The Geneva Conventions Today
Address by Knut Dörmann, Head of the Legal Division, International Committee of the Red Cross, , London, 9 July 2009
Ladies and Gentlemen,
I should like to thank the Foreign and Commonwealth Office and the British Red Cross for organizing this joint conference to mark the 60th anniversary of the Geneva Conventions. It is a great pleasure to address this distinguished audience.
The anniversary is clearly an important moment to highlight the role played by the Geneva Conventions over the past six decades and the protection they have afforded in past wars. It is also an important occasion to reflect on and evaluate the Conventions'role and challenges they face in conflicts today.
The Conventions must not be viewed in isolation. Since their conclusion in 1949, they have been supplemented and developed by three Additional Protocols. These Protocols, for example, have codified and, for the first time, detailed many of the rules on the conduct of hostilities. The Additional Protocols also expanded the list of fundamental guarantees applicable to all persons in the power of an adverse party. Many of these rules are now part of customary international law.
I should like now to briefly examine certain aspects of the Conventions and their significance in the context of contemporary warfare.
It is important to note, first of all, that the Conventions are directed primarily at the regulation of international armed conflicts. That such conflicts are perhaps less frequent, or smaller in scale, than in the past has no bearing on the relevance or validity of the Conventions today. They are no less valid and they continue to provide important forms of protection. All the provisions of the four Conventions were applicable in recent conflicts, including in Afghanistan (2001-2002), in the Iraq war (2003-2004) and during the conflict between Russia and Georgia (2008). There is also reason to believe that further international armed conflicts, including large-scale conflicts, remain a possibility in the future. Tensions between various States persist, and the circumstances in which States might resort to the use of armed force are easily imagined.
In international armed conflicts, including situations of military occupation, the Geneva Conventions are crucial for ensuring protection for victims. The provisions of the Conventions – for instance, on the material conditions of detention – have been fundamental in saving the lives and ensuring the well-being of many detainees. It is on the basis of these rules t hat the ICRC reminds States that they have consented to abide by certain standards of treatment in times of armed conflict; and it is these rules that enable the ICRC to carry out its humanitarian mission in the field.
Figures from recent international armed conflicts demonstrate the continuing relevance of the Geneva Conventions. During the conflict between Eritrea and Ethiopia, the ICRC visited - in the year 2000 alone - over 1,000 Ethiopian prisoners of war and 4,300 civilian internees. In addition, we facilitated the exchange of 16,326 messages between Ethiopian and Eritrean prisoners of war and their families. The ICRC also organized safe passage across the front lines for 12,493 civilians of Ethiopian origin. In cooperation with the Eritrean Red Cross, the ICRC distributed aid to over 150,000 civilians affected by the conflict, and provided surgical supplies for the treatment of 10,000 war-wounded, in cooperation with the Eritrean Ministry of Health.
In Iraq, between April 2003 and May 2004, the ICRC visited 6,100 prisoners of war and 11,146 civilian internees and detainees held by the occupying powers; and over 16,000 Red Cross messages were exchanged between prisoners and their families. Even in the fairly short conflict between Russia and Georgia in 2008, a number of prisoners of war benefited from the status and protection conferred upon them by the Third Geneva Convention. On the basis of this Convention, the ICRC was able visit the POWs in question.
Not all the positive effects of the Geneva Conventions can be reflected in concrete figures. That does not mean that they do not exist. ICRC delegates, in armed conflicts around the world, can testify that they do. We know, for instance, that the distinctive emblems of the red cross and the red crescent have protected innumerable hospitals, medical units and personnel as well as numberless wounded and sick persons. These emblems, which derive their protective value from the Geneva Conventions, are known throughout the world.
However, most of recent armed conflicts are of a non-international character (for instance, the conflicts in Sri Lanka, Sudan, Colombia and Afghanistan today); and when we reflect on the role of the Geneva Conventions today, we must do so with that fact in mind. Conflicts of this kind vary greatly. They may be traditional civil wars, spill-over conflicts or multinational/internationalized non-international armed conflicts (i.e. armed conflicts in which third States intervene to assist government armed forces against organized armed opposition groups).
Article 3 common to the four Geneva Conventions – common Article 3 – deals with such situations. It was the first treaty provision to specifically address non-international armed conflicts. Common Article 3 is, in many respects, a mini-convention within the Conventions. Given the prevalence of non-international armed conflicts, common Article 3 is of the utmost importance. It establishes a set of fundamental rules that must be followed in all circumstances. It sets out minimum legal standards for the treatment of all persons in enemy hands, regardless of how they may be classified, legally or politically, or in whose custody they may be. Clearly, no one can be seen as or treated to be outside the protection of the law. Humane treatment must be ensured for everyone
Common Article 3 has been supplemented in a number of important areas by the 1977 Protocol II additional to the Geneva Conventions (Additional Protocol II). Despite this development, a number of gaps and ambiguities remain in IHL governing non-international armed conflict.
Firstly, determining if and when a particular situation amounts to a non-international armed conflict can be difficult – factually and, sometimes, legally. It can, for example, be difficult to ascertain the level of violence that exists or the extent to which an armed group is organized. These are essential in assessing whether the intensity of the fighting meets the definition of ‘armed conflict’ or if the armed group in question qualifies as a party to the conflict. Common Article 3 does not offer much guidance in these areas. The lack of clear criteria has sometimes been used by parties to refute the existence of an armed conflict, thereby denying the application of IHL altogether, and depriving those who are affected of the essential protection to which they are entitled. International tribunals, particularly the International Criminal Tribunal for the former Yugoslavia, have helped to clarify some issues but significant questions remain.
Secondly, treaty law still falls short of meeting some essential protection needs in non-international armed conflict. For example, the rules governing the conduct of hostilities are very rudimentary and no detailed rules exist on enforcing the law in non-international armed conflict. The progressive emergence of new customary rules has filled some of these gaps.
Finally, there are areas in which both treaty and customary law are silent. How should these gaps be filled? For example, while customary IHL prohibits the arbitrary deprivation of liberty, it gives no details on how this prohibition must be understood in non-international armed conflict. Common Article 3, Additional Protocol II and customary IHL do not provide a detailed regulatory framework of procedural safeguards governing internment. The ICRC proposed a set of procedural principles and safeguards that should — as a matter of law and policy — be applied as a minimum to all cases of deprivation of liberty for security reasons. This document has served, and continues to serve, as a basis for calibrated ICRC interventions and proposals in a range of operational contexts.
As a consequence of the traumatic events of 11 September 2001 and their aftermath, the Geneva Conventions and IHL have come under close scrutiny. The so-called " global war on terror " raised important issues about the law, its meaning and its implementation. These issues forced many actors, including the ICRC, to rigorously examine IHL to determine whether the legal framework provided by it, for the protection of victims of armed conflict, was adequate.
In a number of States, this led to a reassessment of the balance between the requirements of State security and protection of the individual. In many cases, actions were taken to the detriment of the individual. To give just one example: after all the improvements in the international standards governing the treatment of persons deprived of liberty, the work of many decades, discussions on the permissibility of torture in certain situations have resurfaced, despite the fact that this abhorrent practice is prohibited in all circumstances and is a crime under IHL and other bodies of law.
It is our strong belief that the balance between military necessity and considerations of humanity, that underlies the provisions of the Geneva Conventions and the Additional Protocols, remains appropriate despite the features of the post-9/11 world and despite controversies on distinct issues of the law. IHL does not prevent States from confronting the threats posed by terrorism:
Under IHL, persons engaging in acts of terrorism in the context of an armed conflict (labeled by some States as unlawful combatants or more correctly " unprivileged belligerents " ), lose protection from direct attack while taking a direct part in hostilities. This means that they may be targeted.
Such persons may also be detained for imperative reasons of security as long as they rep resent a security threat and, if necessary, for the duration of the armed conflict, provided that the pertinent procedural principles and safeguards are respected.
In addition, as laid down in Article 5 of the Fourth Geneva Convention, a protected person who has been interned in the context of an international armed conflict may be considered to have forfeited certain rights and privileges, the exercise of which would be prejudicial to the security of the State. In such situations, certain fundamental safeguards of treaty law and customary international law remain applicable.
Persons engaging in acts of terrorism may also be criminally prosecuted, not only for war crimes but also under the domestic law of the detaining State, for having taken part in the hostilities.
With these avenues available to States, it is not clear to the ICRC what additional measures should or can be applied to so-called " unlawful " combatants without running the risk of seriously violating basic standards of humanity. In other words, what is lacking? Obviously, we do not subscribe to the view that standards prohibiting torture and other forms of ill-treatment should be revisited. We also do not believe that judicial guarantees should be relaxed as fair trial is a fundamental safeguard of international law.
It is our opinion that respect for human dignity is, and should be seen to be, a long-term security investment. This view seems to be gaining ground again, and that is an encouraging sign. IHL, and the Geneva Conventions, remain relevant, even when such armed conflicts take place within a broader “fight against terrorism”.
Ladies and Gentlemen,
Looking at the reality of today's con flicts, it seems that much of the suffering that occurs is not due to a lack of rules. Even the most fundamental rules of IHL are sometimes flouted by State armed forces and by non-State armed groups. Instances of murder, forced disappearance, torture, cruel or inhumane treatment, rape and other forms of sexual violence are lamentably common during armed conflict. The reasons for such non-compliance are varied but they include far too often the absence of political will to respect and ensure respect for the law, as well as a lack of implementation of existing obligations and impunity for violations.
In light of these realities, the single most important action to address the challenges facing the Geneva Conventions, and IHL more generally, is to work even harder to ensure that existing rules are observed. If these rules were followed, much of the suffering caused by armed conflict could be avoided. All High Contracting Parties have a particular role to play in this regard, because of their obligation to ensure respect for the Geneva Conventions.
We consider the Geneva Conventions to be no less relevant in 2009 than in the past. But that does not mean that the law requires no further clarification or development. Difficulties remain - in the application and interpretation of the law - which, we believe, can be addressed. Those related to non-international armed conflicts have already been mentioned. Permit me to cite a few more examples.
1. There are various challenges related to the conduct of hostilities. One is the growing participation of civilians in armed conflict. Throughout history, civilians have contributed to the general war effort, for example, by producing and supplying weapons, equipment, food, by providing shelter, or by offering political and financial support. In recent times, however, civilians have become more involved in activities closely related to actual combat; and this contributes to a blurrin g of the distinction between civilians and combatants. As a consequence, it seemed necessary to the ICRC that the notion of ‘direct participation in hostilities’ under IHL be clarified. This is the standard that is used to determine when civilians lose their protection against direct attack. As you may know, the ICRC recently released a document outlining interpretative guidance to facilitate a coherent interpretation of this notion.
The guidance document was developed after 6 years of intense expert consultations. It does not reflect a unanimous or necessarily a majority opinion of the experts who were consulted, as some very distinct issues remained controversial. The document sets out the ICRC's recommendations for interpreting the notion of ‘direct participation in hostilities’ under IHL should be interpreted in contemporary armed conflict. The hope is that these recommendations will be put to use where it matters, in the midst of armed conflict, and will result in better protection for the victims of those conflicts.
2. Another issue is the growing use of private military and security companies. These companies are being hired to carry out an increasingly diverse range of tasks, bringing them nearer to the heart of military operations and into close proximity with persons protected by IHL. The tasks undertaken by such companies sometimes include actual combat operations. Whatever one’s views on the legality, usefulness or wisdom of using such companies, it is vitally important that they be held to account for their conduct.
It must be emphasized that States cannot absolve themselves of their obligations and responsibilities under IHL by resorting to the use of private military and security companies. The responsibilities incumbent upon States remain even if various aspects of war are outsourced to private entities. In addition, these companies themselves have a role to play in the prevention of violations; for examp le, they can ensure that they hire only suitable individuals and that all their employees are given the proper training.
In order to address these and other issues, Switzerland, in cooperation with the ICRC, undertook an initiative to clarify and reaffirm the law applicable to private military and security companies and to develop recommendations to enhance State control over such entities. A consultation involving 17 States resulted in the adoption of the " Montreux Document " being finalized in September 2008. This document outlines how the Geneva Conventions should be read in relation to private military and security companies. Since September 2008, 14 additional States have expressed their support for the “Montreux Document”. We hope that more States will give their backing to the document and at some point adopt a regulatory framework that will increase the accountability of private military and security companies.
3. The final challenge I would like to highlight is related to the military operations conducted by multinational forces. Such operations raise a number of issues that require further reflection. For example, how do we determine when multinational forces are party to a conflict and, thus, trigger the application of IHL? If such forces are parties to an armed conflict, the ensuing question is whether IHL governing international armed conflict or that governing non-international armed conflict applies? On what basis may multinational forces detain persons? What are the standards that apply to the treatment of these detainees and what rules govern their transfer? How are the different legal obligations in combined operations to be reconciled? What is the interplay between the obligations imposed by IHL and those imposed by international human rights law? In light of challenges such as these, Denmark has taken an initiative to identify a common approach to the handling of detainees in multinational operations. These questions are of pertinence for UN operations as well.
The Geneva Conventions remain the cornerstone for the protection and respect of human dignity in armed conflict. They have helped to limit or prevent human suffering in past wars, and they remain relevant in contemporary armed conflicts. Common Article 3 is a key provision of IHL and is crucially important today because of the prevalence of non-international armed conflicts.
The Geneva Conventions are, however, only one part of the IHL framework and there remains work to be done to clarify and possibly develop this framework in order to address new threats, new actors and new means and methods of warfare. The ICRC is committed to studying and to contributing to initiatives for the clarification or development of the law with a view to reinforce existing protections. We fully understand the need to prepare for the future.
But looking ahead should not cause us to lose sight of the immediate need to implement, apply and enforce the Geneva Conventions today. Indeed, if the rules in existence were observed, most of the suffering caused in the course of armed conflicts today could be avoided.
IHL may not be a perfect legal regime. This is, of course, hardly surprising given that it aims to impose legal checks on the conduct of war. Yet, as it is premised on a subtle balance of military necessity and the considerations of humanity, it is the only legal regime that can aspire to the alleviation of human suffering during war. Some of its specific rules may be in need of reform, but the gist of the Geneva Conventions is as pertinent today as it was 60 years ago.