The world changes and evolves continuously. In such circumstances, few things remain as relevant or as useful as they originally were. Laws and rules that seek to cover the entire world within their jurisdiction tend to become irrelevant faster. The Geneva Conventions are a set of such. However, before we can discard the Geneva Conventions out of hand, we must thoroughly analyze and examine the central value that has sustained it through more than a century of war and strife since the first convention in 1864.
This paper seeks to examine the adequacy of the Geneva Conventions with reference to the developments in warfare in post-1945 or post-Second World War world. In order to do so, this paper will have to bring out the differences between the circumstances, conditions and types of warfare before and after 1945. Thereafter, this paper will attempt to analyse the effectiveness of the provisions of the Geneva Conventions with regard to the differences in warfare that it has passed through. The first task, however, will be to gain a proper understanding of the scope and nature of the Geneva Conventions.
The Dynamics of IHL In 1864, the first Geneva Convention was adopted by 16 countries of Europe. Initiated by the Red Cross and entitled the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field it endeavoured to safeguard the humanitarian rights of soldiers wounded in the battlefield irrespective of their affiliations. The birth of Humanitarian Law is said to have taken place with the signing of the first Geneva Convention. The Second Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field was signed in 1906.
The third Geneva Convention Relative to the Treatment of Prisoners of War was signed in 1929. Finally, the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War was signed in 1949. The Fourth Geneva Convention also revised the three earlier Geneva Conventions and combined all the four into a single set of International Humanitarian Laws. Even after the Fourth Geneva Convention, four more amendments known as the Geneva Protocols have been added to the Geneva conventions.
Protocol I for Protection of Victims of International Armed Conflicts and Protocol II for Protection of Victims of non-international Armed Conflicts were added in 1977. Protocol III relating to the adoption of an additional non-religious emblem for the Red Cross was added in 2006 and Protocol IV on Blinding Laser Weapons was adopted in 1995. Therefore, the Geneva Conventions have undergone a continuous process of adaptation through its many additions, modifications, revisions and amendments. What were the changes in circumstances that had called for this continuous process of adaptation?
In 1999, on the occasion of the 50th anniversary of the adoption of the combined Geneva Conventions, Dr Dietrich Schindler (1999, p:8-14), defines three distinct periods of development that International Humanitarian Law has undergone since the Second World War. The First Period from the end of the Second World War to the early Sixties is marked by the comparatively easy and fast adoption of the combined Geneva Conventions. The United Nations did not participate directly in the exercise of framing or adopting the Conventions.
However, its efforts to put together an international guarantee of human rights, which resulted in the proclamation of the Universal Declaration of Human Rights in December 1948, left its imprint on the Conventions. This period witnessed a gradual transformation of concept from the traditional laws of war to human rights-oriented law. In the early Fifties, the International Committee of the Red Cross (ICRC) replaced the terms ‘law of war’ and ‘law of armed conflict’ with ‘international humanitarian law’.
Though the Conventions played a minor role in the Korean and the Indochina wars of the early Fifties, and the ‘Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War’ was approved by the ICRC in 1956, there was a lull in further development of IHL during this period. The war in Vietnam, the wars between the Arab states and Israel, the civil war in Nigeria/Biafra, and the wars of liberation in Africa resulted in bringing about what Schindler (1999, p:8-14) terms as the Second Period of development of the IHL from the Sixties to the Eighties.
The significant development in this period was the United Nation’s direct involvement in matters of IHL. Starting in 1968, the General Assembly of the United Nations passed several resolutions insisting that wars of national liberation be regarded as international armed conflicts. The Geneva Conventions were to be fully adhered to in such international armed conflicts. The response to these developments was in the form of the adoption of the two Geneva Protocols of 1977. The end of the Cold War in 1989 marked the beginning of the Third Period in the development of IHL.
The end of the cold war saw the escalation of internal conflicts on such a scale that it threatened the international community. Internal armed conflicts resulted in even greater humanitarian problems than international conflicts. Initially the UN tried to control the situation by sending observer missions and peace-keeping forces. Such efforts even achieved some degree of success in examples such as Cambodia, el Salvador and Mozambique. However, such measures were not possible in or were wholly inadequate for complicated situations such as those in Somalia, Rwanda, former Yugoslavia, Sierra Leone and Liberia.
This, according to Schindler, led to several significant developments. The Security Council decided that the large-scale violation of human rights in internal armed conflicts constituted a threat to international peace. It subsequently authorized the use of force and set up international criminal tribunals to bring such humanitarian catastrophes under control. Another development was that the distinction between international and internal armed conflicts gradually became blurred. The law of internal armed conflict was increasingly assimilated to the law of international armed conflict.
A third development was the growth in importance of customary law: “The International Criminal Tribunal (for Yougoslavia), in its Tadic decision…came to the conclusion that many principles originally applicable in international armed conflicts only had in the course of time become customary rules applicable also in non-international conflicts. It enumerated a considerable number of such customary rules. This finding constitutes one of the most important results of the post-Cold War developments. ” (Schindler, 1999, p:8-14)
A fourth development was the realization that violation of IHL also amounted to violation of human rights law. This was mainly due to the nature and scale of the internal armed conflicts. The Security Council and other UN agencies started to appeal for maintenance of both IHL and human rights law. “The fifth important development, finally, can be seen in the statement of the International Court of Justice in its Advisory Opinion of 1996 that the fundamental principles of humanitarian law constitute ‘intransgressible principles of international customary law’.
These principles, in other words, belong to the most fundamental norms of international law, norms which are part of what could be called the unwritten constitution of the international community. They are an indispensable foundation of the international community. ” (Schindler, 1999, p:8-14) Thus we find that the Geneva Conventions have evolved through a process of adaptation to changing circumstances and conditions of warfare. The ICRC, the UN and other international organizations had reacted and responded to these changing conditions.
They have been instrumental in shaping the Geneva Conventions to suit the requirements of the times. Everybody implicitly accepted that the ‘fundamental principles of International Humanitarian Law was the foundation of the international community. ’ The development of these fundamental humanitarian principles is the result of the worldwide experiences of history: “The cumulative effect of these historical experiences and precedents demonstrates the universality of humanitarian principles governing the conduct of armed conflicts.
Indeed … these humanitarian principles, norms and rules regulating armed conflict developed over several millennia, spanning many civilizations continents apart, and covering a wide range of conduct have evolved in the same direction. ” (Bassiouni, M. Cherif, 1999, p. 60) War on Terror The growth of terrorism is yet another set of changed circumstances. The Geneva Conventions would perhaps have adapted itself to this new challenge as they had done on many occasions before. All that would have been required was a bit more of effort and a little more time on the part of the international community. That was however not to be.
The September 11, 2001 terrorist attacks blew things out of proportion. A terrified world pressed the panic button. A sense of bewilderment is very evident in the Attorney General of the United States, Alberto Gonzales’ argument on why the Geneva Conventions are not applicable in the case of the War on Terror in his January 25, 2002 draft memorandum to the President: “As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop of the GPW (Geneva Convention III on the Treatment of Prisoners of War).
The nature of new war places a high premium on other factors, such as ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians. In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i. e. , advances of monthly pay), athletic uniforms, and scientific instruments. ”(Gonzales, A.
January 25, 2002, p. 2) The main reason why the US Attorney General had referred to the provisions of the Geneva Conventions as ‘obsolete’ and ‘quaint’ was that terrorist groups were non-state actors and could therefore not be a party to any international agreement. The question whether the Geneva Conventions should apply to an international terrorist organization such as the al Qaeda stems from the common Article 2(3) of the Conventions which reads: Although one of the Powers in conflict may not be a Party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.
They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. A Case of Foresightedness By ‘power’ the framers of the Geneva Conventions had implied a State. Do international terrorist organizations qualify to be given the status of a state? And even if they are taken to be ‘powers’ would they reciprocate by conforming to the provisions of the Geneva Conventions? Such a debate, however, cannot be carried forward without taking into account Article 4. A. of the Third Geneva Convention that defines Prisoners of War (PoWs).
The scope of the Article is broad enough to encompass almost all types of combatants in wars fought between a wide range of groups. Besides the regular armed forces along with their volunteer corps, Article 4. A also accords PoW status to members of ‘organized resistance movements’ attached to one of the warring parties, even if they are within occupied territory subject to the fulfillment of four basic conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war. Not only that, the Article goes to the extent of providing PoW status to members of regular armed forces of governments or authorities that are not recognized by the ‘detaining power’. That is stopping just one step short of bringing international terrorist organizations under the provisions for PoWs. However, putting the two articles together, it would seem that members of international terrorist organizations are not covered by the Geneva Conventions. The answer however lies in Article 5(2) of the Third Geneva Convention which specifically states:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention (meaning: they must be treated as if they were POWs) until such time as their status has been determined by a competent tribunal. It is therefore clear that the framers of the Geneva Conventions had tried to bring in almost all known categories of war prisoners under the purview and protection of its provisions for PoWs.
Not only that, the Conventions had gone one step further to take into account prisoners of the future who may not fit into the definitions of POWs already incorporated. The Convention had had the foresight to envision change, and to leave enough scope to at least temporarily accommodate such changes. With changes in political scenario there have been changes in the type of warfare. New versions of warfare include: i. Armed internal conflicts as a result of ‘failed states’ or states in which the prominent controlling power has collapsed, especially in the aftermath of the end of the Cold War; ii. Ethnic struggles; and
iii. Asymmetric wars in which an overpowering state such as the US faces comparatively far weaker adversaries who resort to terror tactics. Fighting these new wars are new types of warriors such as warlords, mercenaries and private security companies. Terrorists and child warriors form a category of what can be termed as illegitimate warriors. From the above analysis of the Geneva Convention provisions it is evident that the Convention had anticipated changes in the future and kept adequate scope to be able to at least accommodate these changes on a temporary basis until more permanent solutions are brought into place.
The history of the Geneva Conventions also proves that the Conventions are adaptable to changes given the will and effort of the international community. Trying to brush aside the Conventions in knee-jerk reactions to incidents such as September 11, 2001, will in turn lead to incidents such as mistreatment of prisoners in Abu Ghraib. Such incidents will only serve to undermine the credibility of the international community and those who fight to free the world of terrorism. Widening the scope of the Geneva Conventions will strengthen the hands of those who adhere by it.
In a war such as the War on Terror, it is vital to maintain the distinction between the practitioners of terror and those who want a world of peace. Conforming to the provisions of the Geneva Conventions is an easy way of maintaining the distinction. Nebers (2006, p. 387-388) cites three basic and convincing reasons in support of adapting and strengthening the Geneva Conventions so that its relevance remains intact. First, those who uphold the Conventions, set a precedence. This increases the level of protection for the conformists themselves.
Second, the fight against terrorism requires multilateral collaboration. The Geneva Conventions promotes and advocates international co-operation. Third, both the victims and the perpetrators of the wars that are prevalent in the present world, deserve the basic protections afforded by the Geneva Conventions. The Constants in a Variable World There are a few things that do not change in this changing world. They serve to anchor the faith of humanity. What have remained unwavering and unchanged about the Geneva Conventions are its fundamental tenets or principles.
Conforming to these tenets differentiates between the terrorists and those who fight them: “The premise is that the legitimacy of measures taken in the name of the counter terrorist struggle depends on their consistency with international law. It is essentially this reference to objectively verifiable standards and processes – rather than subjective assertions as to good and evil – that enable credible distinctions to be drawn between those that abide by the rules of the international community and those, like the architects of 9/11, that conspire against them.
(Duffy, H. , 2005, p. 1-2) Even US Attorney General Alberto Gonzales has acknowledged that the ‘Geneva Conventions’ basic principles regarding “decent treatment of human beings” remain unquestioned’ (Nevers, p. 105). These fundamental tenets by themselves make the Geneva Convention adequate enough to meet the developments in warfare in the post-1945 war. Changes will have to be adapted to by broadening the scope of the Conventions.
What will however make the Conventions practically relevant is adherence and conformity to its provisions by the larger international community. References 1. Bassiouni, M. Cherif, 1999, Crimes Against Humanity in International Criminal Law, Kluwer Law International. 2. Duffy, Helen, 2005 The ‘War on Terror’ and the Framework of International Law Cambridge, UK: Cambridge University Press 3. Extract from “Basic rules of the Geneva Conventions and their Additional Protocols”, http://www. icrc. org/web/eng/siteeng0.
nsf/htmlall/668BF8 4. Gonzales, A. R. , January 25, 2002, Decision RE Application of the Geneva Conventions on Prisoners of War to the Conflict with Al Qaeda and the Taliban, Draft proposal to the President of the United States. 5. Grabenwater, C. , Helgesen, J. , Nolte, G. , European Commission for Democracy through Law, Venice Commission, December 2003, Opinion on the Possible Need for further Development of the Geneva Commissions. 6. Nevers, R. d. , 2006, Modernizing the Geneva Conventions, The Wahington Quarterly, Spring 2006.