On August 12, 1949, an international conference in Geneva finalized the text of four conventions for the protection of victims of armed conflict. The Geneva Conventions of 1949 were by no means the first international treaties concerning the legal regulation of armed conflict. International agreements for the protection of wounded soldiers had been in existence since the original Geneva Convention of 1864. Since then, additional conventions had been signed giving protection to prisoners of war and establishing rules for the conduct of hostilities. But, coming at the end of the Second World War with its well-publicised atrocities, the 1949 Conventions provided a definitive codification of the laws of war as they were then understood, and extended the reach of the law into new areas that have been at the centre of its subsequent development. For that reason, the Geneva Conventions of 1949 have retained their place as the cornerstone of the law of armed conflict (or international humanitarian law, as it is now increasingly known). It is a sign of their unique place in international law that, according to the International Committee of the Red Cross (ICRC), they are the only international laws to have obtained universal adherence—every country in the world is a party to them.
The 60th anniversary of the Geneva Conventions provides an opportunity to assess their status and continued relevance after a period when the nature of armed conflict is widely perceived to have changed. The kinds of conflicts that dominated the world’s attention at the time the Conventions were drafted were fought largely between the uniformed armed forces of nation states; irregular warfare was certainly recognised by the drafters, but seen primarily in terms of partisan warfare against the occupation forces of another country. Since then, such conflicts have declined in frequency (although the Iran-Iraq war of the 1980s shows that they still take place, and can still exact a terrible toll). More often, the armed conflicts that attract international attention today are so-called asymmetrical conflicts, in which the armed forces of a nation state confront irregular forces who hide among civilians, or internal conflicts between rebel groups and national forces. Armed campaigns against terrorist groups such as al-Qaeda exemplify these developments in an extreme form.
Certainly, much of the Geneva Conventions concerns the protection of “combatants”—those whom the law recognises as legitimate participants in an armed conflict. The first three Conventions set out a series of rules governing the treatment of wounded members of the armed forces on land and sea, and a detailed set of protections for prisoners of war. But some of the most notable innovations of the 1949 Conventions anticipate some of the concerns that have come to dominate contemporary discussion of the humanitarian impact of warfare. The fourth Convention contains a set of protections for civilians, in occupied territory or otherwise in the hands of a party to the conflict. And Common Article 3 (so called because it appears as the third article in all four Conventions) prescribes a series of essential protections for those caught up in internal (or “non-international”) conflicts who are not taking an active part in hostilities.
In the years since 1949, international humanitarian law has continued to develop around the core of the Geneva Conventions. The protection of civilians and the regulation of internal conflicts have been the focus of much of this development. In particular, the first Additional Protocol added in 1977 greatly extended the protection of civilians against harm in international armed conflicts, codifying rules on distinction between civilian and military targets, and forbidding attacks that could be expected to cause disproportionate harm to civilians. The second Additional Protocol applied many of the same rules to some internal conflicts—those in which an insurgent group has reached a sufficient stage of organisation and control of territory to be able to comply with the rules in a predictable way. In addition, a number of specific conventions have placed limits on the weapons that combatant forces can use, most recently restricting the use of landmines and cluster munitions. And alongside these written laws there has been increasing recognition of customary law—rules that are not codified, but which states nevertheless follow out of a sense of legal obligation—which is especially important in non-international conflicts, where treaty law remains limited.
Another important feature of the Conventions was their introduction of the notion of “grave breaches”—defining the violation of certain key provisions of the Conventions as war crimes that could be punished by any country in the world, and imposing an obligation on parties to the Conventions to prosecute or extradite suspects. This feature of the Conventions, as Judge Theodor Meron observed in a recent talk in London, marked a major step towards recognising individuals rather than states as the ultimate subjects of international law. War crimes tribunals had already been held for German and Japanese suspects at the end of World War II, but these took the form of the victorious powers sitting in judgement on the defeated. More recently, a new movement of international justice has grown up that takes up the promise of the “grave breaches” provision (as well as the Genocide Convention of 1948) by creating truly international courts—first through the UN-created tribunals for the former Yugoslavia and Rwanda, and then through the formation of a permanent International Criminal Court. Through their case law, these courts in turn have greatly helped the development of customary international humanitarian law.
Nevertheless, recent years have seen a growing debate over whether the Geneva Conventions need to be updated in light of the changing nature of conflict. In a statement released to coincide with the 60th anniversary of the Conventions, the International Committee of the Red Cross recognised these concerns. Although stating that “there is no doubt that existing rules of IHL remain relevant and that achieving improved compliance with the law continues to be the main challenge,” the ICRC’s president Jakob Kellenberger also said that “certain key concepts in today’s armed conflicts have to be clarified and some as yet insufficient rules have to be strengthened.” He added that “it would also be desirable to further develop certain aspects of the law, particularly those related to non-international armed conflicts.”
Two issues have become particularly troublesome in recent conflicts involving irregular non-state armed groups, especially those that fight through the use of terrorism rather than more traditional military campaigns. The first is to determine when such fighters can be the target of military attack. According to a provision of both Additional Protocols that is also recognised as customary law, civilians can only be targeted when they are taking a direct part in hostilities. (This is in contrast to formal combatants, who can be targeted at any time when military necessity demands, except when they are hors de combat.) But it is far from clear how this criterion should be interpreted, and the ICRC has recently produced guidelines that have already been the focus of much discussion.
The second issue concerns the detention of those suspected of fighting for such groups. The Geneva Conventions provide a detailed scheme for the detention of prisoners of war in international armed conflict, and civilians in occupied territory. But there is nothing in the law to specify rules and procedures for the detention of suspected enemy fighters in armed conflicts involving non-state groups. This question has been at the centre of debates about how prisoners captured by the United States in Afghanistan and elsewhere in its “war on terror” should be regarded.
One effect of the increasing attention paid to conflicts against insurgents and terrorists has been to raise the question of how the laws of armed conflict relate to human rights. Already the Geneva Conventions reflect the influence of a human rights sensibility—most notably in Common Article 3, which imposes obligations on states during internal conflicts which are binding even when insurgents do not observe the law themselves. A possible direction of future legal development could involve the clarification of how human rights against prolonged arbitrary detention and arbitrary deprivation of life should be understood in the context of military action, both domestically and overseas.
Undoubtedly one of the most striking developments in international humanitarian law since the drafting of the Geneva Conventions in 1949 has been the growing assimilation of international and non-international conflicts. Building on the foundation of Common Article 3, a whole structure of legal thought has grown up that increasingly treats all armed conflicts as subject to the similar rules. This tendency reached its highest development in a recent ICRC study of customary IHL, in which all but 13 of the 159 rules applicable in international armed conflict were also found to be applicable in non-international conflict.
This development clearly represents an enormous advance in humanitarian protection, given the prevalence of civil wars and other campaigns against non-state groups in today’s world, even if the enforcement of the law in such conflicts remains difficult. But at the same time, there may be grounds for believing that the pendulum has swung too far. The drive to promote protection for the victims of all conflicts should not obscure the essential ways in which non-international conflicts remain distinct. One of these concerns the aims of the fighting. In inter-state wars it is prohibited to annex any territory seized or import your own political system, and IHL recognises a strict separation between military and political targets. But it is precisely the aim of insurgent groups to seize political power and the structures of domestic authority—so rules that forbid attacks on political targets in domestic conflicts do not offer an equal playing field to such groups. This threatens to forfeit the impartiality between parties to a conflict that has always been an essential attribute of the laws of armed conflict.
Similarly, there is an increasing tendency to treat non-state groups as analogous to regular armed forces for the purposes of targeting. The ICRC’s recent guidelines on the concept of direct participation in hostilities suggested that fighters who perform a “continuous combat function” for armed groups should no longer be regarded as civilians, but subject to attack on the same basis as combatants in an armed conflict. The purpose of the proposal is to avoid a situation where fighters can benefit from a “revolving door”—fighting on a regular basis, but benefiting from civilian protection when they are not actually fighting. At the same time, it appears anomalous for IHL to create a category of fighters who are deprived from protection from attack by virtue of their status, yet who are not themselves protected from prosecution for their military acts if they are captured.
In these ways we can see how the development and interpretation of the law in the circumstances of contemporary conflict can give rise to new complications. The debate over how the principles of the Geneva Conventions should be applied in such circumstances is far from over. But on their sixtieth anniversary, the framework of the Geneva Conventions of 1949 continues to set the terms for discussion of the legal regulation of armed conflict.
Related Links:
The Geneva Conventions at 60: learning from the past to better face the future
International Committee of the Red Cross
August 6, 2009
The Geneva Conventions are 60: Quiz - How Well Do You Know Them?
TRIAL (Track Impunity Always)
The Geneva Conventions at 60
In this photo released by the International Committee of the Red Cross, ICRC President Jakob Kellenberger, center, pauses after crossing on foot from one side of the Litani River to the other following Israeli bombardment, on his way to visit the port city of Tyre, southern Lebanon, Tuesday, Aug. 8, 2006. Kellenberger visited the area, which has been cut off from the rest of the country, to assess the organisation's humanitarian efforts in southern Lebanon. (AP Photo/Marko Kokic/ICRC)
On August 12, 1949, an international conference in Geneva finalized the text of four conventions for the protection of victims of armed conflict. The Geneva Conventions of 1949 were by no means the first international treaties concerning the legal regulation of armed conflict. International agreements for the protection of wounded soldiers had been in existence since the original Geneva Convention of 1864. Since then, additional conventions had been signed giving protection to prisoners of war and establishing rules for the conduct of hostilities. But, coming at the end of the Second World War with its well-publicised atrocities, the 1949 Conventions provided a definitive codification of the laws of war as they were then understood, and extended the reach of the law into new areas that have been at the centre of its subsequent development. For that reason, the Geneva Conventions of 1949 have retained their place as the cornerstone of the law of armed conflict (or international humanitarian law, as it is now increasingly known). It is a sign of their unique place in international law that, according to the International Committee of the Red Cross (ICRC), they are the only international laws to have obtained universal adherence—every country in the world is a party to them.
The 60th anniversary of the Geneva Conventions provides an opportunity to assess their status and continued relevance after a period when the nature of armed conflict is widely perceived to have changed. The kinds of conflicts that dominated the world’s attention at the time the Conventions were drafted were fought largely between the uniformed armed forces of nation states; irregular warfare was certainly recognised by the drafters, but seen primarily in terms of partisan warfare against the occupation forces of another country. Since then, such conflicts have declined in frequency (although the Iran-Iraq war of the 1980s shows that they still take place, and can still exact a terrible toll). More often, the armed conflicts that attract international attention today are so-called asymmetrical conflicts, in which the armed forces of a nation state confront irregular forces who hide among civilians, or internal conflicts between rebel groups and national forces. Armed campaigns against terrorist groups such as al-Qaeda exemplify these developments in an extreme form.
Certainly, much of the Geneva Conventions concerns the protection of “combatants”—those whom the law recognises as legitimate participants in an armed conflict. The first three Conventions set out a series of rules governing the treatment of wounded members of the armed forces on land and sea, and a detailed set of protections for prisoners of war. But some of the most notable innovations of the 1949 Conventions anticipate some of the concerns that have come to dominate contemporary discussion of the humanitarian impact of warfare. The fourth Convention contains a set of protections for civilians, in occupied territory or otherwise in the hands of a party to the conflict. And Common Article 3 (so called because it appears as the third article in all four Conventions) prescribes a series of essential protections for those caught up in internal (or “non-international”) conflicts who are not taking an active part in hostilities.
In the years since 1949, international humanitarian law has continued to develop around the core of the Geneva Conventions. The protection of civilians and the regulation of internal conflicts have been the focus of much of this development. In particular, the first Additional Protocol added in 1977 greatly extended the protection of civilians against harm in international armed conflicts, codifying rules on distinction between civilian and military targets, and forbidding attacks that could be expected to cause disproportionate harm to civilians. The second Additional Protocol applied many of the same rules to some internal conflicts—those in which an insurgent group has reached a sufficient stage of organisation and control of territory to be able to comply with the rules in a predictable way. In addition, a number of specific conventions have placed limits on the weapons that combatant forces can use, most recently restricting the use of landmines and cluster munitions. And alongside these written laws there has been increasing recognition of customary law—rules that are not codified, but which states nevertheless follow out of a sense of legal obligation—which is especially important in non-international conflicts, where treaty law remains limited.
Another important feature of the Conventions was their introduction of the notion of “grave breaches”—defining the violation of certain key provisions of the Conventions as war crimes that could be punished by any country in the world, and imposing an obligation on parties to the Conventions to prosecute or extradite suspects. This feature of the Conventions, as Judge Theodor Meron observed in a recent talk in London, marked a major step towards recognising individuals rather than states as the ultimate subjects of international law. War crimes tribunals had already been held for German and Japanese suspects at the end of World War II, but these took the form of the victorious powers sitting in judgement on the defeated. More recently, a new movement of international justice has grown up that takes up the promise of the “grave breaches” provision (as well as the Genocide Convention of 1948) by creating truly international courts—first through the UN-created tribunals for the former Yugoslavia and Rwanda, and then through the formation of a permanent International Criminal Court. Through their case law, these courts in turn have greatly helped the development of customary international humanitarian law.
Nevertheless, recent years have seen a growing debate over whether the Geneva Conventions need to be updated in light of the changing nature of conflict. In a statement released to coincide with the 60th anniversary of the Conventions, the International Committee of the Red Cross recognised these concerns. Although stating that “there is no doubt that existing rules of IHL remain relevant and that achieving improved compliance with the law continues to be the main challenge,” the ICRC’s president Jakob Kellenberger also said that “certain key concepts in today’s armed conflicts have to be clarified and some as yet insufficient rules have to be strengthened.” He added that “it would also be desirable to further develop certain aspects of the law, particularly those related to non-international armed conflicts.”
Two issues have become particularly troublesome in recent conflicts involving irregular non-state armed groups, especially those that fight through the use of terrorism rather than more traditional military campaigns. The first is to determine when such fighters can be the target of military attack. According to a provision of both Additional Protocols that is also recognised as customary law, civilians can only be targeted when they are taking a direct part in hostilities. (This is in contrast to formal combatants, who can be targeted at any time when military necessity demands, except when they are hors de combat.) But it is far from clear how this criterion should be interpreted, and the ICRC has recently produced guidelines that have already been the focus of much discussion.
The second issue concerns the detention of those suspected of fighting for such groups. The Geneva Conventions provide a detailed scheme for the detention of prisoners of war in international armed conflict, and civilians in occupied territory. But there is nothing in the law to specify rules and procedures for the detention of suspected enemy fighters in armed conflicts involving non-state groups. This question has been at the centre of debates about how prisoners captured by the United States in Afghanistan and elsewhere in its “war on terror” should be regarded.
One effect of the increasing attention paid to conflicts against insurgents and terrorists has been to raise the question of how the laws of armed conflict relate to human rights. Already the Geneva Conventions reflect the influence of a human rights sensibility—most notably in Common Article 3, which imposes obligations on states during internal conflicts which are binding even when insurgents do not observe the law themselves. A possible direction of future legal development could involve the clarification of how human rights against prolonged arbitrary detention and arbitrary deprivation of life should be understood in the context of military action, both domestically and overseas.
Undoubtedly one of the most striking developments in international humanitarian law since the drafting of the Geneva Conventions in 1949 has been the growing assimilation of international and non-international conflicts. Building on the foundation of Common Article 3, a whole structure of legal thought has grown up that increasingly treats all armed conflicts as subject to the similar rules. This tendency reached its highest development in a recent ICRC study of customary IHL, in which all but 13 of the 159 rules applicable in international armed conflict were also found to be applicable in non-international conflict.
This development clearly represents an enormous advance in humanitarian protection, given the prevalence of civil wars and other campaigns against non-state groups in today’s world, even if the enforcement of the law in such conflicts remains difficult. But at the same time, there may be grounds for believing that the pendulum has swung too far. The drive to promote protection for the victims of all conflicts should not obscure the essential ways in which non-international conflicts remain distinct. One of these concerns the aims of the fighting. In inter-state wars it is prohibited to annex any territory seized or import your own political system, and IHL recognises a strict separation between military and political targets. But it is precisely the aim of insurgent groups to seize political power and the structures of domestic authority—so rules that forbid attacks on political targets in domestic conflicts do not offer an equal playing field to such groups. This threatens to forfeit the impartiality between parties to a conflict that has always been an essential attribute of the laws of armed conflict.
Similarly, there is an increasing tendency to treat non-state groups as analogous to regular armed forces for the purposes of targeting. The ICRC’s recent guidelines on the concept of direct participation in hostilities suggested that fighters who perform a “continuous combat function” for armed groups should no longer be regarded as civilians, but subject to attack on the same basis as combatants in an armed conflict. The purpose of the proposal is to avoid a situation where fighters can benefit from a “revolving door”—fighting on a regular basis, but benefiting from civilian protection when they are not actually fighting. At the same time, it appears anomalous for IHL to create a category of fighters who are deprived from protection from attack by virtue of their status, yet who are not themselves protected from prosecution for their military acts if they are captured.
In these ways we can see how the development and interpretation of the law in the circumstances of contemporary conflict can give rise to new complications. The debate over how the principles of the Geneva Conventions should be applied in such circumstances is far from over. But on their sixtieth anniversary, the framework of the Geneva Conventions of 1949 continues to set the terms for discussion of the legal regulation of armed conflict.
Related Links:
The Geneva Conventions at 60: learning from the past to better face the future
International Committee of the Red Cross
August 6, 2009
The Geneva Conventions are 60: Quiz - How Well Do You Know Them?
TRIAL (Track Impunity Always)
Related posts: