Law of war stands tough test of time
30th Anniversary of the 1977 Protocols Additional to the Geneva Conventions. Opinion editorial by Philip Spoerri, ICRC Director for International Law and Cooperation within the Movement.
Thirty years ago, the major achievement of the First Additional Protocol was the rules it established on the conduct of hostilities. Among them is the crucial principle of distinction between civilians and combatants and between civilian objects and military objectives. Attacks on civilians – whether individuals or populations – as well as on civilian objects are expressly prohibited. The Protocol also clearly stated another important rule that " acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited " . The list does not end there.
Controversial at the time, but much less so today, were the Protocol's innovations regarding combatant and prisoner of war status. While some states felt uneasy about the changes introduced, they reflected the new reality of international relations – the phenomenon of guerrilla warfare. The same reality gave rise to another controversial aspect of the treaty – its definition of international armed conflicts, which was expanded to include wars of self-determination.
If Additional Protocol I was a step forward in adapting the law to new demands, Additional Protocol II – which supplements article 3 common to the Geneva Conventions – was the first ever international treaty devoted exclusively to the protection of persons affected by non-international armed conflicts. Its rules on fundamental guarantees for all those not involved in the fighting, on the treatment of persons deprived of liberty and on judicial guarantees for ind ividuals subject to penal prosecution represented a landmark in the development of international humanitarian law. The Protocol gave legal expression to a notion that is widely accepted today – that armed conflicts taking place within the confines of a country are a matter of international concern. To that end, the Protocol also established important rules protecting civilians from the danger of military operations in internal armed conflicts.
Yet faced with today's sanguinary conflicts in Iraq, Sudan and Colombia, to name but a few, and still in the shadow of the horrors in Rwanda and the Balkans in the 1990s, one might reasonably ask " so what? " What good is the law of war if it is neither applied nor enforced?
The short answer may be that the real value of the Additional Protocols lies less in the good they have achieved than in the yet greater evil they have helped to prevent. With 167 countries currently party to the first Additional Protocol, and 163 party to the second, there is a growing recognition that wars have limits, not least in the specific duty of care required towards civilian populations.
Of course, examples of flagrant violations of the Protocols – and of international humanitarian law in general – abound. Terror campaigns against civilians, the use of rape as a weapon of war, the recruitment of child soldiers, forced displacement – the list goes on – are, sadly, all too common features of contemporary conflict. The polarisation of world politics in the 21st century post 9/11 and the ultimate humanitarian consequences of what is often referred to as the " global war on terror " pose a huge challenge. The proliferation and fragmentation of non-state armed groups, who may have little or no regard for the law of war, poses another. But whereas accountability may once have been the exception rather than the rule in conflict, a wind of change in this regard is blowing ever-stronger thanks largely to a gro wing public awareness of international humanitarian law.
It was public pressure – and the collective shame of governments in failing to stop the carnage in both the former Yugoslavia and Rwanda – that effectively led to the establishment of the two ad hoc criminal tribunals for those countries in the mid-1990s. Despite their constraints, the tribunals represented a major step forward in ending the impunity of war criminals.
The establishment in 2002 of the International Criminal Court (ICC) in The Hague, the world's first permanent war crimes court, was the fruit of years of negotiations and legal wrangling. The ICC's first trial – of a Congolese militia leader, Thomas Lubanga, accused of war crimes relating to the use of children in that country's civil conflict – is currently underway. Charles Taylor, the former president of Liberia, is awaiting trial in The Hague for alleged war crimes relating to the conflict in Sierra Leone that ended in 2002. While the trial will take place in The Hague, it will be conducted by the Special Court for Sierra Leone. Taylor is Africa's first former head of state to be indicted for war crimes at the international level.
In addition, national legislators and courts are finally starting to live up to their respective responsibilities of ensuring that domestic legislation recognizes the criminal responsibility of those who violate international humanitarian law, and of actually enforcing such legislation. The message is clear: war criminals can no longer take impunity for granted.
But despite this undeniable progress, enforcement at both national and international levels is still a drop in the ocean. While the Geneva Conventions and the Additional Protocols provide a clear legal framework for the necessary restraints to prevent human suffering in armed conflict, the political will to fully implement them remains insufficient. Parties to conflict have in many cases no t yet realised the wisdom that applying and enforcing these legal restraints is in their own best interest: failure to prevent abuse against others ultimately lifts the safeguard against similar abuse in return.