From Geneva to Sri Lanka
By Georg-Sebastian Holzer for ISN
One hundred and fifty years ago, 38,000 soldiers and civilians died on the battlefield of Solferino. The Swiss civilian Henry Dunant witnessed the battle in person. Motivated by the horrific suffering of wounded soldiers he came up with the revolutionary idea to service the wounded without regard to their side in the conflict.
He initiated a campaign that would eventually lead to the foundation of the International Red Cross Movement and subsequently to the four Geneva Conventions, signed on 12 August 1949.
Dunant’s idea was not only an expression of human compassion but also of military rational. In the public arena, his message of mercy for the victims of war was welcomed with open arms. Military men and politicians, in turn, were convinced that violence against non-combatants was unnecessary and even counterproductive in warfare.
No doubt, contemporary conflicts are very different from the battle of Solferino. Warring parties at the time were primarily armies attacking each other. The main parties to the conflicts were states. Today, the bulk of all conflicts are of an intra-state nature, often between state and non-state actors.
In 2008, the external pageHeidelberg Institute for International Conflict Research counted 39 conflicts of high intensity in the world, of which nine constituted wars, according to their definition. Only one of them, the short war between Russia and Georgia last summer, was fought out between two states, constituting the first inter-state war since the US-Iraq war in 2003.
In modern wars, the prime targets of attack are civilians. Recent conflicts in Gaza, Sri Lanka or Darfur mark no isolated cases, but rather a new, escalating form of warfare.
In contrast, the Geneva Conventions relate almost exclusively to inter-state rather than civil wars. Sixty years after the signing, the Conventions have a unique standing, as they are universally ratified and recognized. Today, 194 states have signed the Geneva Conventions, two more than the membership of the UN.
Certainly this fact looses some of its shine bearing in mind the blatant violations against International Humanitarian Law (IHL) in most of today’s conflicts.
Growing ambiguity
The Geneva Conventions do not provide rules for warfare but more specifically and practically protect particular classes of people. They deal with the treatment of wounded members of armed forces in the field and at sea, the treatment of prisoners of war and the protection of civilians.
At the center of the Convention’s provisions stands the concept of distinguishing between combatants and non-combatants in armed conflicts. But how should one uphold the principle of distinction if Taliban fighters in Afghanistan resort to guerrilla tactics which, by nature involve intermingling with the civilian population? Civilians lose their protection when they directly take part in hostilities. There is a vast grey zone between giving food to a rebel group and killing a soldier.
In fact, the growing lack of clarity about the principle of distinction is currently a major topic of discussion in International Humanitarian Law. The International Committee of the Red Cross (ICRC), which is the official protecting power of the Geneva Conventions, has just put forward external pageguidance on what it means to take part in hostilities, according to their understanding.
Another core mandate of the ICRC is the dissemination of IHL. This is increasingly challenging, as many of the actors are not regular armies with a clear chain of command but non-state groups. Theexternal pageICRC just published a poll they conducted in nine war-torn countries showing that less than half of the people actually knew that International Humanitarian Law existed at all.
However, this finding does not mean that rules in wars are generally rejected. In fact, the concept of restraining one’s own forces does not only apply to armies of states but also to non-state groups.
The Taliban code of conduct is a prominent case in point. In its work, the ICRC actually builds on such existing codes of conducts to disseminate the basic principles of the IHL. Today, external pageGeneva Call, an international humanitarian organization, is particularly dedicated in engaging armed non-state actors to respect and to adhere to humanitarian norms.
Moreover, there is an increasing debate on how private military and security companies (PMSCs) relate to humanitarian norms. The external pageMontreux Document, signed by 17 states in 2008, is the first international document to describe international law as it applies to the activities of PMSCs whenever they are present in the context of armed conflict.
IHL dynamics
International Humanitarian Law in itself has not been static since the signing of the Geneva Conventions 60 years ago. In 1977, against the backdrop of guerrilla warfare and new forms of warfare such as the Biafra-conflict in Nigeria or the Vietnam War, two additional protocols were approved, which address international and civil wars more ambitiously than in the 1949 Conventions.
As technology changes took hold in warfare, new conventions and protocols on new weaponry were passed. Most recently, the Cluster Monition Treaty was passed in December 2008. Others include the international treaty to ban landmines and the Chemical Weapons Treaty, both passed in 1997.
However, the ratification of these conventions and treaties are implemented particularly slowly by the states that mostly engage in warfare.
At the same time, the Conventions have already, in part, adapted to the new developments in warfare through the little-noticed process of customary law. This is both the case with the judicature of international tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) on the one hand and national courts on the other.
Legal challenges
Two specific legal challenges have arisen in the context of the detention of terrorist suspects by the US.
First, it is not self-evident that this conflict is an international war between states. From a legal point of view, the US troops are in Afghanistan external pageat the invitation of the Afghan government. Hence, the conflict has not been of international character since the election of the Afghan government. As the US did not ratify the additional protocols from 1977, the Bush Administration refused the application of the Geneva Conventions.
The second legal challenge refers to the time before the elections in late 2001 when the conflict was still viewed as an international one. At that time, it was not clear whether all those captured terrorist suspects met the conditions to apply the Geneva Conventions, which would have given them the status of prisoners of war and thereby special protection.
The US Supreme Court helped to overcome this legal ambiguity in the external pageHamdan v Rumsfeld case in June 2006 by usefully interpreting common Article 3 of the Conventions, which addresses “armed conflicts not of an international character,” to apply not only to civil wars but also to the struggle between al-Qaida and the US.
With this interpretation, the Supreme Court called for judicial guarantees for detainees held in Guantanamo and other detention facilities.
Perverting humanitarianism
Looking at the important process of common law as well as the jurisdiction of international tribunals, one could ask if there is reason for enthusiasm. Hardly.
Henry Dunant’s reasoning to distinguish between combatants and non-combatants seems to lose its persuasive power vis-à-vis military men and politicians in many of today’s conflicts, which seem to pervert basic humanitarian norms.
A recent point in case is Sri Lanka, where 7,000 people died at the beginning of this year in a war that was already decided. The LTTE rebels were hiding amid their civil population they held hostage and the Sri Lankan army attacked them indiscriminately.
In the end, it is not people searching for a loophole in the law that disables the Geneva Conventions. It is people that reject the principle values of distinction and proportionality.