This year’s anniversary of the Geneva Conventions provides the space for humanitarian practitioners and legal experts to reflect upon how these four universally ratified treaties held up through seven decades of warfare. Building upon Helen Durham’s metaphysical examination of the ancient and modern challenges facing international humanitarian law (IHL), this article explores and debunks several commonly held assertions.

As a long-time scholar and quite visible proponent of IHL, I have noticed a subtle but troubling narrative when it comes to the Geneva Conventions. At its essence, it goes something like this: “All I see in the world is violence and chaos. It’s all well and good to peddle a set of shiny legal texts, but they were put together at a time when armed conflict had a very different face. Do the people on the dirty front lines even know about the laws of war, much less follow the rules?”

I, for one, will not give in to this skepticism. There is more happening worldwide than the daily news coverage of atrocities in conflict zones; the impact and relevance of IHL are more profound in safeguarding a sanctuary for humanity. In support of the search for truth, here is how three commonly held claims hold up when examined through the lens of evidence gathered by the ICRC.

IHL is widely accepted and remains more relevant today than ever before.

Truth.

The four Geneva Conventions are among the very few international treaties that have been universally ratified or acceded to. Many States are also Parties to other IHL treaties, such as Additional Protocol I on international armed conflicts and Protocol II on non-international armed conflicts.

Moreover, the principles and main rules of IHL also exist as customary law, as ‘evidence of a general practice accepted as law’. Importantly, under customary law, the core of IHL is binding on all parties to all types of armed conflict, whether they are international or non-international. This is the conclusion of our 2005 Customary IHL study, based on an in-depth study of worldwide practice and legal views. The study’s practice part continues to be updated in the ICRC’s Customary IHL Database.

In fact, the main principles and rules of IHL are rarely put into question. Instead, it is their application or interpretation that is sometimes challenged. For example, the prohibition to attack civilians is rarely disputed, but questions arise on who qualifies as a civilian, whether civilians targeted in a specific situation had lost their protection against attack because they were taking a direct part in hostilities, or whether civilian losses were incidental to an attack against a military objective and compatible with the various requirements of IHL.

In addition to being widely accepted, the large majority of the Conventions’ rules have proven to be still relevant today. We can say this with some confidence due to the painstaking work undertaken to update – article by article – the initial ICRC Commentaries on the Geneva Conventions published in the 1950s under the general editorship of Jean Pictet. Based on practice in the application and interpretation of the Geneva Conventions since 1949, the updated Commentaries on the First and Second Geneva Conventions were released in 2016 and 2017, respectively. The next installment, the new Commentary on the Third Geneva Convention, is due for publication in 2020.

Of key importance is the new commentary on Common Article 3, the provision in the Conventions that regulates non-international armed conflicts. Although it is just one article, it is often referred to as a ‘mini-Convention within the Conventions’. Initially a mere 25 pages, the updated commentary weaves together 200 pages of practice, jurisprudence and doctrine. It tackles issues that were largely absent from the original commentary, such as cross-border and spill-over armed conflicts, provides detailed definitions of fundamental concepts such as humane treatment and the prohibitions of torture and cruel treatment and, unlike the original version, confronts head on the harrowing issue of sexual violence. As the vast majority of armed conflicts today are of a non-international character, Common Article 3 and its updated commentary is of paramount importance for contemporary warfare.

IHL actually has a positive impact on the lives of people affected by armed conflict.”

Truth.

Though challenging to untangle and verify, the evidence base is growing on the connection between IHL compliance and reducing human suffering. For example, a recent ICRC study on displacement in times of armed conflict demonstrates that respect for IHL is one of several ways to address the causes of displacement and plays a decisive role in supporting humanitarian action and preventing people from becoming displaced in the first place.

The need to investigate the role of IHL in mitigating the consequences of war has never been more pressing. This is the objective of IHL Impact, a series of research projects initiated and run by the ICRC. It seeks to contribute to greater respect for the law by providing pragmatic arguments on how IHL can make a difference in the lives of people during armed conflicts, collecting evidence showcasing the actual impact of IHL during armed conflict on various social, political and economic factors, such as human security, development and international relations.

The next research project in the series deals with IHL, missing persons and reconciliation. It seeks to highlight the benefits of respecting IHL provisions regarding missing persons during and after hostilities and determine whether addressing the question of missing persons affects reconciliation and coexistence. These are the types of dilemmas wherein the robust and respected framework of IHL can have the biggest impact; we must bolster efforts to shine light on that causal link.

“IHL is always violated and never respected.

Lie.

While IHL violations are seemingly pervasive and remain a brutal reality for women, children and men in armed conflicts worldwide, it is inaccurate and dangerous to infer that IHL is always disrespected (and therefore useless).

Adhering to this inaccurate claim would diminish the importance of significant decisions made every day by individuals choosing right over wrong. Case in point: South Sudan, where a non-state armed group committed to a total ban on anti-personnel land mines and, once becoming a ruling party, played a continued role in the country’s succession to the Anti-Personnel Mine Ban Convention. In Somalia, the African Union Mission (AMISOM) developed a new indirect fire policy which insisted upon taking all feasible precautions during attack and restricting the use of certain weapons in populated areas. In aiming to carry out its IHL obligations, this policy led to a measurable reduction in the harm of civilians during its operations.

These concrete examples are two of many gathered to date by IHL in Action, a collection of case studies showcasing real situations in which the law has been respected. It is compiled with publicly available information by the ICRC and four academic partners. The goal is to provide concrete examples of respect for IHL, demonstrating that it does have an impact on the lives of thousands of people involved in armed conflicts.

As ICRC President Peter Maurer stated during a speech earlier this year, “Every day we see IHL in action: when a wounded person is allowed through a checkpoint, when a child on the front lines receives food and other humanitarian aid, when the living conditions of detainees are improved or when they can receive contact with the families.” Even seventy years on, the Geneva Conventions are a lifeline, not a legacy.

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See also

Juliane Garcia Ravel & Vincent Bernard, Changing the narrative on international humanitarian law, 24 November 2017

Helen Durham, Black magic, zombies and dragons: a tale of IHL in the 21st century, 3 September 2019