JURIST Contributing Editor David Crane of Syracuse University College of Law says that as we celebrate the universality of the Geneva Conventions of 1949, we must recognize that the murder, rape, maiming, mutilation, and pillaging of non-combatants worldwide goes on unabated while the United States, once a champion of the Conventions, has stumbled and committed multiple breaches of their provisions in its single-minded conduct of the war on terror…

Last week the International Committee of the Red Cross announced that the island nation of Nauru and the Balkan nation of Montenegro have become the most recent states to sign the Geneva Conventions of 1949. All the nations of the world have now signed this treaty that ensures humane treatment in conflict, embodying centuries of law, custom, and the practice of placing warfare under the rule of law.

The Geneva Conventions were promulgated in the middle of mankind’s bloodiest century. The beast of impunity fed well and often around the periphery of civilization consuming over 200 million lives many at the hand of their own governments. The 21st century does not bode well in this regard.

In the year where we solemnly remember the 60th anniversary of the judgments at Nuremberg, and next year the 100th anniversary of the Hague Rules that laid out guidance for armies as to how they target and use their weapons humanely, under the concepts of military necessity, proportionality, and unnecessary suffering, it is both right and proper that we pause on this occasion and ask this question: Are the Geneva Conventions being used and abused by nations as a shield to cover their own inequities in human rights or to put it simply are these important legal principles only smoke and mirrors as we plunge in to a new century where it appears that the beast of impunity still lurks unchecked?

The answer to this rhetorical question is illusive and imprecise. In many ways the international community has made significant strides in facing down impunity. Since the Geneva Conventions nations have entered into numerous agreements limiting or outlawing such things as torture, genocide, the use of bacteriological and chemical weapons to name a few. Key human rights instruments have also been established, such as the Universal Declaration of Human rights. The creation of important institutions like the United Nations, the International Court of Justice, the International Criminal Court, the various international criminal tribunals, as well as the rise of nongovernmental institutions and civil society allow for mechanisms to be created to seek justice and monitor impunity. So the answer to the extant question can be a positive one in that the Geneva Conventions are not being abused, that they are taken seriously and used to counter evil.

Yet, despite all of this, the murder, rape, maiming, mutilation, pillaging, destruction of non-combatants worldwide goes on unabated. In such places as Darfur, Iraq, the Congo, Uganda, and Columbia human suffering continues. The sole super power, the United States, once the champion of the Geneva Conventions, has stumbled and committed breaches of their provisions in Iraq, Afghanistan, Guantanamo, and Eastern Europe in its single-minded conduct of the war on terror. Naïve statements by senior policy makers and lawyers within the Bush administration that the Geneva Conventions are obsolete and quaint, as well as to modify existing domestic law to remove them from liability are public confessions to their complicity in these violations. Their ignorance of the Geneva Conventions has led them to do harm to the prestige of the United States around the world that once was a nation of laws. In some sense the United States has lost the moral high ground by ignoring the important principles laid out in the Geneva Conventions. There is an abuse here to be sure.

The Supreme Court of the United States in their recent decision in Hamdan v. Rumsfeld certainly refocused US policy on conducting the fight against international terror under the rule of law. This ruling clearly recognized the relevance and importance of the Geneva Conventions. The Bush administration “smoke and mirrors policy” related to international humanitarian law has set the tone for how we will take on terrorists and other national threats in the 21st century. The Hamden decision certainly has given them pause. The administration talks the talk about freedom, democracy, and the rule of law, yet they don’t walk the walk. Using torture as a weapon, killing noncombatants, and actively seeking to destroy the 21st century’s legal cornerstone in accounting for atrocity, the International Criminal Court, are but a few clear and sad examples.

The Geneva Conventions are as relevant today as they were in 1949. They are the moral thread that now binds all nations into a common legal purpose to regulate conflict, to treat humanely all persons caught up in the conflict, and to punish those who breach their principles. The rules have not changed, only the threat. The Geneva Conventions are mankind’s one true hope in ensuring that the beast of impunity is faced down wherever it rears it ugly head in this new century. Let us rejoice in their universality. 194 nations joined together is a powerful statement in accountability.

David M. Crane is a professor at Syracuse University College of Law, and former founding Chief Prosecutor for the international war crimes tribunal in West Africa, called the Special Court for Sierra Leone, 2002-2005. He is a former paratrooper and judge advocate who helped develop and teach the US Department of Defense Law of War Program for almost 20 years.

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