Image via WikipediaHeightened anxiety over the threat of terrorism in Europe should not lead to changes in the protection offered by the Geneva Conventions, Council of Europe legal experts have declared.
"The Geneva Conventions – regarding provisions for detention and treatment of persons - may date back to 1949 but they are still valid," said a spokeswoman for the Venice Commission.
The commission's declaration follows concern that the protection given to those who qualify as Prisoners of War (POWs) should be changed to meet the current international terrorist threat posed by al Qaeda.
Venice Commission opinion on the possible need for further development of the Geneva conventions
The new dimension of international terrorism, which has emerged in particular, on the occasion of the attacks of 11 September 2001, raises the crucial issue of the capacity of International Humanitarian Law adequately to address new forms of terrorist violence.
The foregoing analysis shows that International Humanitarian Law, as far as it concerns the rules on detention and treatment of persons who have been detained in the course of an international armed conflict, offers a generally appropriate legal framework. This is because:
- Suspected members of an international terrorist network, such as al Qaeda, who are nationals of a party to such a conflict, fall into the category of other “protected persons” under GC IV, though they usually do not qualify for POW status, and,
- Although GC IV excludes the nationals of a state that is not a party to the conflict, these nationals benefit from the protection of Article 75 of the First Additional Protocol to the Geneva Conventions of 1949 relating to the protection of victims of international armed conflicts (which reflects a rule of customary international law), from human rights law and from the rules on diplomatic protection.
It therefore appears that in respect of these matters there is no legal void in international law, and no need for further development of the Geneva Conventions. However, it is of paramount importance that the rules of International Humanitarian Law, as well as human rights law, be properly implemented.
Having said that, and as far as the general issue of “new categories of combatants” and recent developments of international terrorism are concerned, the Commission does not mean to close the door to the progressive development of international law. International law, as any branch of law, is perfectible and must adapt to meet new conditions.
The Geneva Conventions, framed in 1949 in the context of the conditions pertaining in World War II, have since been continually developed, in particular, by the two Protocols of 1977. Since 11 September 2001, a new dimension of international terrorism has appeared with the emergence of unprecedented militarised international terrorist organisations. The membership of these organisations crosses national boundaries. Their purposes are often diffuse. They have attacked different kinds of targets, individual or collective, in different countries. Their methods are unconventional and have the potential to bring about widespread destruction on a massive scale.
The Commission recommends further reflection to consider whether any additional instrument may be needed in the future to meet or anticipate these novel threats to international peace and security. Any attempt in this respect must, however, take care not to inadvertently undermine the existing level of protection under the international humanitarian law as well as the international law of human rights.