The Geneva Conventions
Since 1864 there have existed clear laws of war. Called the Geneva Conventions, part of the Hague Conventions derived from customary laws of war and international treaties and ratified by various all countries as binding laws. The Geneva Conventions, first drafted in Geneva, Switzerland in 1864, are a part of the Hague Conventions, and are accepted by every country in the world and enjoy universal acceptance.
The two conventions most relevant to our concerns are the Third Geneva Convention which sets our the rule of conduct towards enemy prisoners of war, and the Forth Geneva Convention that applies to civilians. The First and Second Conventions apply to wounded and sick on land, and the wounded, sick and ship-wrecked at sea respectively.
The Conventions allow a nation to hold enemy soldiers as prisoners of war for the duration of the conflict, but cannot under any circumstances mistreat the prisoners. In fact, the Conventions define clearly that prisoners ‘must at all times be treated humanely,,,and,,,protected against acts of violence and intimidation’. Civilians imprisoned also enjoy similar protections against any abuse or mistreatment, and must guarantee of a fair trial in the event that they are charged with crimes during the armed conflict.
The Geneva Conventions explicitly recognize that there may be people who do not fall into the above two categories – soldier or civilian. That there may be irregular forces, or armed groups or militia that are not part of a national army, do not wear any uniforms / insignia, do not have a defined organization structure, do not openly carry arms or even act in a way to adhere to the laws of war. Regardless of this, Article 5 of the Geneva Conventions requires that such individuals be treated as prisoners of war until a further determination of their status. Common Article 3 – called Common Article because it is common to all Four Geneva Conventions – supplemented by Protocol II (1977) provides the basic rules for treatment of all individuals denied prisoner-of-war status. It prohibits trials that do not meet internationally recognized standards, and bans the use of torture, cruel and humiliating treatment and other abuses. Common Article 3 is today understood as a customary law of war i.e it applies to even those individuals who may belong to a nation that is not a signatory of the Geneva Conventions.
The US is a signatory to the Geneva Conventions, and most nations around are because the laws of war also protect their own soldiers from mis-treatment and abuse. In the wak of the 9/11 attacks, and with the American invasion of Afghanistan and later Iraq, the Bush administration worked hard to define a new set of rules for its military conduct, These rules, or ‘new paradigms’ as members of the administration called them, were created to explicitly discard the rules defined in the Geneva Conventions. The creation of military commission, the description of prisoners as ‘enemy combatants’, and the legalistic gymnastics used to narrow the definition of torture, the administration was able to lay the foundations of its policies of indefinite detention, extraordinary renditions (international kidnappings), pre-emptive assassinations, the use of torture and inhumane treatment, use of hearsay or confessions extracted under torture as evidence and a denial of access to courts for accused prisoners among other practices.