Sixty years ago -- on August 12, 1949 -- the four Geneva Conventions of the post-World War II era were published. The first three revised and expanded earlier treaties dating back to the 1860s on the treatment of wounded soldiers, sailors at sea, and prisoners of war. The fourth deals with the treatment of civilians during wartime. But since the terrorist attacks of September 11, 2001, critics have charged that the Geneva Conventions are outdated and ill suited to an era where one side in a war is a militant group rather than the armed forces of a state. RFE/RL correspondent Ron Synovitz spoke with Knut Dormann, deputy head of the legal department of the International Committee of the Red Cross, about why the Geneva Conventions remain vital.
RFE/RL: Why are the Geneva Conventions so important to international humanitarian law today?
Knut Dormann: The main reason for international humanitarian law in general, and the Geneva Conventions in particular, is to put a limit to barbarity in an extreme situation like armed conflict. It is recognized, then, by all that even wars must have limits. The limits that must be applied are essentially in the Geneva Conventions plus other treaties of international humanitarian law. It is our strong belief that the very gist -- the principles that are enshrined in the Geneva Conventions -- remain as relevant today as when they were created.
RFE/RL: But what makes them so relevant today?
Dormann: If you look, really, at the human suffering in armed conflicts, what you see is in fact murder. You see torture, ill treatment, hostage taking, forced disappearances, sexual violence, rape, and comparable acts. And all of these acts are, in fact, prohibited by the Geneva Conventions themselves or by other treaties of international humanitarian law.
RFE/RL: Why don't the Geneva Conventions apply to all situations in the global war against terrorism?
Dormann: When we hear the term 'global war on terror,' we should not confuse this term -- which may not have a legal connotation -- with the scope of application of international humanitarian law. International humanitarian law first and foremost applies only once we have a situation of armed conflict. What we would call the fight against terrorism may take the form of armed conflict, as was the case in Afghanistan. But the fight against terrorism may also take other forms of a fight -- a police action, criminal cooperation, and so forth where international humanitarian law is not relevant.
RFE/RL: Since the September 11 terrorist attacks, some critics have said that the Geneva Conventions have become obsolete -- that they fail to be relevant in a war where one side is a terrorist organization instead of a state. How do you respond to this criticism?
Dormann: It's true that there were voices claiming that the Geneva Conventions were quaint after 9/11. But the point was that despite these allegations and despite the intense cross-examination that was done, really no concrete proposals have been made as to where there are deficiencies in the Geneva Conventions and that something new needed to be addressed. That was, in fact, the reason that after our internal examination that we came up with certain areas where we felt clarification was needed.
RFE/RL: So you admit that there are gaps in the legal protections that are offered by the Geneva Conventions?
Dormann: Where clarification of the law may be necessary -- and I'm not really speaking about necessarily a codification of new law, but a clarification of existing concepts -- we felt one necessary [clarification] in particular [was] when it comes to the notion of direct participation in hostilities. That is the criterion when civilians lose their [legal] protection against direct attacks. And this was particularly relevant because in modern armed conflicts, there is a bigger blurring of lines between civilians and combatants.
RFE/RL: How does the legal guidance of the International Committee of the Red Cross resolve the question of whether a civilian has crossed the line and become a combatant?
Dormann: The first point is to identify who is a civilian that would fall under the notion of direct participation in hostilities. And our conclusion is civilians are those who would not be part of the armed forces of a state, or who are [not] members of an organized armed group belonging to a party to a conflict and that have a continuous combat function. Those persons [who are soldiers or militants] would be targetable at all times, subject to some further limitations.
RFE/RL: What about the status of a person who is not a member of an armed force or a militant group? If they are civilians, what constitutes "direct participation in hostilities" on their part that would cause them to lose their legal protections under the Geneva Conventions?
Dormann: Here it is important to bear in mind that not all forms of participation that inevitably occur in the course of an armed conflict will lead to a situation where civilians would lose protection against attacks. Only if the contribution to the hostilities is direct is there a loss of protection. You may have situations where civilians are providing food and shelter to armed elements. This is clearly a situation where you don't have this direct contribution to the hostilities. And therefore, this activity may not lead to a loss of protection. On the other hand, if you participate in the hostilities through killing persons, injuring or destroying things, then clearly it is direct participation in hostilities."
RFE/RL: Much of the logistical support for armed forces today is carried out by private contractors. So what about a civilian contractor who drives a truck full of ammunition or food to soldiers or militants? Are they considered a legitimate target under the Geneva Conventions?
Dormann: Obviously, if a truck driver brings ammunition to the front line so that the fight can continue or that the armed forces continue, you have a direct link to hostilities. And therefore, it is justified that the person themselves can be a legitimate target. However, if transportation of weapons, equipment, and so forth is done somewhere in the rear areas of a territory without any direct connection to the actual fighting, then the person who is doing this activity is not losing his or her protection. On the other hand, obviously, if you have a storage facility of ammunition, then this storage facility may be a legitimate target. But you cannot target then the person who is driving the truck once he is at home with his family. That is not legitimate.
RFE/RL: Are there other gaps in the Geneva Conventions that have been exposed by the global war on terrorism?
Dormann: Another issue that we have been working on quite intensively was on procedural safeguards applicable in security detentions. The Geneva Conventions give some guidance for international armed conflicts once you detain persons for security reasons. But they are not complete in giving the detail. And in particular, in noninternational armed conflicts there is not much guidance in international humanitarian law. So what we did was to present a legal policy reading of such procedural safeguards that must be applied in cases of security detention.
RFE/RL: Former U.S. President George W. Bush's administration argued that Al-Qaeda and Taliban detainees at Guantanamo Bay, Cuba, were not "prisoners of war" because they were not soldiers from the armed forces of another country -- and therefore the Geneva Conventions did not apply to them. Can you explain your views on this legal debate?
Dormann: The debate that occurred at the time was what kind of [legal] regime would apply to those persons. We had followed very clearly the qualification that comes from the distinction between the different situations of violence. If you have an international armed conflict, then the protections coming from the Geneva Conventions have to be applied. If it is a noninternational armed conflict, then you go into the area between international humanitarian law and human rights law. That is true in this regard that there were important divergences of views as to the interpretation of the law between the U.S. administration and other actors -- including the International Committee of the Red Cross.
RFE/RL: Where does this debate stand now on the legal regime that should apply to detainees at Guantanamo Bay? Are you re-examining your policy reading that the Geneva Conventions do apply to detainees at Guantanamo Bay?
Dormann: For the time being, we are not doing any further work on this position. This is the position that we have issued as a matter of law and policy. When you refer now to the U.S. situation, it will be interesting to see [the] outcome [of] the review panels that President [Barack] Obama has installed following his executive orders at the beginning of his administration. They had a timeline to come up with conclusions on the detention regime -- and also interrogation measures and on [the future of] Guantanamo by July of this year. But they got an extension of their deadline. So we have to wait to see what comes out.
RFE/RL: How are some of the other 193 countries that have ratified the Geneva Conventions reacting to your legal policy readings?
Dormann: Thus far, the governments have not necessarily taken a position on the guidance, which is fairly new. But at least when you look at state practice as reflected in military manuals and also in battlefield experience, I would say that the vast majority on this concrete case would follow the logic that the ICRC has applied. But there may be divergences of views on other parts. This is normal given the fact that international humanitarian law -- the treaty itself -- does not define the notion. So whenever you have a concept in law, you may have different interpretations. But there we believe that the stance we have taken is pretty much the one that is acceptable and realistic in state practice.
RFE/RL: Why are the Geneva Conventions so important to international humanitarian law today?
Knut Dormann: The main reason for international humanitarian law in general, and the Geneva Conventions in particular, is to put a limit to barbarity in an extreme situation like armed conflict. It is recognized, then, by all that even wars must have limits. The limits that must be applied are essentially in the Geneva Conventions plus other treaties of international humanitarian law. It is our strong belief that the very gist -- the principles that are enshrined in the Geneva Conventions -- remain as relevant today as when they were created.
RFE/RL: But what makes them so relevant today?
Dormann: If you look, really, at the human suffering in armed conflicts, what you see is in fact murder. You see torture, ill treatment, hostage taking, forced disappearances, sexual violence, rape, and comparable acts. And all of these acts are, in fact, prohibited by the Geneva Conventions themselves or by other treaties of international humanitarian law.
RFE/RL: Why don't the Geneva Conventions apply to all situations in the global war against terrorism?
Dormann: When we hear the term 'global war on terror,' we should not confuse this term -- which may not have a legal connotation -- with the scope of application of international humanitarian law. International humanitarian law first and foremost applies only once we have a situation of armed conflict. What we would call the fight against terrorism may take the form of armed conflict, as was the case in Afghanistan. But the fight against terrorism may also take other forms of a fight -- a police action, criminal cooperation, and so forth where international humanitarian law is not relevant.
RFE/RL: Since the September 11 terrorist attacks, some critics have said that the Geneva Conventions have become obsolete -- that they fail to be relevant in a war where one side is a terrorist organization instead of a state. How do you respond to this criticism?
Dormann: It's true that there were voices claiming that the Geneva Conventions were quaint after 9/11. But the point was that despite these allegations and despite the intense cross-examination that was done, really no concrete proposals have been made as to where there are deficiencies in the Geneva Conventions and that something new needed to be addressed. That was, in fact, the reason that after our internal examination that we came up with certain areas where we felt clarification was needed.
RFE/RL: So you admit that there are gaps in the legal protections that are offered by the Geneva Conventions?
Dormann: Where clarification of the law may be necessary -- and I'm not really speaking about necessarily a codification of new law, but a clarification of existing concepts -- we felt one necessary [clarification] in particular [was] when it comes to the notion of direct participation in hostilities. That is the criterion when civilians lose their [legal] protection against direct attacks. And this was particularly relevant because in modern armed conflicts, there is a bigger blurring of lines between civilians and combatants.
RFE/RL: How does the legal guidance of the International Committee of the Red Cross resolve the question of whether a civilian has crossed the line and become a combatant?
Dormann: The first point is to identify who is a civilian that would fall under the notion of direct participation in hostilities. And our conclusion is civilians are those who would not be part of the armed forces of a state, or who are [not] members of an organized armed group belonging to a party to a conflict and that have a continuous combat function. Those persons [who are soldiers or militants] would be targetable at all times, subject to some further limitations.
RFE/RL: What about the status of a person who is not a member of an armed force or a militant group? If they are civilians, what constitutes "direct participation in hostilities" on their part that would cause them to lose their legal protections under the Geneva Conventions?
Dormann: Here it is important to bear in mind that not all forms of participation that inevitably occur in the course of an armed conflict will lead to a situation where civilians would lose protection against attacks. Only if the contribution to the hostilities is direct is there a loss of protection. You may have situations where civilians are providing food and shelter to armed elements. This is clearly a situation where you don't have this direct contribution to the hostilities. And therefore, this activity may not lead to a loss of protection. On the other hand, if you participate in the hostilities through killing persons, injuring or destroying things, then clearly it is direct participation in hostilities."
RFE/RL: Much of the logistical support for armed forces today is carried out by private contractors. So what about a civilian contractor who drives a truck full of ammunition or food to soldiers or militants? Are they considered a legitimate target under the Geneva Conventions?
Dormann: Obviously, if a truck driver brings ammunition to the front line so that the fight can continue or that the armed forces continue, you have a direct link to hostilities. And therefore, it is justified that the person themselves can be a legitimate target. However, if transportation of weapons, equipment, and so forth is done somewhere in the rear areas of a territory without any direct connection to the actual fighting, then the person who is doing this activity is not losing his or her protection. On the other hand, obviously, if you have a storage facility of ammunition, then this storage facility may be a legitimate target. But you cannot target then the person who is driving the truck once he is at home with his family. That is not legitimate.
RFE/RL: Are there other gaps in the Geneva Conventions that have been exposed by the global war on terrorism?
Dormann: Another issue that we have been working on quite intensively was on procedural safeguards applicable in security detentions. The Geneva Conventions give some guidance for international armed conflicts once you detain persons for security reasons. But they are not complete in giving the detail. And in particular, in noninternational armed conflicts there is not much guidance in international humanitarian law. So what we did was to present a legal policy reading of such procedural safeguards that must be applied in cases of security detention.
RFE/RL: Former U.S. President George W. Bush's administration argued that Al-Qaeda and Taliban detainees at Guantanamo Bay, Cuba, were not "prisoners of war" because they were not soldiers from the armed forces of another country -- and therefore the Geneva Conventions did not apply to them. Can you explain your views on this legal debate?
Dormann: The debate that occurred at the time was what kind of [legal] regime would apply to those persons. We had followed very clearly the qualification that comes from the distinction between the different situations of violence. If you have an international armed conflict, then the protections coming from the Geneva Conventions have to be applied. If it is a noninternational armed conflict, then you go into the area between international humanitarian law and human rights law. That is true in this regard that there were important divergences of views as to the interpretation of the law between the U.S. administration and other actors -- including the International Committee of the Red Cross.
RFE/RL: Where does this debate stand now on the legal regime that should apply to detainees at Guantanamo Bay? Are you re-examining your policy reading that the Geneva Conventions do apply to detainees at Guantanamo Bay?
Dormann: For the time being, we are not doing any further work on this position. This is the position that we have issued as a matter of law and policy. When you refer now to the U.S. situation, it will be interesting to see [the] outcome [of] the review panels that President [Barack] Obama has installed following his executive orders at the beginning of his administration. They had a timeline to come up with conclusions on the detention regime -- and also interrogation measures and on [the future of] Guantanamo by July of this year. But they got an extension of their deadline. So we have to wait to see what comes out.
RFE/RL: How are some of the other 193 countries that have ratified the Geneva Conventions reacting to your legal policy readings?
Dormann: Thus far, the governments have not necessarily taken a position on the guidance, which is fairly new. But at least when you look at state practice as reflected in military manuals and also in battlefield experience, I would say that the vast majority on this concrete case would follow the logic that the ICRC has applied. But there may be divergences of views on other parts. This is normal given the fact that international humanitarian law -- the treaty itself -- does not define the notion. So whenever you have a concept in law, you may have different interpretations. But there we believe that the stance we have taken is pretty much the one that is acceptable and realistic in state practice.
