By Anthony Dworkin

The Geneva Conventions of 1949 and the two Additional Protocols of 1977 are the definitive written sources of international humanitarian law. They codify the standards that the countries of the world have set for humane conduct in war – and represent an assertion that even in wartime there are limits to what is acceptable behaviour. The Conventions are a monument to global revulsion against the worst atrocities of the twentieth century – but they are also, in some people’s eyes, showing their age.

Like all international treaties, the Geneva Conventions and the Additional Protocols were products of their times. They reflect the views of their period about the nature of war, and the concerns and alignments of contemporary international politics. Since the laws of war were last updated in 1977, there have been significant changes in the nature of armed conflict. Most recently, there has been the U.S. campaign against global terrorism, which has overturned many of the assumptions on which international humanitarian law has traditionally rested.

The government of Switzerland has now launched an initiative to review the way that international humanitarian law applies to armed conflict in today’s world. Between 27 and 29 January 2003, an informal meeting of experts from the governments of several countries, the International Committee of the Red Cross, and a number of scholars was held at Harvard University, aiming to set an agenda for further discussion and research. As this process gets underway, the Crimes of War Project has asked two leading experts on the laws of war to debate whether the Geneva Conventions need to be updated.

In the aftermath of the Second World War, the legislators who drew up the four Geneva Conventions of 1949 were principally concerned with wars between states (though in Common Article 3, they set important minimum standards for internal armed conflicts). The bulk of the Conventions relate to the treatment of enemy forces who are wounded or taken prisoner, and of civilians who fall into the hands of the enemy or are living in occupied territory.

When government delegates began the lengthy negotiating process that led to the Additional Protocols in the 1970’s, they aimed to fill the gaps left by the Conventions, and to reflect the growing attention being paid to civil wars and wars of national liberation. The first Additional Protocol includes a series of measures to limit the harm done to civilians during the course of fighting between states: for instance, it seeks to restrict attacks to definable military objectives, and says the incidental damage to civilians must not be excessive in relation to the military advantage expected. The second Additional Protocol is addressed to armed conflict occurring within the territory of a member state. It seeks to extend to them many of the principles already established for inter-state wars: against attacks on civilian targets, attempts to terrorize a civilian population, collective punishments or attacks on medical personnel, and in favour of the humane treatment of captives.

According to Professor Michael Schmitt of the George Marshall Center in Germany, it is now time to review the workings of international humanitiarian law again. In his words, "the Conventions and Protocols contain significant fault lines" that limit their effectiveness in restraining the excesses of contemporary war. At the heart of Schmitt’s critique is the argument that the shifting nature of armed conflict means that the Geneva Conventions cannot address much of the organized violence in today’s world – and that where they do address it, some of their own inherent weaknesses are particularly exposed.

The United States may talk of a "war against terrorism", but Schmitt argues that the U.S. campaign against al-Qaeda does not fit comfortably into the framework of the Geneva Conventions. The United States is justified in using military force against the terrorist threat, he believes, but as the law stands there are no solid criteria for determining how that force should be exercised, or how long suspected terrorists detained during the course of operations should be held. In conflicts like this, Schmitt concludes, "the lines between international armed conflict, internal armed conflict, terrorism and criminality are becoming increasingly blurred."

Schmitt also argues that the key principle of "proportionality" needs further definition. This is the concept – central to the first Additional Protocol – that requires attackers to balance the concrete and direct military advantage of an attack against the risk of harm to civilians: an especially tricky judgement call, when the line between military forces and civilian groups is increasingly blurred.

Schmitt adds that the notion of a military objective itself needs to be made more precise. Decisions about what constitutes a legitimate military objective are particularly difficult in many contemporary conflicts, where the objective is often not the complete military defeat of an enemy state, but rather the attempt to force a particular regime to comply with certain specified requirements. Schmitt refers to the example of NATO’s bombing campaign against Serbia in 1999. During this campaign, there was particular controversy over NATO’s strike against the Radio-Television of Serbia studio; should this have been considered a military objective?

Professor Steven Ratner of the University of Texas would agree with some of these observations, but he argues that the way to address them is not by coming up with a new document or treaty. Regarding the war on terrorism, Ratner argues that although the Geneva Conventions may not apply, the war is governed by customary international law – whose principles are "derived from established custom, from the principles of humanity and from the dictates of public conscience," in the words of Additional Protocol I. In other words, the United States is bound to observe basic principles such as not targeting civilians, not harming enemy fighters who are hors de combat, and not using weapons that cause unnecessary suffering.

Of course, Ratner acknowledges, there are questions raised by the military campaign against al-Qaeda that customary law cannot resolve – but he is sceptical that such ambiguities can be resolved by drawing up another treaty or protocol. He warns of the danger that bringing terrorist groups like al-Qaeda inside the protection of international humanitarian law would give their cause legitimacy. Terrorists should receive no more than the protection of "the fundamental principles of humanity," he argues: "To expand the laws of war to apply to any situation where an organization…initiates force is to blur the distinction between situations where the law allows individuals to kill each other, and those where the law prohibits it."

Ratner recognizes the difficulties caused by a conflict where the United States operates under the rules of military engagement – shooting to kill the enemy anywhere in the world, or detaining them until the end of "hostilities" – while denying any of the rights of combatants to the enemy. He argues that the solution is not a new protocol, but rather the development of a clear international standard that sets limits on what counts as a battlefield and what counts as an armed conflict.

No one expects that the process begun at the meeting at Harvard will lead to any rapid decisions. As these two essays show, the issues raised by the application of the laws of war to modern conflicts are complex. In any discussion of this subject, there is a balance to be struck between idealism and practicality, and between precision and flexibility. What is likely is that there will now be a long period of dialogue and argument about how best to sustain the values of international humanitarian law in today’s world.

Related chapters from Crimes of War: What the Public Should Know:

Belligerent Status
Civilian Immunity
Combatant Status
Crimes Against Humanity
Customary Law
Gray Areas in IHL
Hors de Combat
International Committee of the Red Cross
Jus ad Bellum/Jus in Bello
Proportionality, Principle of
Protected Persons
Terrorism
United Nations and the Geneva Conventions

Related Links:

Revising the Laws of War to Account for Terrorism
By Anthony Dworkin
Findlaw, February 4, 2003

IHL Research Initiative
Program on Humanitarian Policy and Conflict Research, Harvard University

International Humanitarian Law at the Beginning of the 21st Century
Official Statement by Dr. Jakob Kellenberger,
President, International Committee of the Red Cross, May 9, 2002

America's dangerous new style of war
By Dinah PoKempner
The Boston Globe, January 29, 2003

International Committee of the Red Cross

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