The Laws of War : Utopia or a Necessity?

The Laws of War and the flagrant violations

The battle of Solferino was the starting point of the current Laws of Protection in warfare or disaster struck areas. As he writes in his book, "A Memory of Solferino," the Swiss Henri Dunant did not witness the battle. (His statement is contained in an "unpublished page" included in the 1939 English edition published by the American Red Cross). He did tour the field, however, following the battle, and was greatly moved by what he saw. Horrified by the suffering of wounded soldiers left on the battlefield, Dunant set about a process that led to the Geneva Conventions and the establishment of the International Red Cross, ICRC, later giving rise to independent national Red Cross Societies, Red Crescent Societies, the Star of David, the Lion and the Sun (Persia) under the auspecies of the Federation of the Red Cross and the Red Crescent societies, with the exception of the Star of David and the former Iranian humanitarian organization which was prohibited after the fall of the Shah.

For many decades the ICRC and the Federation had a totally unique position to work unattacked to protect, to give relief and health care victims of war and to evacuate civilians and soldiers, wounded in combat no matter what army, to visit prisoners of war, to inspect concentrations camps and institutions of detention and incarceration without trials because of the stern provision of Neutrality and Impartiality. Abuse or offensive conditions were discussed with the local and national authorities but with full discretion,the ICRC delegates were often allowed to visit detention centers and POW camps improvements were negotiated but without a word leaked to the media which would jeopardize the delicate relations. No regime wished to be publically accused of forbidding the Red Cross presence. Today is different. Oppressive regimes can choose to ignore the Red Cross completely, forbidding all protection work and even denying relief work in order to starve their own subjects to submission.

I have been working under the former terms myself and found it both productive and rewarding. By discretion political prisoners or victims of arbitrary terror could be freed withou risking to be officially declared "disappeared", desaparecidos, and assisted to leave the country with Red Cross Laissez-Passer documents or Red Cross Passports on the condition that a host country agreed to receive them.

Gradually the national Red Cross Societies often fell into the hands of the authorities, thus giving a dictator´s wife as the national chairman of the National Red Cross prestige and status. This alarming development had to be accepted and we often had to "lick the boots" of the generals at lengthy banquettes or lavish events in order to be able to do our fieldwork among the most vulnerable and poorest victims without any intervention.

By relieving oppressive regimes of their responsibility to care for their povertystricken or persecuted population or refugee colonies, we may conserve the regime and assist it to stay in power. On the other hand, we may save the lives of those who will be able to make a change in a longer perspective...

The Geneva Conventions comprise four treaties, and three additional protocols that establish the standards of international law or the humanitarian treatment of the victims of war. The singular term Geneva Convention denotes the agreements of 1949, negotiated in the aftermath of the Second orld War (1939–45), which updated the terms of the first three treaties (1864, 1906, 1929), and added a fourth treaty. The articles of the Fourth Geneva Convention (1949) extensively defined the basic rights of prisoners (civil and military) during war; established protections for the wounded; and established protections for the civilians in and around a war zone. The treaties of 1949 were ratified, in whole or with reservations, (the US, inter alia) by194 countries. The Geneva Convention also defines the rights and protections of non-combatants.

The Refugee Convention of 1951 secured the right to seek and to be offered asylum for refugees from World War II. The additional 1967 Protocol enfathomed all refugees but has not been accepted by the USA and other countries which still, from a legal aspect, are under no obligation to give refuge to anyone persecuted, unless the persecution is caused by the war fifty years ago. The US and Russia had no problems to send back refugees to El Salvador or Afganistan with horrible consequences respectively. Each and every European nation can be accused of a similar conduct but to a lesser extent.In the latter case it is an obvious violation of the Convention and from a legal point of view, a criminal offense, since most European countries are party to the extended 1967 Protocol of the Geneva Convention.

Warfare has changed since the early days of the Laws for protection. With the exception of the war between Iran and Iraq the majority of wars are civil wars, i.e interior warfare between goverments and rebels, but often turned into a war of terror against civilian population in general in order to scare the people to submission.

The most appalling fact is that the Laws of War were created primarily to give protection to and to safeguard civilians, but to little avail. It has turned out that 85% of contemporary warfare has the civilians as it´s primary target group.

The Geneva Conventions were followed by the Hague Convention with laws preventing the use of massdestructive, biochemical and nuclear weapons, among ohters.

So, do these conventions matter at all? Red Cross or Red Crescent veichles, staff (often voluntaries) and camps are under attack continuously. Militaries are using Red Cross Logos on veichles in order to transport weapons or troops. This development has been speedy and gradually escalating since the 1990´s.

Although the constant violation of the Laws of War (which are not applicable in a Civil War) the Crimes against Humanity can be processed at the Hague Tribunal based on the provisions of the laws. It may not suffice but without them everything would be allowed without any consequences at all.

The Conventions on Human Rights UN and the European) are spin offs of the Geneva Conventions with ideological roots in the eighteenth-century Enlightenment and the French Revolution, inter alia, and although continously ignored by many they are an integral part of domestic legislation in many nations. Maybe we may find comfort in this fact and that we have legal instruments to protest against violations of the human rights, nationally and internationally.

Without them there would not have existed or exist Civil Right´s Movements, as we understand them, at all. Nor any laws against gender or ethnic discrimination domestically or internationally.

The Conventions need to be extended, but, most important of all, we must find a way to implement dire consequences when they are being violated.

Douglas Modig

2012