As the landscape of warfare changes there are increasing concerns related to the treatment and detention of detainees and captured persons.

The principal guidance within this field are the Geneva Conventions. These provide a number of rights and provisional allowances to detainees who must meet the requirements to be classified as a Prisoner of War.

This article evaluates the approaches adopted by various Nation States and signatories to the Geneva Conventions. The modern approach to detainee categorisation and management is considered, with the focus issue being the arising concern faced by all Nation States who actively engage in combat with terrorist organisations, being ‘How should we treat them?’

The treatment of Prisoners of War, which are set aside from enemy combatants and civilian detainees, are governed by oversight of the International Community of the Red Cross, a non-for-profit organisation that provides guidance and advice whilst remaining neutral (advice which is not published for wider dissemination).

The American approach to detainee handling has come under scrutiny on a number of occasions. Perhaps the most notable event involves the treatment of detainees in the American-run Abu Ghraib detention camp, which led to 11 military members being prosecuted for dereliction of duty following the worldwide release of photos which highlighted that certain detainees were exposed to extreme levels of deprivation and poor treatment, including torture. This would not be of grave concern to Australia, if not for the fact that as a primary acting power in the Middle East Area of Operations (MEAO) and other conflicts, the majority of detainee handling is managed by America – that is to say, Australian forces link directly with the US in this area. This raises further moral concerns, as there are provisions of the Geneva Conventions which provide that a Nation State cannot give to another Nation State a detainee knowing that the conditions or manner of treatment are less than are currently provided.

It is evident from similar examples and demonstrated behaviours that there has been an active effort to subvert the rights of specific detainees: active members of terrorist groups. This is despite the implementation of the Third Geneva Convention which was ratified by the United States on 2 August 1955.

The result of this classification and treatment is that detained persons may be held indefinitely without trial of either a military or civilian nature. As recently as 2004, the U.S Supreme Court ruled in Rasul v Bush that the court does have jurisdiction to hear requests for habeas corpus (freedom from detention). However, this case left unanswered questions on the status and rights of prisoners.

There are numerous benefits of being classified as a Prisoner of War, and while ideally one would not end up so, should this situation arise it is noted that this classification is the most advantageous. In contemporary warfighting there are three primary classifications used by capturing units to assist in determining the treatment, rights and provisions to a person. These being:

• Prisoner of War;
• Civilian Detainee, and;
• Unlawful Belligerent.

The approach to not classify enemy combatants as prisoners of war has been criticised. There are significant constitutional and individual rights concerns in the practice of ‘preventative detention’. It is noted that Australia’s position is ‘strikingly’ different than the approach taken by the United States, which relies on Executive Orders from the President. It is opined that Australia has been codified using the Criminal Code and Anti-Terrorism laws as the formal process for preventative detention.

Calls for legal reform acknowledge the complex situation and the need to address indeterminacies in the law. Reform should come through legislation and an expansion in the scope and reach of the Geneva Conventions, being the primary source of education within this field.

Recommendations to resolve the proposed lack of protections is outside the scope of this review. However, in 2012 a meeting of the Copenhagen Process on the Handling of Detainees in International Military Operations raised the issue of implementing a ‘common legal platform’ for handling of detainees.

Presently the Copenhagen Process has been earmarked for further review by the International Committee of the Red Cross (ICRC), with specific emphasis placed on detention policies.

Given the likelihood of continual and ongoing warfare being similar in nature to the Afghanistan and Syrian conflicts (i.e. being of a Nation State versus a terrorist group), it is suggested that a more model approach be adopted regarding the treatment of detainees and captured persons who represent these groups. This would be seen as a necessity, given the actions of the dominant United States in a number of situations which have highlighted the removal of all rights and inhumane treatment of detainees. 

It is possible for Australia to be at the forefront of this change and implement a more socially responsible and morally digestible process for terrorist detainee handling. As there is currently no information widely available in the public regarding such matters, should it become a greater issue of contention then it would be advantageous to ‘get in front’ of the potential for allegations of mistreatment and breaches of humanitarian law, which have already begun to creep into the Australian sphere.

It is apparent that international law and the Geneva Conventions need to adapt to meet new challenges. It has been noted that the Geneva Conventions have previously been modified following major warfare or conflict. It is suggested that a model approach to prisoner treatment is adopted above the current rights enshrined within the Conventions.