How to Update the Law of War to Address New Challenges on Today’s Battlefields?
In the words of the president of the ICRC, Peter Maurer, «the normative legal framework [has never] been so strong and comprehensive», referring to contemporary international humanitarian law during his speech on the occasion of the launch of the updated Commentaries on the First Geneva Convention in April 2016. At the same time, however, he pointed to the fact that «[n]ot enough countries, not enough armies, not enough armed groups, are abiding by those fundamental human values enshrined in the Geneva Conventions.» Similar concerns were also expressed by the Swiss Federal Department of Foreign Affairs (FDFA): «The main problem in contemporary armed conflicts is not the lack of norms but rather the widespread flouting of those that already exist.» Both of these statements set out that an essential issue of international humanitarian law (IHL) is its poor observation and implementation. However, both statements also leave open the question of whether contemporary international humanitarian law, if observed, suffices without any additional rules.
The fundament of the rules of the conduct of warfare and the treatment of people hors de combat, were laid out over one and a half centuries ago with the adoption of the Geneva Convention in 1864. Since then, the ius in bello has been steadily advanced and adapted to contemporary developments in warfare. The most important milestones in this evolution were, among others, The Hague Conventions of 1899 and 1907, and the Geneva Conventions of 1949 with their additional protocols in 1977 and 2005. Looking into its development, particularly its milestones, it becomes clear that international humanitarian law is not exempt from development, but rather like other fields of law, is constantly changing while adjusting to new social realities. As an example, one could think of the development from the first Geneva Convention and the Martens clause to the conventions after WWII, but particularly at the insight that these conventions do not cover civil wars. For precisely this reason additional protocols were added in the 1970s to cover the issues of non-international conflict too. Yet also in the 21st century, there are many situations as well as technological and sociological developments that pose a challenge to IHL. In the current complex world, there are more internal than international conflicts or even a mix thereof, e.g. in Syria, where the distinctions between combatants, helpers and civilians is highly blurred, and atrocities occur with an unknown frequency, as can be seen from daily news dispatches from around the world. Hence, closely interconnected with compliance with IHL are the roles of actors. Classic IHL distinguishes between combatants and non-combatants. Yet, in contemporary conflicts this distinction appears in need of further refinement regarding the role various actors play in conflict.
Against this background, foraus – Swiss Forum on Foreign Policy launched «IHL 2.0», a call for ideas on future developments of international humanitarian law. From over a dozen submissions, foraus together with various external experts chose the most original and thought-provoking ideas and invited their authors to develop their ideas into concrete policy advices.
Two main strands of ideas emerged: The first concerns specific actors in conflicts, whereas the second relates to structural challenges of humanitarian law, particularly regarding compliance.
The first contribution Not a Target: Ensuring the Protection of Aid Workers points to the challenge that today most conflicts are fought between governments and armed groups within a State’s territory. This, again, impedes the enforcement of IHL and, in particular, the protection of aid agencies. To change this, the author proposes a standardization of legal protection of humanitarians as well as an independent body to monitor this. The intention behind all these submissions is to enhance and develop lacunae in IHL as well as to raise awareness of the struggles and challenges with regard to the enforcement and the respect for IHL.
The author of the second contribution addresses the topic of attacks against news providers in conflict. In order to bring to attention the need for enhanced protection of journalists in conflict zones, the paper introduces the Swiss Initiative for the Protection of News Providers Covering Armed Conflicts, composed of a «legal memorandum of understanding… pointing out the law applicable to journalists during armed conflicts», and a «tailor-made training course for both military personnel and journalists… on legal and practical aspects relevant to the general protection of news providers in regions of armed conflict.»
Together with the fourth and fifth, the third approach submits concepts on how to improve compliance of IHL on the structural level. In pursuit of respect for IHL by all actors in non-international armed conflicts, the proposal Rules and Realities: Reducing the Discrepancies with Regard to International Humanitarian Law suggests not only to ensure to hear all non-participating actors in peace-conferences but, additionally, to conclude particular agreements to enable «the establishment of specific and realistic sets of rules applicable to a particular conflict situation» and in this way to increase «the likelihood of compliance with jointly agreed humanitarian norms.»
Based on the assumption that public opinion is a central factor regarding the compliance with IHL, the fourth proposal entitled An Imperfect but Pragmatic Law: Encouraging War Criminals? advances the idea of classifying and weighing certain IHL violations as well as, highlighting «positive attitudes and trends towards a better respect for IHL».
Altogether, the intention behind all these submissions is to enhance and develop lacunae in IHL as well as to raise awareness of the struggles and challenges with regard to the enforcement and the respect for IHL. Additionally, in a somewhat provocative way, each proposal aims at sparking interest and a discussion about the current state and future of IHL, which again, should serve the strengthening of its core idea to limit the use of violence and to minimize suffering in war and conflict.
Daniel Högger, Senior Policy Fellow at foraus
Geneva and Zurich, September 2017