Today marks the 66th anniversary of the Geneva Conventions. On this occasion, we have chosen to re-post a Q&A by Knut Dörmann, Head of the ICRC's Legal Division, in which he weighs in on the challenges facing the rules of war today and on the organization's ongoing efforts to ensure that the Conventions continue to stand the test of time.
Knut Dörmann, 7 August 2009
On 12 August, 2009 the Geneva Conventions will turn 60 – an important milestone for the treaties, which place limits on how war is waged and form the cornerstone of international humanitarian law (IHL).
In 1949, States met in Geneva to revise the existing Geneva Conventions and add a fourth one dedicated to the protection of civilians. Since then, these treaties have been supplemented by three Additional Protocols.
Some critics have suggested that the Conventions are approaching the age of retirement and are no longer suited for the kind of contemporary wars that pit regular armies against armed groups, and in an era when most wars are fought within States, not between them.
Proponents maintain that the rules are indeed still relevant and that the Conventions, together with their Additional Protocols, continue to provide the best available framework for protecting civilians and people who are no longer fighting.
What are the Geneva Conventions and what purpose do they serve?
The Conventions are the most important component of international humanitarian law, or IHL, as it is commonly known – the body of rules that protect civi lians and people who are no longer fighting, including wounded and sick military personnel and prisoners of war. Their purpose is not to stop war but rather to limit the barbarity of armed conflict.
The Geneva Conventions only apply to international armed conflicts, with the exception of Article 3 common to all four Conventions, which also covers non-international armed conflicts. The adoption of this article in 1949 was a breakthrough since previous IHL treaties had only covered situations of wars between States. As most of today's wars are non-international armed conflicts, Article 3 remains vitally important because it sets a baseline for the protection of people who are not or no longer fighting, to which all sides – State and non-State parties to conflict – must abide.
Remarkably, the Conventions have been universally ratified, meaning every single State in the world is party to them. ( States Party to the Geneva Conventions )
What is the ICRC's link to the Conventions?
The ICRC has been closely linked to the Geneva Conventions from the start. The founder of the ICRC, Henry Dunant, also had the idea for the First Geneva Convention, " for the amelioration of the condition of the wounded in armies in the field, " which was adopted in 1864.
Since Dunant's time, the ICRC has always tried to compare the Geneva Conventions, and IHL as a whole, to the reality of armed conflict as we experience it on the ground. From the very beginning, we have been part of a dynamic process which ensures that IHL is adapted to ongoing changes in warfare.
For example, in the years leading up to the Second World War, the ICRC drafted and sought approval for an International Convention on the condition and protection of civilians of enemy nationality who were on a territory belonging to or occupied by a belligerent. No action was taken on that text since governments refused to convene a diplomatic conference to decide on its adoption.
As a result, there was no specific treaty that protected civilians against the horrors of the Second World War. In response, the international community agreed in 1949 to adopt the Fourth Geneva Convention for the protection of civilians. This was really a watershed moment in terms of ensuring that civilian populations and property are spared during times of armed conflict.
Today, the ICRC derives its humanitarian mandate – its job description, in a sense – from the Conventions, which task the ICRC with visiting prisoners, organizing relief operations, re-uniting separated families and similar humanitarian activities during armed conflicts. The ICRC is mentioned explicitly in several provisions of the Conventions.
Some say that the Conventions were designed for a completely different world, and are now in need of being revised, if not rewritten. What's your response?
In my mind, the problem doesn't lie with the law. In fact, the Conventions have proven to be surprisingly relevant over the past six decades. Since 1949, the Conventions have been supplemented by the Additional Protocols and by important developments in customary international humanitarian law, which further strengthened the protectio n of civilians, especially in non-international armed conflicts, thus adapting to new realities.
The major challenge is that the law is not being respected nearly enough. Too few people know what the Geneva Conventions are, while too many warring parties ignore or flout them. I firmly believe that if the existing rules were respected and abided by, much of the suffering caused by current armed conflicts could be avoided.
At the same time, let's not forget that the Conventions have been hugely successful over the past 60 years, saving countless lives, allowing thousands of separated families to be reunited and providing comfort to millions of prisoners of war. In my mind, that's ample reason to celebrate. I dread to think how much more suffering there would be in the world if they didn't exist.
Let's also not forget that international armed conflicts and occupation are by no means a thing of the past. Last year's war between Russia and Georgia is a recent example of an international armed conflict where all four of the Geneva Conventions were applicable.
In what ways has IHL developed over the past six decades?
IHL has expanded considerably as the character and impact of war have evolved over the years. Notably, in 1977, two Additional Protocols were adopted. Additional Protocol I strengthened the protection of victims of international armed conflicts, while Additional Protocol II did the same for non-international armed conflicts, including civil wars.
The 1980s and 90s saw other international treaties come into force, banning certain conventional weapons, such as antipersonnel landmines, as well as chemical weapons. Just last year, more than 100 States signed up to an historic treaty against the use of cluster munitions.
Finally, there has been significant progress in terms of investigating and punishing war crimes, thanks to the work of the international tribunals for the former Yugoslavia and Rwanda, and the establishment of the International Criminal Court.
To me, these are all signs that international humanitarian law is fully capable of keeping up with the times.
What else should be done to develop IHL and what are some other current challenges you observe with respect to the law and the realities on the ground?
There is still room to strengthen and clarify the existing legal framework. For e xample, the ICRC recently published interpretive guidance on the concept of " direct participation in hostilities " . Neither the Geneva Conventions nor the Additional Protocols spell out what this actually means. Yet this is crucial because, under the law, civilians lose their protection against attack when and for as long as they directly participate in hostilities. If there is no shared understanding of what this means, there is a risk that civilians will fall victim to erroneous or arbitrary attacks.
Let me give you an example. Imagine a civilian truck driver is delivering ammunition to a shooting position on a front line. This would almost certainly be regarded as taking a direct part in hostilities. But what if that same driver transports ammunition from a factory to a port far away from the conflict zone? In our view, while he is still s upporting the war effort, this driver is not directly participating in the fighting and is therefore protected against attack.
These questions are all the more pertinent when you consider that traditional military functions are increasingly being outsourced to private contractors, and that civilians regularly support non-State armed groups through a range of activities, from military and logistical support to feeding and sheltering fighters.
There are other challenges concerning non-international armed conflicts, where some key humanitarian problems are not covered by existing IHL treaties. Customary IHL rules have filled some of these gaps but there are areas where the law could be further clarified and developed. For example, there is currently no detailed framework establishing procedural safeguards for people interned for security reasons in relation to non-international armed conflicts. Such safeguards are necessary to ensure, for example, that people are only held if a valid reason exists.
The so-called "global war on terror" has led to a lot of debate about IHL. What do the Geneva Conventions and the Additional Protocols actually say about the phenomenon of terrorism?
I think it's fair to say that what happened on 11 September 2001 and its aftermath put IHL to one of its toughest tests so far.
Fundamentally, there were differing opinions as to whether the " war on terror " actually amounted to an armed conflict. Similarly, there was discussion as to whether suspected terrorists detained within the context of this fight were covered by IHL.
I personally believe that the Conventions and the Additional Protocols do hold many relevant answers here. After all, terrorism is not a new phenomenon. Both the Fourth Geneva Convention and the Additional Protocols specifically prohibit acts of terrorism.
In terms of addressing threats posed by terrorism, I also believe that the Conventions do a good job of balancing State security concerns and respect for human dignity.
But IHL must only be applied to situations were the fight against terrorism actually amounts to a war. Terrorist acts committed outside of armed conflict must be addressed by means of domestic or international law enforcement, rather than by applying IHL. Such means include intelligence gathering, police and judicial cooperation, the freezing of assets or diplomatic and economic pressure on States accused of aiding suspected terrorists. IHL shouldn't be made to apply to situations for which it was not designed.
Still, the debate sparked off by the events of 11 September has revealed some possible gaps or shortcomings in IHL. For example, concerning the detention of terror suspects in situations of armed conflict, certain aspects of Common Article 3 are vague and need further clarification. For instance, when it comes to conditions of detention, the law should go beyond the basic notion of humane treatment and be more specific. Similarly, no detailed guidance exists on the procedural safeguards (review of grounds for detention) to which people detained for security reasons are entitled.
As you pointed out earlier, the Second World War prompted the ICRC to renew its push for the Conventions to be extended to protect civilians. Why was this significant and how have things changed since then?
Back in 1949, everyone was still reeling from World War II – a global armed conflict of unparalleled proportions. It involved the majority of the world's nations and the mobilization of over 100 million military personnel. More than 70 million people – mostly civilians – were killed, making it the deadliest conflict in human history.
The Fourth Geneva Convention and, later, the Additional Protocols, were major breakthroughs in terms of offering protection to civilians, but the sad reality is that they continue to bear the brunt of war today.
One of the main changes we've seen since 1949 is the increasingly asymmetric nature of warfare. By this, I mean situations where the training and weaponry of one side are far superior to those of the other. Typically, this happens when well-equipped and trained armed forces confront rebel groups. These differences have, in some cases, been used by the weaker side to explain why it has not respected fundamental rules of IHL. This can easily result in a vicious circle where either party justifies its failure to respect IHL by pointing the finger at their enemy.
Another noteworthy development is that military operations have increasingly taken place in densely populated urban areas, often using heavy or highly explosive weapons. From Grozny to Mogadishu and from Baghdad to Gaza City, armed conflict has had a devastating impact on the civilian population.
What do the people most affected by war think about issues like the protection of civilians or acceptable behaviour in warfare? Do the people you seek to help believe that the Geneva Conventions are effective?
The ICRC recently commissioned an opinion poll in eight conflict- and violence-affected nations, which asked people about their views on the conduct of hostilities and other related issues.
The vast majority of people support the core principles of IHL and the idea that even wars should have limits, but the research also shows that, in reality, far fewer are aware that the rules exist. Meanwhile, some doubt that the law has a real impact on the ground.
This, coupled with the fact that civilians keep on being killed, separated from their loved ones and forced to flee their homes in conflicts across the globe, indicates that what we really need is better compliance with the law.