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Last Updated: Wednesday, 5 April 2006, 14:51 GMT 15:51 UK
Q&A: Geneva rules and the 'war on terror'
The British Defence Secretary John Reid has called for a re-examination of the rules of war. In particular he asked whether the Geneva Conventions on humanitarian law are adequate in an age of international terrorism.

What are the Geneva Conventions?

The Geneva Conventions are a group of international treaties designed to protect the sick or wounded, prisoners of war and civilians. They had their origin in the 19th Century, when a Swiss businessman Henri Dunant witnessed the slaughter at the Battle of Solferino in 1859 in Northern Italy, part of the struggle for Italian unification.

Mr Dunant helped treat the wounded in a church. He subsequently founded the International Committee of the Red Cross and in 1864 the first convention for the protection of wounded soldiers was signed by 12 states.

What do the conventions say?

There are four conventions, which were signed in 1949, with two additional protocols in 1977.

The First Convention was a follow-up to the 1864 agreement and protects sick and wounded soldiers.

The Second Convention extends protection to those fighting at sea.

The Third Convention covers prisoners of war and says they must be protected from harm and not prosecuted for lawful actions on the battlefield.

The Fourth Convention was new in 1949 and, drawing on the experience of civilian suffering in World War II, stated that civilians must not be deliberately targeted.

What is the issue raised by Mr Reid?

This concerns the Third Convention, covering prisoners of war. He argued that it needed re-examination because international terrorists are not listed as being eligible for prisoner of war status and, therefore, fall into a grey area. The convention's Article 3 says that combatants have to be identified and under proper command if they are to claim POW status. Mr Reid did not propose any specific changes but hinted that the convention should be extended to cover this gap in some way, perhaps by legalising the long-term detention of al-Qaeda-type prisoners.

How could the conventions be extended to al-Qaeda if it attacks civilians?

This would be a problem as the conventions outlaw any attack directed solely or mainly at civilians, which is what al-Qaeda specialises in. And to gain POW status, combatants have to follow the conventions. One idea would be that an international terrorist ignoring such rules of war might be liable to detention without having the full protection of POW status.

Do the Geneva Conventions cover the Guantanamo Bay prisoners?

Some argue that they should, but the US says that they do not, on the grounds that the prisoners are "unlawful combatants" and are not in the categories listed for protection by the Third Convention. The US Attorney General Alberto Gonzales once called the Geneva Conventions "quaint". However, the US also says that the prisoners are treated in accordance with the "principles" of the Third Convention and other humanitarian law.

By denying them formal POW status, the US is free to interrogate them, something prohibited by the Third Convention, which requires POWs to give only their name, rank, age and number.

Does the Third Convention not require that a prisoner's status be determined?

Yes. It lays down that a tribunal has to determine if someone is a combatant and whether he or she falls into a protected category. The US has introduced tribunals at Guantanamo Bay to determine a prisoner's "combatant status" and some have been released or sent back to their home countries as a result. But as the US does not accept the application of the Geneva Conventions at the camp, those found to be "combatants" are still held as before.

So what legal status do the Guantanamo Bay prisoners have?

The British Appeal Court said in 2003 that they were in a "legal black hole". They are not formal POWs and are on territory controlled but not owned by the US, so their access to US courts was at first denied. Their position was improved somewhat in 2004 when the US Supreme Court ruled they were allowed to petition the US courts under the ancient law of habeas corpus, according to which detention has to be justified. The extent to which they can do this is currently under challenge by the US Government.

Do the Conventions prohibit torture and ill treatment?

Yes, and so does the separate UN Convention Against Torture and Other Cruel, Degrading or Inhuman Treatment or Punishment from 1985. The United States says it does not torture prisoners and a recent US law made clear that cruel, degrading or inhuman treatment is not permitted by any US personnel anywhere. However, US interrogation methods permit some procedures that the US says fall short of such treatment.

The US-based human rights organisation Human Rights Watch says the ability of prisoners to get redress is limited by a new law and that information acquitted through "coercion" might still be used against them.

Mr Reid called Guantanamo Bay an "anomaly". What does he mean?

He means that the camp falls outside normal international law. However, he is less clear about how to end this anomaly. There are two ways to get rid of an anomaly. The first is to remove the anomaly itself. This would mean closing the camp and either charging or releasing the prisoners or restricting their movements to some degree.

The other way is to remove the situation under which something becomes an anomaly. If international law were changed to allow for detention of al-Qaeda suspects, the "anomaly" would disappear. Mr Reid hinted that this was what he meant.

What about the two other issues - self-defence and humanitarian intervention?

Mr Reid argued that the principle of self-defence should be extended. At the moment self defence is allowed if a country is attacked or if an attack is imminent. Mr Reid thinks that the word "imminent" should be redefined to include, for example, the threat from preparations for international terrorism.

As for humanitarian intervention, the UN has looked at this and came up with the concept of a "responsibility to protect." If a government fails, as in Rwanda for example, then other countries have the right to intervene. Mr Reid appears to want this made more active.

What are the chances of getting changes agreed?

Very low at the moment. Many governments and human rights organisations say that no changes are needed and that terrorist suspects should be charged, freed or have restrictions placed on them in some other way. And there is suspicion of the US and UK governments following the invasion of Iraq.

Paul.Reynolds-INTERNET@bbc.co.uk


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