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In this part we discuss the history and justification of the Geneva Conventions, the detailed and comprehensive positive obligations they contain, and their scope, with particular attention to their application to detainees captured during the conflict in Afghanistan and the wider campaign against al-Qaeda.

A. History and Justification

The centerpiece of IHL's regime for the treatment of prisoners of war is the Third Geneva Convention of 1949, one of four conventions referred to collectively as the Geneva Conventions. The first two Conventions protect members of armed forces who fall sick or are wounded during active hostilities, while the fourth protects civilians. Two Additional Protocols were adopted in 1977 that extended the applicability of the provisions in the Geneva Conventions. The first, in part, establishes that struggles "against colonial domination and alien occupation and against racist regimes” will count as international conflicts such that the main body of Articles of the Geneva Conventions will apply to them.[1] The second Protocol develops Common Article 3 of the Geneva Conventions (an Article common to all four Conventions), which had been the only provision applicable to non-international armed conflicts such as civil wars.

The Geneva Conventions trace their origins to the Lieber Code, which arose in response to the savagery of the U.S. Civil War in 1863,[2] and to the Resolutions of the Geneva International Conference of the same year.[3] Like the Lieber Code, the 1863 Geneva Resolutions were inspired by collective moral condemnation of the needless death and suffering wrought by modern warfare, in this case the Battle of Solferino of 1859 that took place during the Second Italian War of Independence. Henry Dunant memorialized the battle and its aftermath, writing of "a hand-to- hand struggle in all its horror and frightfulness; Austrians and Allies trampling each other under foot, killing one another on piles of bleeding corpses, felling their enemies with rifle butts, crushing skulls, ripping bellies open with sabre and bayonet ... sheer butchery.”[4]

The Geneva Conventions also responded to contemporary atrocity, and in particular to the horrors of war visited on civilians during the Second World War.[5] Since their adoption, 196 states have ratified the Geneva Conventions, such that they now enjoy near-universal international assent.[6] Theodor Meron, former president of the International Criminal Tribunal for the former Yugoslavia, aptly describes the Conventions as "the flagship of the post-World War II legal changes that shifted the paradigm of many aspects of IHL from an inter-State archetype to a homocentric system.”[7] He rightly notes "the widespread recognition of the Geneva Conventions as customary law—and in some cases, as peremptory law.”[8] Common Article 2 in effect commits the parties to acknowledge the customary status of the Conventions, as it affirms that the parties will remain bound by them "in their mutual relations” to one another even if an adversary in a conflict is not a party, and that parties become bound to nonparties if the latter simply "accepts and applies” the Convention's provisions.

In part, the Conventions codify the international community's attempt to eliminate cruelty and gratuitous suffering from the conduct of war, all the while assuming that armed conflict will occur from time to time. But they also go further, proscribing a wide range of limits on the means states may use to prosecute war. For example, under Article 17 of the Third Convention, prisoners of war, when questioned, are bound to give only their name, rank, date of birth, and military serial number. The same Article affirms that "[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.”[9] Prisoners who refuse to answer "may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”[10] The Commentary on Article 17 of the ICRC explains that the raison d'etre of these provisions is to give prisoners "protection against any inquisitorial practices,” as the detaining state "may very naturally be tempted to obtain additional information from the prisoner ... for this is obviously of interest from the military point of view.”[11] The Commentary indicates that the drafters were particularly concerned with secret "interrogation camps” used during the Second World War.[10] Certain prisoners were sent to these camps before being sent to regular prisoner-of- war camps, and subjected to "great hardship” in order to obtain information from them.[10] Article 17 thus uses explicit language to ensure that the detaining state may not in any way mistreat prisoners, or threaten them with mistreatment, for the sake of acquiring information, including (but not limited to) actionable intelligence of military significance. This does not mean that detaining states cannot interrogate prisoners of war. The expectation is that they will, and as Stephen Ratner points out, the Conventions allow such tactics as "good cop-bad cop scenarios, repetitive or rapid questioning, silent periods, and playing to the detainee's ego.”[14] But they do not allow threats, insults, punishments, cruel and degrading treatment, or torture.

In Chapter 4 we argued that the fiduciary theory offers an attractive alternative to the interest-balancing model that dominates the national security literature. The same argument applies here, and explains the absolute prohibition on coercive interrogation found in Article 17. Fiduciary states cannot coercively interrogate prisoners because to do so would treat them as mere means of the detaining state rather than as ends in themselves. Such action would run afoul of the principle of non- instrumentalization, and would exceed the scope of the state's right at international law to engage in armed conflict without incurring liability under jus in hello}[15] The interest-balancing model, on the other hand, is incapable of explaining the absolute bar against coercive interrogation, as that model prescribes a balancing of interests that the absolute bar prohibits.

An advocate of interest-balancing might try to defend the absolute bar indirectly, arguing that to permit torture at all would carry political and reputational costs in addition to immediate harm to its victims, and that in the long run these costs are likely to outweigh any gains. As mentioned in Chapter 4, however, this reply fails to explain the actual legal justification for the absolute prohibition, which throughout international conventions and judgments is consistently formulated as a rights- based justification grounded on the dignity of the victim. The fiduciary model, by contrast, explains this justification transparently as an instance of its principle of non-instrumentalization.

A similar worry afflicts the conventional humanitarian justification of the Geneva Conventions. According to this view, the Conventions are based on "respect for human personality.”[16] This humanitarian basis explains the various substantive provisions within the Conventions that aim to mitigate the cruelty and gratuitous suffering historically associated with armed conflict. As noted above, the Conventions arose within a tradition of humanitarian treaty-making that was driven by the international community's moral outrage over wartime atrocities. The tradition's impulse is to protect individuals from violence that serves no military purpose, but of course the difficult cases are the purported ticking time-bomb type scenarios. Here the prisoner poses no military threat, but she may have valuable information that could presumably save countless innocent lives. Why should the humanitarian impulse that underlies the Conventions not extend to the lives that could be saved through coercive interrogation? The fiduciary theory answers this vexing question by insisting that, even in cosmopolitan contexts involving foreign nationals, the fiduciary principle necessarily authorizes the possession and use of public power on behalf of every individual subject to it. This is the fiduciary theory's criterion of legitimacy, which itself is both a conceptual and normative criterion that illuminates the nature and scope of the fiduciary principle's authorization of public powers. It follows that intrinsically abusive actions cannot be authorized through law, as all exercises of public power must be intelligible, in part, as acts taken on behalf of each person subject to them.

The problem with the humanitarian justification of the Conventions is that it is an abstract philosophical and moral one that is indifferent to the institutional context of its application. Consequently, the humanitarian justification does not take into account constitutive limits that dictate the legal nature of authorization that public institutions enjoy.[17] under the fiduciary theory, public institutions can act as such only to the extent that they respect legal limits inherent to, and therefore partially constitutive of, the fiduciary relationship that exists between public institutions and the persons subject to them. In the detention context, the constitutive fiduciary limits are requirements of humane treatment and due process; these limits partially make the state-detainee relationship a fiduciary one. The humanitarian justification admits no intrinsic and constitutive limits. Therefore, from the standpoint of the humanitarian justification and interest-balancing, open-ended inquiries into the benefits to others of torturing a prisoner make good sense. under the fiduciary theory, however, the only relevant considerations are those pertaining to the rightful scope and use of the detaining state's authority over captive prisoners. By circumscribing the operation of humanitarian concerns to the state-prisoner relationship, the fiduciary model explains the strict prohibition on mistreatment as a relational duty partially constitutive of the state's international legal authority to detain prisoners of war. Consequently, if a state violates this duty, it undermines its detention authority.

  • [1] API, supra note 12, art. 1(4).
  • [2] See John Fabian Witt, Lincoln’s Code: The Laws of War in American History(2012); Richard Shelly Hartigan, Lieber’s Code and the Law of War (1985).
  • [3] Resolutions of the Geneva International Conference, Oct. 26-29, 1863, The Resolutions founded the InternationalCommittee of the Red Cross (ICRC); see also Jean Pictet, Development and Principlesof International Humanitarian Law 29-32 (1985) (tracing the modern laws of armedconflict to the Geneva Convention of August 22, 1864, which lay down initial guidelines for thecare of wartime sick and wounded).
  • [4] Henry Dunant, A Memory of Solferino 19 (1986) (1862). Dunant played an instrumental role in bringing about the Geneva International Convention of 1863 and the ICRC. Hewas subsequently selected as co-winner of the first Nobel Peace Prize.
  • [5] See Fourth Convention, supra note 11.
  • [6] For a list of signatories, their ratifications, and reservations, see (last visited Sept. 5, 2015). Protocols I and II have beenratified by 172 and 166 states respectively, but not by the United States.
  • [7] Theodor Meron, The Geneva Conventions and Public International Law, 91 Int'l Rev. RedCross 619 620 (2009).
  • [8] Id. at 624 (citing, inter alia, Military and Paramilitary Activities in and Against Nicaragua(Nicaragua v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (June 27); and CaseConcerning Armed Activities on the Territory of the Congo (Congo v. Uganda), 2005 ICJ Rep. 168,223 (Dec. 19).
  • [9] Third Convention, supra note 11, art. 17.
  • [10] Id.
  • [11] ICRC Commentary on Convention (III) Relative to the Treatment ofPrisoners of War, 12 August 1949, art. 17, at 156 [hereinafter ICRC Commentary onThird Convention].
  • [12] Id.
  • [13] Id.
  • [14] Stephen Ratner, Geneva Conventions, 165 Foreign Pol'y 26, 28 (2008).
  • [15] See Chapter 5.
  • [16] ICRC Commentary on Third Convention, supra note 23, art. 3, at 28. The ICRC heredescribes "respect for human personality” as "the basis on which all the Conventions rest.” Id.
  • [17] For a similar distinction between philosophical and juridical justifications in the context offiduciary relations, wherein the juridical justification alone takes seriously the legal normativityinherent to fiduciary relationships, see Paul B. Miller, Justifying Fiduciary Duties, 58 McGill L.J.969 (2013); and Paul B. Miller, Justifying Fiduciary Remedies, 63 u. Toronto L.J. 570 (2013).
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