POWs: does Australia meet its Geneva Convention obligations?

American troops in Afghanistan. flickr/Dvidshub

Recent media reports have called into question Australia’s adherence to the Geneva Convention during the early stages of fighting in Afghanistan and Iraq.

A key allegation is that Australia set up a system under which embedded US soldiers took custody of prisoners actually captured by Australian forces in order to avoid Geneva Convention obligations.

The Conversation spoke with Andrew Byrnes, Professor of International Law at the University of New South Wales and chair of the Australian Human Rights Centre, about exactly where Australia stands in regards to our obligation to prisoners of war.

Is Australia a full signatory to the Geneva Convention?

Australia is what is called a high contracting party to the Conventions. That means it has accepted the full scope of obligations under the Geneva Conventions of 1949. Australia is also a party to two additional treaties adopted in 1977, the Additional Protocols to the Geneva Conventions. These supplement and update the 1949 Conventions in a number of respects. Of particular importance is the Additional Protocol One.

Did Australia try and avoid our responsibilities under the Geneva Convention in Afghanistan and Iraq?

Generally, it is fair to say that Australia is strongly committed to the observance of the Geneva Conventions and the other laws of armed conflict. All Australian military are trained in the laws of war (including the Conventions), and there are procedures in place to ensure that these rules are observed.

However, the situation in Afghanistan and Iraq posed practical problems for Australia. Australian troops were going to go into combat in those countries and a likely result of engaging in fighting against enemy forces would be that some of them might surrender or be taken captive, and would thus be presumptively entitled to treatment as prisoners of war in accordance with the Third Geneva Convention. Yet Australia had no proper facilities in Afghanistan or in Iraq at the relevant times for the proper care of prisoners of war. But the United States did, and Australia found a solution to its practical problem in agreeing with the US that the US would deal with any persons taken captive by Australian forces.

However, if Australia captured the detainees, its obligations under the third Geneva Convention would still be triggered – they would be in its power and Australia would be considered a Detaining Power under the Convention. While it would still be possible to transfer captives to another party to the Convention (including the US), Australia would have to satisfy itself that the US was willing and able to apply the Convention (Article 12). If, after transfer, it emerged that the Convention was not being applied in any important respect, Australia would be obliged to take effective measures to get the situation remedied or to request the return of the transferees.

It appears that Australia did not want to get caught up in this web of continuing obligation, so agreed on an arrangement with the US, under which a US soldier would be embedded with Australian troops, and would “formally” take custody of any persons captured by Australian troops. The idea was that the captives would then always have been “in the power” of the US and that physically transferring them to a US facility would not involve a transfer from Australia as Detaining Power and so it obligations under article 12 of the Third Geneva Convention would not have been activated. Thus, Australia would not have needed to continue monitoring the situation of the transferees. It would also have had the benefit that Australia would not have to deal with the fact that the US had made clear that it did not interpret the application of the Convention as generously as did Australia and many other countries.

The problem with this artifice was that it flies in the face of a proper interpretation of the Convention, which must be interpreted in light of its ordinary meaning of its terms and in the light of its humanitarian object and purpose. An interpretation that seeks to sidestep what appear to be self-evident obligations by legal sleight of hand is not a defensible interpretation of the treaty. Australian troops, by capturing enemy fighters, clearly brought them within their power, and Australia’s obligations under the Convention were thereby triggered. The question then becomes whether Australian properly carried out its continuing duty under article 12.

Could a foreign national captured under these conditions take action against Australia?

It is very difficult for a belligerent on the other side of a conflict in which Australian troops are involved to bring any sort of legal proceedings based on an alleged violation of the Geneva Conventions. To the extent that the country of nationality of the detainees wishes to take the matter up, the normal diplomatic avenues can be explored (protest, request for compensation, etc). But this route is uncertain and very dependent on the international politics of the relationships between the States involved.

For various reasons it would also be very difficult (if not impossible) for a foreign national to bring an action in an Australian court alleging that he had suffered injury as the result of a violation of the Conventions. However, one possibility might be to bring a complaint against Australia before one of the UN human rights treaty committees, such as the Human Rights Committee, alleging that Australia’s failure to treat the person in accordance with the Convention also involve a violation of provisions of the International Covenant on Civil and Political Rights (such as the right to humane treatment or right to non-arbitrary detention). Similar cases have been brought under human rights treaties and legislation against the British government, with some success.

Is the Geneva Convention a 20th century relic and do we need a new agreement for 4th generation warfare?

There is something in that. However, one fundamental principle of the Geneva Convention is humane treatment of people who are not engaged in combat. This principle goes back a long way, but it is also very much a 21st century principle to which Australia adheres very strongly. Nevertheless, many of the assumptions underlying the Geneva Conventions reflect a world in which armed conflicts were more symmetrical than many of the armed conflicts that take place today.

As a result, there has been a lot of discussion about whether the Conventions are adequate to the modern world or need updating or supplementing. The argument has been forcefully made – and it is one I am persuaded by – that there is on the whole sufficient flexibility in the Convention to deal with these asymmetrical situations when they amount to armed conflicts.

In any case, the sort of instances we’re dealing with in the context of Australian capture of detainees in Iraq and Afghanistan do not involve such cases. They seem to be examples of classic combat scenarios between two armed forces, with the capture by members of one armed force of fighters from the other. In such circumstances the Geneva provisions prisoners of war kick in and seem to work reasonably well, if the letter and spirit of the law is followed.

Commitment to the full implementation of the Geneva Conventions doesn’t just serve the important humanitarian goal of ensuring the humane treatment of our fellow human beings when they are captured in combat. It also serves Australia’s national interest by promoting reciprocity in the observance of the laws of armed conflict. By scrupulously implementing the Conventions, we increase the likelihood that Australian soldiers captured in the field by enemy forces will receive similar treatment. Our military above all know this and place great importance on the question of promoting reciprocity, so the attempt to manufacture a work-around of Convention obligations in Afghanistan and Iraq is all the more surprising.