Point-Counterpoint: Geneva Convention Applicability to the U.S. in Afghanistan
A familiar argument against changing the Army’s MEDEVAC policies is that the United States is a signatory state on the Geneva Convention and we are prohibited from providing medical evacuation to wounded troops in unmarked, armed helicopters. The argument often is buttressed by the admonition that even if our adversaries (the Taliban and al Qaeda) are not signatories and do not follow the provisions of the Geneva Convention, the United States is required to do so.
In fact, the Geneva Convention is a legal contract among signatory states and parties that defines the acceptable behavior of belligerents that are also signatories to the Geneva Convention.
This is such an important point that the International Red Cross (IRC) which is the managing body for the Geneva Convention provides detailed discussion on this issue.
Chapter I : General provisions
ARTICLE 2 In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. [emphasis added]
“The Rapporteur of the Special Committee gives the following explanation of the motives which guided his Committee: “As a general rule, a Convention could lay obligations only on Contracting States. But, according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized. The text adopted by the [p.32] Special Committee, therefore, laid upon the Contracting State, in the instance envisaged, the obligation to recognize that the Convention be applied to the non-Contracting adverse State, in so far as the latter accepted and applied the provisions thereof.” (6)
“There are two conditions to be fulfilled under this part of the paragraph — (a) acceptance and (b) de facto application of the Convention. What happens if the non-Contracting Party makes no declaration, but in actual fact applies the Convention? Before answering this question, let us see what is meant by accepting the provisions of the Convention.
Is a formal and explicit declaration by a non-Contracting State indispensable? The Rapporteur of the Special Committee seems to say that it is. “A declaration”, he wrote, “was necessary, contrary to the Canadian amendment, according to which an attitude on the part of the non-Contracting State in conformity with the Convention would [p.36] have sufficed to make it applicable”. He added, it is true, that it was not possible to lay down any uniform procedure in the matter, and that “the Convention would be applicable as soon as the declaration was made. It would cease to be applicable as soon as the declaration was clearly disavowed by the attitude of the non-Contracting belligerent“. [emphasis added]
From this commentary it is clear that since the Taliban and al Qaeda (a) have never accepted the provisions of the Geneva Convention and (b) never applied the provisions of the Geneva Convention the U.S. is not obligated to be restricted by the provisions of the Geneva Convention. The U.S. may choose to restrict itself to adherence to one or more provisions of the Geneva Convention by policy, but it is under no legal obligation to do so.
This reading of the Geneva Convention and the accompanying commentary supports the ability of the U.S Air Force, U.S. Marine Corps, U.S. Special Operations Command, and the armed forces of the United Kingdom to legally perform medical evacuations using vehicles that do not display the Red Cross symbol and are armed with crew served weapons in addition to personal weapons such as pistols and rifles.
The decision of the U.S. Army to restrict its medical evacuation efforts to vehicles that display the Red Cross symbol and are unarmed is one of policy – not law.