Introduction to International Humanitarian Law
Today, August 12, 2021 marks 72 years since the Geneva Conventions of 1949 were adopted following the atrocities of World War II.1Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12,1949, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 UNTS 287 These Conventions were both forward and backward looking – in that they aimed to put an end to the Second World War and prepare for the next one.2Barsalou, Olivier. “Preparing for War: The USA and the Making of the 1949 Geneva Conventions on the Laws of War.” Journal of Conflict & Security Law, 2017, p. 1–25 They form a core of the concerted effort to minimise the human suffering and destruction of war by attempting to strike a balance between the requirements of military necessity and humanity. This endeavour underlies the basis of IHL. The Conventions still govern military conduct today despite the fact that armed conflict has markedly changed since then with the proliferation of intra-state as opposed to inter-state warfare,3International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001), para.1.16 the rise of non-state actors,4Peter Margulies, The Fog of War Reform: Change and Structure in the Law of Armed Conflict after September 11, (2012), 95 MLR, p.1427-8 emerging technology which has transformed the ability of states to engage in hostilities,5 P. R. Hensel, ‘The More Things Change…: Recognizing And Responding To Trends In Armed Conflict’ (2002) 19 CMPS, p.29 and the civilianisation of conflict.6Andreas Wenger and Simon J. A. Mason, The civilianization of armed conflict: trends and implications, International Review of the Red Cross, Volume 90 Number 872 December 2008
The articles on the Diplomacy, Law, and Policy Forum for this month focus on introducing key concepts of IHL, namely the classification of conflicts, the relevance of status and cardinal principles of the regime, all the while situating them within contemporary issues in armed conflict. This first editorial of the Forum meanwhile outlines the development of International Humanitarian Law (IHL) till date, the key achievements of the Geneva Conventions 1949 and Additional Protocols 1977 as well as some missed opportunities.
The Development of International Humanitarian Law
The first Geneva Convention was adopted in 1864 which sought to protect those soldiers wounded in battle.7Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, 22 August 1864 Prior to this, war victims were protected only if there was a bilateral agreement by belligerent commanders and if any customary international law existed on the matter.8Cantrell, Charles L. “Humanitarian Law in Armed Conflict: The Third Diplomatic Conference.” Marquette Law Review, vol. 61, no. 2, Winter 1977, p. 253-278, p. 254 The Convention recognised the rights of those injured in armed conflicts, giving sanctity to the individual for the first time in international law.9Ibid page 259 The St. Petersburg Declaration of 1868 soon followed which prohibited the use of certain weapons in war and acknowledged the military advantage sought should be balanced against the resulting destruction, this was to become the foundation for a cardinal principle of IHL, that of proportionality.10Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, 29 November / 11 December 1868 The Hague Conventions of 1899 and 1907 also aimed to circumscribe the means and methods of conducting warfare.11Hague Conventions of 1899 (II) and 1907 (IV) respecting the laws and customs of war on land These rules, particularly those which relate to occupations, are still relevant today over a century later. The 1929 Geneva Conventions were two treaties which expanded and modernised the laws of war and were applicable until the end of the Second World War.12Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field, July 27, 1929, Geneva Convention relative to the Treatment of Prisoners of War, Geneva July 27, 1929
The key developments in IHL however came following World War II which led to the adoption of the four Geneva Conventions which have been ratified by 196 states to date.13See ICRC, Treaties, States Parties and Commentaries, Geneva Conventions 1949 The subsequent Additional Protocols I and II applicable to international and non-international armed conflicts respectively endeavour to evolve the laws of war in keeping with the changing nature of warfare, new technologies, and political realities.14International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3; International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609; Armstrong, Arthur John. “Mercenaries and Freedom Fighters: The Legal Regime of the Combatant under Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I).” JAG Journal, vol. 30, no. 2, Winter 1978, p. 125-180, p.125 The key achievements of the Geneva Conventions of 1949 and Additional Protocols of 1977 are outlined below.
Application to Undeclared States of War
The 1949 Conventions extended the application of IHL considerably in comparison to the 1929 Conventions and any customary international law applicable to armed conflicts. Under Common Article 2, the law of international armed conflict applied to all undeclared states of war as well as the occupation of territory where there was no armed resistance.15Common Article 2 to the Geneva Conventions 1949, Cantrell (supra n.8) It states that the Conventions apply to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”. There had been conflicts after the Second World War which the parties had not considered to be wars attracting the application of IHL, therefore, the removal of subjective in favour of objective determinations of what classifies an armed conflict was significant.16Esgain, Albert J., and Waldemar A. Solf. “Geneva Convention Relative to the Treatment of Prisoners of War 1949: Its Principles, Innovations, and Deficiencies, The .” North Carolina Law Review, vol. 41, no. 3, 1962-1963, p. 537-596. p.544
States to Ensure IHL is Respected "In All Circumstances"
Common Article 1 to the Geneva Conventions obliges states to “respect and ensure respect for the present Conventions in all circumstances”. This duty was to be undertaken unilaterally and not merely reciprocally as is evident from the use of “in all circumstances” and was not dependent on whether the other parties to the conflict also respected the laws of war.17Ibid It also extends to times of peace and states are to take preparatory measures to train members of the armed forces in order to ensure respect for IHL and prevent violations. This includes disseminating awareness of IHL to the military and civil community, and also enacting the necessary legislation to prohibit and prosecute grave breaches of the Geneva Conventions.18Ibid It has also been argued that the obligation to respect IHL should be interpreted so broadly as to include efforts by states to resolve conflicts peacefully based on the principles in the UN Charter.19Laurence Boisson de Chazournes, Luigi Condorelli, Common Article 1 of the Geneva Conventions revisited: Protecting collective interests, International Review of the Red Cross, No. 837, 31-03-2000 This may require the promotion of meaningful negotiations as a form of preventive action.20Ibid This obligation is wide-reaching and promotes the settling of disputes peacefully in a manner which intertwines the Geneva Conventions and the UN Charter and is a welcome development in IHL.
Common Article 3 and Civil Wars
Common Article 3 is arguably one of the most significant provisions of the Geneva Conventions of 1949 and one which was hotly debated during the Conferences. It took 25 meetings to achieve consensus on the language used in the Article until it was finally adopted without a single reservation.21Esgain and Waldemar (supra n.16) Inspired by the events of the Spanish Civil War, it is a mini-convention in and of itself which establishes minimum standards applicable to intra-state wars.22Ibid States agreed to IHL applying to matters which had until then been considered domestic in character thereby piercing the absolute sovereignty that had existed in domestic and colonial affairs.23van Dijk, Boyd. “Human Rights in War: On the Entangled Foundations of the 1949 Geneva Conventions.” American Journal of International Law, vol. 112, no. 4, October 2018, p. 553-582 It provides protections for those not participating in hostilities in non-international armed conflicts including protections from violence, from being taken hostage, outrages on personal dignity etc.24Common Article 3 to the Geneva Conventions 1949 It also explicitly states that its application does not affect the legal status of parties to the conflict, a criteria essential for its adoption as it is doubtful whether states would agree to a provision which would give legitimacy to insurrection.25Esgain and Waldemar (supra n.16) Moreover, it also allows the government to try and prosecute rebels so long as they are given a fair trial. The Article takes civil wars out of the purview of the exclusive domestic jurisdiction of a state and they would, from now on, attract the application of IHL. This was a progressive development in the form of a single provision which evolved IHL so it now applied to intra-state wars and often remains the only law (as well as customary IHL) applicable to such conflicts.
Legitimacy for Self-Determination Movements
The negotiations for the Additional Protocols of 1977 were partaken in by far more states than were present at the conferences for the 1949 Conventions. This was because decolonisation in the intervening years had seen the rise of many new countries which were no longer beholden to their former colonial masters. A major consequence of this was the legitimacy given to self-determination movements by the Third World bloc.26Cantrell (supra n.8) page 277 Wars of national liberation, under Article 1(4) of Additional Protocol I, against racist, alien and colonial regimes were elevated to the category of international armed conflicts, with all the attendant rights and obligations that go with it. Western states strongly opposed extending the protections of the Protocol to wars of national liberation.27Armstrong, Arthur John. “Mercenaries and Freedom Fighters: The Legal Regime of the Combatant under Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I).” JAG Journal, vol. 30, no. 2, Winter 1978, p. 125-180, page 139 They rejected the idea that the political cause of a conflict would determine its classification.28Ibid The success of the Third World bloc in ensuring Article 1(4) was retained in the Protocol reflects the political impact of emerging states on IHL in modernising humanitarian laws applicable to armed conflicts. Their pressure to legitimise wars of national liberation as an exercise of the right to self-determination against racial discrimination and colonial powers in the form of this provision is a political victory.29Ibid page 177
Additional Protocol I also acknowledged the rise in non-state actors on the international plane and their ability to wage wars of national liberation. Article 96 states that when liberation movements agree to adhere to the laws of war, then signatory parties are then bound to reciprocate. By way of example, Armstrong explains that this “means that if Israel is bound by the Protocols and the Palestine Liberation Organization accepts and applies the provisions thereof, Israel is bound to apply the Protocol in their mutual relations”.30Ibid However, it is likely, as a result of this provision, that states like Israel will be reluctant to ratify the Protocol. Nevertheless, the legitimacy granted to wars of national liberation and the movements waging them was an important step in acknowledging that such conflicts are a vehicle for the exercise of the right to self-determination. Bestowing this legitimacy on such conflicts gave this right more teeth.
A Missed Opportunity? Banning Nuclear Weapons
During the Geneva Conferences, a Soviet resolution was tabled which sought to outlaw aerial bombardments with the “means of exterminating the civilian population”. The Soviet representative stated that the draft Fourth Geneva Convention “does not protect the civilian population against the effect of modern weapons of warfare, such as the atomic bomb, and bacteriological, chemical, and other means of mass destruction”. It sought to make these means of warfare illegal. Ultimately the resolution failed due to the opposition of the United States, the United Kingdom and other commonwealth countries.31Barsalou (supra n.2) The issue also divided international lawyers who stayed silent on the legality of nuclear weapons, with Kunz stating that “The reason for this silence seems to be the fact that atomic bombs were first used by the United States”. The US was to rely heavily on technologically advanced weaponry in its post-Cold War doctrine as opposed to the Soviet Union which had largely conventional weapons.32Ibid Most lawyers seemed to conclude that international law was powerless to prohibit these types of weapons so long as states wanted to use them.33Ibid Ultimately, in what was otherwise a Conference in which humanitarian principles were progressively safeguarded against notions of military necessity, in this area the representatives unfortunately fell short.
The Geneva Conventions remain the cornerstone for contemporary IHL; protecting those not participating in hostilities, preventing human suffering, and respecting human dignity in an armed conflict. They progressively developed the laws of war by ensuring their respect in all circumstances, their application to undeclared states of war as well as, significantly, to intra-state wars. They have since been supplemented by the Additional Protocols, the negotiations for which were marked by the participation of newly independent third world States. While in some aspects they may be a missed opportunity, namely in the ability of states to outlaw weapons of mass extermination, they remain relevant in protecting humanity in war. It remains to be seen, however, whether they will continue to fulfil this purpose given new challenges such as cyberwarfare, autonomous weapons and artificial intelligence as well as issues such as the civilianisation and urbanisation of conflict. In the coming months, the DLP Forum will include content which discusses all of these contemporary challenges and considers IHL in light of recent developments in how war is waged today.