Bush administration’s arguments and held that even if the Geneva Conventions did not apply in their entirety, at least one provision — Common Article 3, which prohibits torture and inhuman or degrading treatment of detainees — applies to the conflict between the United States and al Qaeda.

President Obama entered office pledging to "restore" U.S. respect for international law.  He immediately banned coercive interrogation methods and rescinded the Bush administration’s strained interpretations of Common Article 3. Last December, Obama reaffirmed the U.S. "commitment to abide by the Geneva Conventions" in his Nobel Prize remarks. These statements have helped improve America’s image internationally. But the Obama administration has yet to apply the Geneva Conventions as a legal framework differently than the Bush administration. The administration continues to hold hundreds of al Qaeda and Taliban detainees as enemy combatants in Guantanamo and Afghanistan but has not determined that they are POWs under the Third Convention or civilian "protected persons" under the Fourth Convention.

The Obama administration has been studying for nearly twenty months whether to give additional Geneva protections to these detainees. Although al Qaeda detainees clearly are not entitled to POW status, the administration should agree to be bound by Article 75 of the First Protocol to the Conventions, which specifies minimum protections for detained persons, such as the right to be told the reasons for one’s detention. The administration should also urge the Senate to approve the Second Protocol to the Conventions, which spells out rules for internal wars such as in Afghanistan today. Applying these provisions from the First and Second Protocols would demonstrate the U.S. commitment to holding detainees under an internationally recognized set of rules.

For more than a hundred years, the United States has been a respected leader in developing the international laws of war. The Bush administration stumbled by straining to avoid application of the Geneva Conventions as a whole and refusing to adopt even the minimum international standards set forth in Common Article 3 and Article 75. But it is true that the Conventions, and even the Additional Protocols, do not provide clear guidance for countries engaged in conflicts with terrorist groups like al Qaeda, such as who qualifies as a combatant and what legal process should be given. The Obama administration should continue to engage our allies in dialogue about which existing rules of international humanitarian and human rights law apply and where additional rules should be developed. The administration should use its considerable political capital in the international community to clarify and expand the international law applicable to modern warfare.

John B. Bellinger III is a partner with the Washington law firm of Arnold & Porter and an adjunct senior fellow in International and National Security Law at the Council on Foreign Relations. As the legal adviser for Department of State from 2005 to 2009, he headed the U.S. delegation for the negotiation of the Third Additional Protocol to the Geneva Conventions.