Should the Geneva Conventions Apply to the “War on Terror”

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Last week I took part in a BBC radio programme (“Iconoclasts”) debating whether the Geneva Conventions should apply to the war against terrorism. The programme (which can be heard by clicking here) addressed three issues:

– Do the Geneva Conventions apply to ‘the war on terror’?
– What is the difference between ‘tough interrogation’ and torture?
– If the Geneva Conventions needs updating or replacing, what should the new rules be?

The Iconoclast in the programme was Charlie Wolf, an American radio presenter and commentator based in the UK. He was formerly communications director of Republicans Abroad UK. In the programme, he took a similar position to that  first taken by the Bush Administration after September 11, i.e. that the”war on terror” was not within the contemplation of the drafters of the Geneva Convention and that the terrorists did not deserve the protections of the Geneva Convention as they did not respect them. These issues were addressed by the US Supreme Court in 2006, in Hamdan v. Rumsfeld when it ruled that at least one provision of the Geneva Conventions, namely Common Article 3, applies to the US conflict with Al Qaeda. After that case, the Bush Administration changed its position and argued that it was engaged in a non-international armed conflict with Al Qaeda to which the rules of international humanitarian law applicable in non-international conflicts applied.  Of course, there is a broader question as to whether it can be properly argued that there is a global war on terror or even a global war with Al Qaeda which qualifies as an armed conflict under international law.

My co-panelists in the programme, in addition to Charlie Wolf, were Richard Norton-Taylor, the Guardian Newspaper’s Security Editor and Robert Barnidge Jr who teaches international law at the University of Reading in the UK.

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jpaust says

September 5, 2011

Thanks for this. Hopefully you noted that the word "terrorism" is expressly mentioned in the 1949 Geneva Civilian Convention in a section addressing norms applicable during an international armed conflict.

Thomaz Santos says

September 6, 2011

Actually, article 33 of the Fourth Geneva Convention, which mentions that "[c]ollective penalties and likewise all measures of intimidation or of terrorism are prohibited", would, in my view, better apply to that classic form of "terror" carried by official State authorities in order to create fear among the population, such as those in the radical period of the French Revolution. Nevertheless, it's an interesting reply to anyone who claims that the Geneva Conventions do not mention or refer to "terrorism" in any part of their texts.
That being said, and having just heard the "Iconoclasts" debate, I'm anxious to hear or read more on what Dapo thinks should be the new rules to treat "the enemy of the future", in terms of imprisonment and duration of sentences, for instance. Should we adopt a radically different policy for prisoners accused of or convicted of terrorist acitivities than the one regularly applied to the more "conventional" prisoners of war? And, if this is the case, couldn't Common Article 3(1)(d) serve as basis for the future development of these new rules? Finally, congratulations on your participation of the debate, Dapo.

jpaust says

September 6, 2011

Re: GC 3(1)(d), I prefer the read by the U.S. S.Ct. in Hamdan re: "regularly constituted" (vs. special ad hoc, etc.) and basic human rights to due process reflected, for exapmple, in ICCPR art. 14 and Geneva Protocol I, art. 75(4) if you add in the human right of appeal before a court of law.
Should or how would we change ICCPR art. 9(1) and (4)? I would not change these human rights requirements, but what is "arbitrary" detention? Are not GC arts. 5 and 42-43 or 78 more restrictive in the context of war?

Roger Phillips says

September 28, 2011

As an extension of the debate, it is worth considering whether the war on terror extends to the treatment of maritime pirates, and if so whether the protections afforded by the Geneva Conventions should also govern the "war on piracy."