The Geneva Conventions and The War on Terror



What rights did the insurgents and members of Al-Qaeda have once they were captured by U.S. forces in Afghanistan and Iraq? This question was complicated and heavily debated within the Bush administration and the Department of Justice during America's War on Terror. Would those captured be protected by the agreements found in the Geneva Conventions as prisoners of war, civilians, or something completely uncovered by the Geneva Conventions? How were these prisoners to be classified? The Geneva Conventions were agreed to and ratified as international humanitarian law in 1949 following the conclusion of World War II. These agreements were implemented to protect specifically those who were not participating in direct combat and also established rules for all nations regarding the treatment of those captured during a conflict. One hundred and ninety-four states have signed the Geneva Conventions making it essentially universally applicable. America's interest in signing the Geneva Conventions was to protect American soldiers who would be captured in times of international conflict. The U.S. had maintained standards and guidelines that were stricter than those of the Geneva Conventions. So the Geneva Conventions were viewed as the minimum protection that all countries would adhere to with respect to the classes covered in their specific guidelines.

With American lives at stake in the War on Terror and the only solution being the effective extraction of intelligence from those of the insurgents in Iraq and Afghanistan, the Geneva Conventions became a pivotal question when regarding those members of the Taliban, Al-Qaeda, and the insurgency in Iraq. John Yoo and the Justice Department would conclude that the executive branch, specifically the President had the authority to conduct coercive interrogations in two legal opinions that later became known as the "torture memos". These memos were written in August 2002 and the second in March of 2003. Yoo and the Justice Department did not believe that any of the members of the insurgency in Iraq and Afghanistan had any protection under the terms and conditions of the Geneva Conventions. Their legal argument for this was because Al-Qaeda had never signed the Geneva Conventions and in their terrorist attacks, they targeted civilians, disguised themselves as civilians, and followed no rules of warfare. Yoo specifically sites the Al-Qaeda attacks on 9/11 where civilians and innocent Americans were killed as proof that Al-Qaeda does not adhere to the Geneva Conventions themselves so they have no right to seek protection under those conventions themselves. But should the U.S. hold itself to a higher standard as it had always done in international military conflicts?

Early in 2002, President Bush made the decision, based upon the reports of John Yoo and the Justice Department, that the Geneva Conventions provided no protection to those captured in the War on Terror. This had never happened in American history. Donald Rumsfeld would deem these prisoners, not as prisoners of war, but as unlawful combatants. Rules for interrogating prisoners of war would be critical to the success in America's War on Terror, and because of the need for intelligence, President Bush would use the power of the executive branch alone to approve of the interrogation techniques that would be implemented in Iraq and Afghanistan. President Bush had been warned that the International Criminal Court could seek indictments of American officials as a result of their actions in the War on Terror, but Bush continued to move forward with a "go in it alone" approach. This had become the hallmark of the Bush administration because of Bush's willingness to exercise the power given to the President as Commander and Chief to protect American lives.  This policy would lead to the atrocities that would take place at Abu Ghraib in the treatment of prisoners there.