The Geneva Conventions legally oblige States to exercise constraint in their treatment of non-combatants: civilians and prisoners of war.
The 1929 Diplomatic Conference established a convention for the treatment of prisoners of war and the sick and wounded. The International Committee of the Red Cross described how it was extended in 1949, to include the Protection of Civilian Persons in Time of War. The conventions form a definition of jus in bello, in the terminology of ‘just war’ theory (4.3.5.5).
Rule 158 of the Geneva Conventions declares:
“States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.”
Almost all countries have agreed to comply, and in doing so they commit themselves to use their own jurisdictions to prosecute breaches. Implementation has been inconsistent:
· Ward Ferdinandusse’s article, The Prosecution of Grave Breaches in National Courts, observed that implementation has been patchy in practice: “the grave breaches regime has so far not lived up to its potential.”
· America convicted 11 soldiers of the horrific prisoner abuse at Abu Ghraib, but “a 2008 lawsuit filed by former detainees against CACI Premier Technology” is moving very slowly through the courts.
The Conventions were designed to prosecute individual abuses of human rights. When countries engage in war crimes on a large scale, though, they are unlikely to prosecute themselves so they must be referred to the Security Council.
(This is an archive of a page intended to form part of Edition 4 of the Patterns of Power series of books. The latest versions are at book contents).