On 12 August 2009, just a few days back, was the 60th anniversary of the 1949 Geneva Conventions, which presently constitute the foundational codifications of the legal regime of the laws of war or international humanitarian law (IHL). The symbolic value of these fundamental legal instruments of international humanitarian law, and general public international law as a whole, cannot be overestimated. Therefore, it is with great emotional turbulence that I propose a few enthusing utterances which serve to recall some of the most colossal facets of this legal regime, and mark this momentous historic event.
The definition of war and the existence of this phenomenon of human endurance is, sadly, beyond the ambits of this post, and so is the question of the legality of wars. In fact, it would suffice to say that today, wars being a simple fact of reality (though difficult and painful to understand and more so accept) are becoming over the years more omnipresent. In fact, it is a great misfortune, that some scholars and a number of states would strongly argue that it is simply unfeasible to claim that the optimal level of war in the world is zero.
Interestingly, the reasons for which wars are waged are changing continuously (See ‘Changing War, Changing Law’ by Adam Roberts). In this context, the role of the body of IHL rules is pivotal for constructing gate-keeping mechanisms that would interpretatively develop to better restrict those deviant actors who persistently evade and distort the framework of IHL by distorting its normative standing and sometimes even overlooking altogether their genealogical roots, i.e. their humanitarian character which serves primarily to protect the civilian population. In this regard, Lauterpacht has stated,
“…it is not only the abandonment of the humanitarian rules in the strict sense of the word which must necessarily deprive the conduct of hostilities of essential constraints. Most rules of war are, in a sense, of a humanitarian character inasmuch as their object is to safeguard, within the limits of the stern exigencies of war, human life and some other fundamental human rights…” (in Rules of Warfare, 93-4).
The present day applications of the laws of war have proven to allow for an overly lenient perception to emerge of what is and what is not legitimate in the ways war is conducted. Namely, interpretations of various provisions by parties to modern day armed conflicts, the nature of which has considerably changed, have diverged immensely, inevitably resulting in their fragmentation of and distancing from their core objective, being the display of humanity in armed conflict (despite the anomalistic nature of this terminology).
Whilst recalling the intentions that existed in the minds of the drafters of the Conventions, and the whole body of IHL rules – containing 100 treaties and other texts that include law protecting the victims of war and law governing the conduct of hostilities, from 1856 to the present – it should be noted with retained pragmatism that, as Prof. Sassòli and Prof. Bouvier note in ‘How Does Law Defend in War?’ (2005), the Conventions and the body of IHL rules remain to a certain extent the “vanishing point” of international law.
It is thereby hoped that states will commence this new decade for the Geneva Conventions by adopting an enforcement oriented approach to the laws of war; one that is conscious of the history and object of the Conventions as the founding instruments of contemporary IHL, and that respects the need to ensure that interpretational developments of the Conventions’ provisions are in line with these very principal notions that represent the underlying red string that constructs the laws of war.
The negatory discourses initiated and developed by deviant states, often looking deceptively for the complimenterization of contemporary norms by arguing for their outdated character, is only another means for hanging onto minutia for the purpose of evading compliance with the norms as they stand at present. Such exercises, that seek to negate the relevance of the Convention rules – which also often maintain the presumption that the law in its present state is fraught with normative deficiencies – is at best ignorant (whilst at worst indifferent) to the significance of the impact that this branch of law has (and should obtain) on international relations and reality.
To conclude this curt tribute, the words of the present ICRC President, Jacob Kellenberger, in his address in commemoration of this important coming of age, can be recapped as follows:
“It almost goes without saying that contemporary warfare rarely consists of two well-structured armies facing each other on a geographically defined battlefield. As lines have become increasingly blurred between various armed groups and between combatants and civilians, it is civilian men, women and children who have increasingly become the main victims… While these challenges have a legal and often a political dimension, I must stress that our ultimate concern is purely humanitarian; our only motivation is to contribute to achieving better protection for the victims of armed conflict… Ideally of course, all parties to an armed conflict, whatever they call themselves or each other, would appreciate that it is in their own best interest to apply the legal restraints provided by IHL. After all, combatants on both sides have obligations as well as rights… However, the lack of respect for existing rules remains, as ever, the main challenge. I hardly need to remind you of the catalogue of flagrant violations of IHL frequently witnessed in armed conflicts around the world today. This situation – sadly – is compounded by a prevailing culture of impunity… Public pressure and international scrutiny of conduct in an armed conflict are also significant factors in improving compliance with IHL… On the 60th anniversary of the Geneva Conventions, I make a heartfelt plea to States and non-state armed groups who are also bound by their provisions, to show the requisite political will to turn legal provisions into a meaningful reality. I urge them to show good faith in protecting the victims of armed conflicts – conflicts that in view of the challenges I have mentioned today are likely to become ever-more pernicious in the years to come… The essential spirit of the Geneva Conventions – to uphold human life and dignity even in the midst of armed conflict – is as important now as it was 60 years ago.”
Happy (belated) Birthday, Geneva Conventions!