Protection of Civilians in Crisis: Geneva Conventions at 75
With the devastating news from Ukraine, Gaza and Sudan among other wars, we witness a crisis of the international regime for protecting civilians in armed conflict. However, this is not a total collapse but a return to the troubling world that the legal protections for civilians in the 1949 Geneva Conventions were made for.
Crisis
In recent wars in Syria, Yemen, Myanmar, Ukraine, Ethiopia, Gaza and Sudan among others, we have witnessed severe war crimes being committed with impunity. In particular, civilians have suffered from attacks that are prohibited by the Geneva Conventions that form the basis for contemporary International Humanitarian Law (IHL). The toll on children is particularly heartbreaking, and systematic uses of sieges and heavy weapons in populated areas are deeply concerning tendencies (confirming this analysis from 2020). When hiding amongst civilians and using them as shields, guerilla fighters keep exploiting and undermining IHL (an issue that gained much attention in negotiations on the 1949 Conventions and the 1977 Additional Protocols).
These developments were hardly thinkable in the early 2000s, when concerted efforts were made at strengthening the protection of civilians in armed conflict. Like with the ‘never again’ after WW2, another ‘never again’ sounded after the gruesome wars and genocides of the 1990s, and the Rwanda genocide in particular. With a relatively united UN Security Council (UNSC), the principles of the Responsibility to Protect (RtoP) and the Protection of Civilians (PoC) were introduced to advance and enforce IHL, including through international peace operations when needed. In continuation of International Tribunals of the 1990s, the International Criminal Court (ICC) was established in 2002 to end impunity for genocide, war crimes, crimes against humanity and the crime of aggression. These efforts were reflected in extensive engagement from civil society and politicians, as exemplified by the mobilization to protect civilians from genocidal warfare in Darfur in the early 2000s.
The contrast to the scant attention and lacking political influence of the UN on the current fighting in Darfur could hardly be starker. The shift in this trend followed the controversial NATO operation in Libya in 2011 when Russia and China, amongst others, protested against the use of protection of civilians as a pretext for regime change – the exact reason why they had been skeptical to humanitarian military intervention all along. This gave them a welcome reason for vetoing UNSC resolutions for the protection of civilians when the war in Syria erupted. Russia eventually held its hands over the Assad regime’s systematic war crimes in Syria. When the US recently vetoed repeated efforts in the Council to halt the devastating bombardment by Israel of densely populated areas in Gaza (and continues funding and arming Israel), it shows how it is not only Russia that prioritizes its political interests above protecting civilians when these objectives do not align.
Between ideals and interests
With the failure of the UN Security Council to hold warring parties accountable, one might get the impression of a collapse of IHL as a whole. Yet, the Geneva Conventions are still the point of reference when states discuss legitimate conduct in war. In spite of controversies over the ICC, there has been no question of discarding the Geneva Conventions as such. Militaries around the world are continuously integrating IHL in their training and operations, and the International Committee of the Red Cross (ICRC), Geneva Call and other humanitarian organizations keep promoting IHL in multiple ways around the world. Both states and non-state armed groups often adhere to IHL, at least when it does not significantly hamper their military capabilities (thanks to Rob Grace for these references).
Essentially, we do not see all the times IHL is being respected and how it affects the calculations of warring parties. It is very hard to document the positive impact of IHL based on the news. Journalists and readers are aware that civilians, hospitals and humanitarian personnel should not be targeted and that prisoners of war should not be mistreated. Together with the increase in armed conflict over the past few years, repeated news on violations of IHL nonetheless leaves an impression of collapse.
In a sense, we are back in the kind of situation where the Geneva Conventions were made in 1949. These conventions are commonly seen as a moral response to the tragedies of the Second World War, and that was certainly also partly the case. However, like any preceding efforts at regulating war, the Geneva Conventions were still premised on the political interests of the involved parties. To put it simply, the state representatives all asked themselves ‘How can we regulate the conduct of war in a way that does not reduce our military strength?’.
When warring parties fail to respect the resultant laws today, it is therefore not necessarily an outright dismissal of regulating war but because they tend to break the rules when they conflict with their political interest and they can get away with it. There is thus a continuous military, legal and political battle for upholding the rules of war and insisting on their adequate interpretation. And there are still many options for enhancing the security of civilians in armed conflict. When thinking about how this can be done in practice, it is fundamentally important to keep the major powers onboard.
Make it political
Even if we see an increase in tragic wars, we are far from the devastations of the Second World War from which the Geneva Conventions emerged. The outbreak of war between major powers like US, Russia and China would be the ultimate test for IHL. If the warring parties do not trust that their opponents will respect the laws of war in such a scenario, it is hard to overestimate the toll it will take on civilians worldwide. The most precious part of IHL is this trust in that the enemy will adhere to the same limitations on armed force. When war crimes are repeatedly committed with impunity, this trust is gradually being undermined. So how can other states and civil society respond to the crisis of PoC without pushing the veto powers further away from IHL?
The key to doing so is not to juxtapose interests against ideals and relying on naming and shaming of violations alone. It requires political efforts to keep ensuring that IHL harmonizes with the interests of states – not only by sanctioning violations but through diplomatic and multilateral efforts for upholding their trust in each other’s compliance. Responding to the crisis of PoC therefore does not rely as much on a united Security Council as on the spirit of the Geneva Conventions where states negotiated across enemy lines to rule out unnecessarily destructive scenarios.
By reducing the harm of war, IHL makes an essential contribution to the protection of civilians. It can also make ending conflicts and sustaining peace more possible – and prevent new conflicts from erupting by reducing the grievances of former wars. Ensuring that war does not erupt in the first place is not within the scope of IHL, however. It does not regulate the resort to war, and it also does not provide a legal basis for peace. This is a matter for the basic provisions of the UN Charter. Also international human rights law can be an important source of peace – in creating societies in which conflicts are expressed and addressed without violence.
Yet, the protection of civilians is ultimately a political question beyond the law. If politicians and diplomats rest too much on IHL and leave the job to their lawyers, the boxing bag of IHL may turn into a pillow to rest on. In order to prevent new nightmares of total war, the political fight for upholding IHL must continue with the major powers in the ring.
Kristoffer Lidén is a Research Director at the Peace Research Institute Oslo (PRIO) working on the ethics of international affairs. This text relates to an ongoing project on humanitarian negotiations and his previous research on the protection of civilians.
Image: WAFA (Q2915969) via WikiMedia Attribution-Share Alike 3.0 Unported
