A layman’s look at the Geneva Conventions and the issue of prisoner rights


Those who claim that the Geneva Conventions only confer protections on people who are citizens of countries at war, are perhaps attempting to convince us that our rights, “our” meaning every human being on earth, and our legal protections are not inalienable. Perhaps they want us to believe that our rights are bestowed upon us by the people in Washington D.C. If we are ever imprisoned some one is to make a call…”tell us oh great legal advisor, is this man human or not human?” “Not human…get the hose”…and so it goes. Who are among the lucky and considered human? Only those who have a US authority over them, and also a little oil. Minus these things, they are supposedly in-human, since they are terrorists and they have no rights, or so we are told. The truth is that, more than likely the Geneva Conventions do not anywhere imply, or state that there are people who have no citizenship or representative authority over them that is supposed to serve as a pro! tectorate of their rights. Even belligerent occupiers are expected under the Geneva Conventions to protect the rights of civilians, and also prisoners of war. When there is no Party that is able or willing to provide humanitarian services and protect rights, third parties like the International Red Cross, or other such organizations are in line to do the job, the bottom line being that by law, every human being has inalienable human rights that should be protected, and human needs that should be provided.

There are those who perhaps think they have successfully created a sub-human category called a terrorist, outsmarting the Conventions, but they are wrong, and their desire to set this controversial legal precedent is also wrong.. The article of the Geneva Conventions being misinterpreted to imply that certain prisoners do not have Geneva Convention protections is perhaps article 5 which says:

” Where, in the territory of a Party to the conflict, the latter is satisfied that 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 favor of such individual person, be prejudicial to the security of such State.

Where in an 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.

In each case, such persons shall never the less 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 protected persons under the present Convention at the earliest date consistent with the security of the State, or the occupying power, as the case may be.”

We have two categories of prisoners addressed here. “When in the territory of a Party to the conflict,” seems to pretty much describe the situation in Afghanistan. Afghanistan is Party to the conflict there, and the conflict is taking place in its territory. The article says that “anyone who is suspected of, or engaged in activities hostile to the “State.” Who is the state in question here? It is obviously the nation/”State” of Afghanistan where the conflict is being staged, it certainly would not pertain to the invading state, or country, since such State cannot exist within the state that it is invading. The Article says that in this instance, when a prisoner is suspected of carrying out activities that are hostile to the state where he or she is, then certain rights can be suspended. Still, this is conditioned. It says that they are not protected ” if (rights ) exercised in favor of an individual would prejudice the security of the State.” This suggests t! hat the only way the United States could legally suspend Geneva Convention rights is that the Taliban and Al-Qadea are captured here in the US, or held here in the US, since we are also a Party to the conflict. In that instance if we are convinced that they, while prisoners, are involved in conduct hostile to the security of the United States, their rights can be suspended. It also suggests that this article refers to rights that would compromise the security of the State, and we can reasonably assume that such rights might include things such as association, or recreation with other prisoners, free time outside a cell, or other privileges that might provide opportunities for a prisoner to prejudice the security of the “State.” The activities in question would not likely be the acts for which they were detained, carrying out war, or there would not be a need for the Conventions since they pertain to war, and its doubtful that the intent of its creator’s was to render the Conventions irrelevant in reference to any case, or situation related to rights. These activities must be activities that prisoners are involved in after being detained that threaten the security of the State where they are detained. It is not their mere existence as criminals or enemies that causes them to be temporarily denied specific rights. And even when certain and specific rights are suspended, this is not to be a permanent situation. The Conventions say further in article 5, ” In each case, 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 “full rights” and privileges of protected persons under the present Convention at the “earliest date” consistent with security of the State or the occupying power, as the case may be” (Emphasis mine). The other part of article 5, pertains to Iraq, and occupying powers! , and it begins, “Where in occupied territory a person is detained as a spy or saboteur,” and goes on to say that they lose the right to “communicate” guaranteed under the Convention.

If there is any reasonable ambiguity in respect to granting Geneva Convention rights upon detainees, it might result from the characterization of the war as “international” war, making identification of the “Parties” in conflict somewhat difficult o understand, especially when prisoners of war are being detained outside of the State where actual military conflict is taking place. Another way to perhaps look at it might actually support, to an even greater extent, the idea that anyone detained anywhere in the world in the war on terrorism, is in fact in the territory of a Party to the conflict, and who ever the government of that place is has the duty to protect rights, and if an occupying power, the same rule applies. If we look at it that way, in respect to Guantanamo Bay, the United States would perhaps be the “State” and would still have to strongly suspect or believe that some activity of the prisoner or detainee actually threatens the US, which might be! a difficult case. Even if the case is made for suspension of rights, the suspension of rights would only be temporary. There is nothing obvious in the Conventions that implies or states that the mere fact that a detainee exists and is an enemy is a cause for suspension, or denial of rights.

There does not appear to be any instance where the Geneva Conventions suggests that there are people without rights. This idea defies the very premise of the idea of human and universal rights, and God as the giver of such rights. No human being can arbitrarily grant or deny rights to people based upon any criterion that they desire. The very objective of the American revolution was to abolish arbitrary government rule, and to establish an equal law, promulgated by virtuous and moral men and women who would lead this country as servants of this founding idea. The Conventions expressly prohibit agreements between Parties to the conflict that seek to compromise or remove such rights saying: ” No derogation from the preceding provisions shall be made by special agreements between Powers, one of which is restricted, even temporarily, in its freedom to negotiate with the other Power, or its allies by reason of military events, more particularly where the wh! ole, or substantial part of the territory of the said Power is occupied.”

When we read the Geneva Conventions we are forced to ask ourselves why we have intractable situations and ongoing cycles of violence that are draining the world of human life, resources, and hope, when these rules exist for the sole purpose of avoiding perpetual and devastating wars that have the capacity to ruin the world. The answer must be that dominating and arrogant powers hate rules, and feel that the mere power to dominate confers upon them a right to act subjectively. In such cases laws are broken, purposefully misinterpreted or simply ignored. We now have three major conflicts taking place in the Middle East that must be resolved. The Conventions light the path in that direction, and they should be adhered to for that reason and also because we are a signatory. One of the lessons of the al-Gharib situation, in my opinion, is that we must have an international law that is enforceable, and also equitable if we are to have a basis for negotiations and ! conflict resolution, and any hope of ever achieving peace, and we must have people, and nations who respect and adhere to the law , even when it is inconvenient if we are to have confidence and trust in one another, two important essentials for peaceful co-existence and cooperation.


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