During the war-crimes trials that followed in World War II's wake, the German defendants challenged the applicability of the 1929 Geneva Convention to the conflict. Despite the fact that the Convention had been signed and ratified by the Reich Government of Germany, the United States, the United Kingdom, and nearly every other party to the conflict, the German officers asserted that the Convention did not apply to any party because the Soviet Union was not a signator. The Nuremberg Tribunal rejected the German officers' argument and held that the 1929 Geneva Convention was binding because it articulated general principles of international law that are binding on all nations in a conflict, despite one party's non-ratification of the Convention.
Just as World War I changed the international laws governing the treatment of prisoners of war, the world community's response to the atrocities committed at places like Berga during World War II brought about even more dramatic changes to the international conventions governing armed conflict. The Geneva Conventions of 1949 included an entire convention, Convention III, that addressed the identification, treatment, and protection of prisoners of war. Once again building off prior Conventions, the 1949 Convention sought to further clarify, define, and heighten the standards of treatment afforded prisoners of war.
International law continues to respond to modern conflicts and their changing political and military composition. In response to the independence movements against colonial governments in Africa and Asia, the international community sought to expand the 1949 Geneva Conventions to include individuals fighting in resistance movements, individuals who would otherwise not qualify as belligerents under the 1949 Conventions' definition. Through the creation of Protocols I and II to the Geneva Conventions of 1949, the international community sought to expand protections and respond to the changing nature of armed conflict. Although many nations have ratified these Protocols, the United States has neither signed nor ratified either one.
Recent events continue to raise a critical, complicated question with respect to prisoners of war: Who is entitled to the protections afforded by the 1949 Geneva Conventions? Are captured members of terrorist organizations proper prisoners of war? Are captured members of irregular military forces of a disfavored regime proper prisoners of war? Should organized, widely recognized guerilla movements receive these protections? There is little consensus with respect to these issues.
In the United States, the current administration has begun to take a position. Through the issuance of an Executive Order in early 2002, the Bush Administration asserted that the Taliban and Al Qaeda fighters captured in Afghanistan and Pakistan did not qualify as belligerents under the 1949 Geneva Conventions; therefore, U.S. officials argued, these fighters are not entitled to the protections afforded prisoners of war under this basic international agreement.
By asserting that these individuals did not qualify as prisoners of war, the Administration determined that it no longer had to comply with the protections required and the limitations imposed by the Geneva Conventions -- such as the ability to interrogate a detainee. As the nature of international violent conflict continues to evolve, the United States and the entire international community will continue to face these difficult questions.
SOURCES
Meron, Theodor. WAR CRIMES LAW COMES OF AGE: ESSAYS. Clarendon Press, 1998.
Detter, Ingrid. THE LAW OF WAR. Cambridge University Press, 2d ed., 2000.
Gardam, Judith. HUMANITARIAN LAW. Ashgate Press, 1999.
Anderson, Kenneth. "Who Owns the Rules of War?" THE NEW YORK TIMES MAGAZINE, April 13, 2003.
