On August 12, 2016 the Geneva Conventions and their Additional Protocols turned 67 and their relevance—despite violations or claims otherwise—remain as important as ever, if not more so.
Our previous post looked at the development of IHL over the last six decades and the role of the ICRC in its origins. In this post, we examine the current challenges facing the rules of war and on the ICRC's ongoing efforts to ensure that the Conventions continue to stand the test of time.
Let us 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.
Knut Dörmann, Head of the ICRC's Legal Division
Adapting to Changing Times
Some critics have said the Conventions were designed in a different time and no longer achieve their intended goals. While it is true that contemporary wars often bear little semblance of the ones that inspired the origins of the Geneva Conventions and even the ICRC itself, 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 three Additional Protocols and by important developments in customary international humanitarian law. These updates, which further strengthened the protection of civilians and combatants alike, especially in non-international armed conflicts, have shown that IHL is not only flexible in its fundamental framework, but also capable of 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. As ICRC’s Helen Durham argues in a Guardian op-ed, the atrocities in conflict mean we need the Geneva conventions more than ever. If the existing rules were simply respected and complied with, much of the suffering caused by current armed conflicts could be avoided.
However, there is still room to strengthen and clarify the existing legal framework. In the 1950s, the ICRC published a set of commentaries on the Geneva Conventions, giving practical guidance on their meaning and implementation. But much has changed in that time. In order to account for new developments in law and practice the ICRC has recently commissioned a new set of commentaries, written and reviewed by first-rate scholars. The first installment, the updated Commentary on the First Convention, was recently published on the ICRC’s official website. When completed, these updated Commentaries will give state and non-state actors, as well as interested individuals, an understanding of the law as it is widely interpreted today, so that it is applied effectively in modern armed conflicts.
Another example of expanded interpretation in light of modern battlefield realities happened in 2009 when the ICRC 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 except to clarify that civilians are immune from direct attack “unless and for such time” as they directly participate. Yet an accurate understanding of 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.
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 the ICRC’s view, while he is still supporting the war effort, this driver is not directly participating in the fighting and is therefore protected against attack.
Most recently, the 32nd International Conference brought together representatives from 169 Governments, 185 National Red Cross and Red Crescent Societies, the International Federation of Red Cross and Red Crescent Societies (IFRC), the ICRC and more than 100 observers in an effort to find a common vision for future humanitarian action. Outcomes included resolutions on both strengthening IHL for protecting people deprived of their liberty as well as strengthening compliance to the law.
In addition, the ICRC works with states and Non-State Armed Groups to promote IHL.
Changing Contexts, Challenging Questions
Questions around interpretation of the law 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 explicitly 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 detained for security reasons in relation to non-international armed conflicts. Such safeguards are necessary to ensure, for example, that people are only held on lawful bases, and under clearly defined conditions.
The attacks and aftermath of September 11, 2001, sparked a debate around IHL which continues to this day. Many legal experts debated whether the "war on terror" actually amounted to an “armed conflict” as contemplated by IHL. Similarly, there was discussion as to whether fighters detained within the context of this conflict were covered by IHL.
Again, the Conventions and the Additional Protocols do hold many relevant answers here. After all, conflicts against “terror tactics” are not new phenomena. Both the Geneva Conventions and the Additional Protocols specifically prohibit acts that many regard as acts of terror. In IHL terms, these acts might about amount to violations of IHL, “war crimes,” or even “grave breaches” of IHL.
But legally speaking, IHL only applies to situations where a conflict actually amounts to an “armed conflict”—not all acts of violence qualify. Acts of terror committed outside of armed conflict could be classified as criminal acts that must be addressed by means of domestic or international law enforcement, rather than by applying IHL. Such means might include intelligence gathering, police and judicial cooperation, the freezing of assets or diplomatic and economic pressure on States accused of aiding such activity. IHL shouldn't be made to apply to situations for which it was not designed.
Still, the debate revealed some possible gaps in IHL. For example, concerning the detention of fighters representing a non-state armed group in situations of armed conflict, certain aspects of Common Article 3 are vague and could benefit from further clarification. For instance, when it comes to conditions of detention, the law could standardize greater protections that reflect the basic notion of humane treatment such that specific standards apply universally rather than only as determined by this or that detaining power inconsistently. Similarly, no detailed guidance exists on the procedural safeguards (review of grounds for detention) to which people detained for security reasons are entitled.
The Changing Nature of Warfare
In 1949, the world 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. An estimated 60 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 reality is that they continue to suffer extensively as a result of war.
One of the main changes to warfare since 1949 is the increasingly asymmetric nature of warfare. The training and weaponry of one side are often 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 cycle where either party justifies its failure to respect IHL by pointing the finger at their enemy.
In addition, military operations are increasingly taking place in densely populated urban areas, often using heavy or highly explosive weapons. From Aleppo to Mogadishu and from Baghdad to Gaza City, armed conflict has had a devastating impact on the civilian population.
While the challenges are many and the context is constantly evolving, the ICRC remains committed to mandate to promote IHL, advocate that it be strengthened, and urge states to keep it up to date, as it has done for the last 150 years.
As Durham said during the release of the update Commentaries, “This is a living body of law, which, far from being eroded, is playing a vital role.”
“Even amid the horrific violence in Syria for example, the Geneva Conventions enable us to prevail on the warring parties to let us cross the front lines, delivering medical care and relief supplies to the millions of people trapped in the conflict. Of course it is far from enough and remains extremely difficult, but without the Geneva Conventions, none of this would be possible.”
The ICRC strongly believes that coherent interpretation of the law enhances respect for it.
”Yes, there is a big gap between the law on paper and its implementation,” Durham continues, “But that can never be an argument for saying the Conventions are no longer relevant despite the key role they are fulfilling. The Geneva Conventions are not just some historical documents born of another time, they are of burning relevance and importance today – and we need to ensure that their enormous humanitarian potential is recognized and acted upon by all.”
- Q&A with Knut Dörmann, Head of the ICRC's Legal Division
- International Humanitarian Law: Answers to Your Questions, ICRC