Changing War, Changing Law

By Roberts, Adam | The World Today, August/September 2009 | Go to article overview

Changing War, Changing Law

Roberts, Adam, The World Today

The sixtieth anniversary of the four Geneva Conventions on the protection of war victims is an occasion for both celebration and taking stock. There is much to cheer, but there is also a huge question about the relevance of the conventions to the ever-changing phenomenon of war. Many western leaders have suggested that they need to be re-negotiated. However, by little-noticed process of common law, the Conventions have already adapted, although incompletely, to changes in war. The question now is: should there be further adaptation or a completely new convention?

tHE ATTEMPT BY LEGAL AGREEMENT to limit the inhumanity and destructiveness of war is a difficult enterprise. Clausewitz expressed the perennial doubt about the project when, in his classic On War, he referred to 'certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom.' Two centuries later, such doubts persist about the laws of war - now more commonly called international humanitarian law - so what exactly is there to celebrate?


The four 1949 conventions address a limited range ofmatters relating almost exclusively to inter-state rather than civil wars:

* wounded and sickmilitary personnel onland;

* wounded, sick and shipwreckedmilitary personnel at sea;

* prisoners ofwar;

* civilians.

Contrary to common belief, they do not regulate war in general, or provide rules of the game: they do something more limited and practical, protecting particular classes of people. These four agreements have survived their first sixty years remarkably well. Three grounds for celebration stand out.

Universality. When, on August 12 1949, the representatives of sixty-four states, at a diplomatic conference in Geneva, approved the text of the four conventions, would any delegate have dared hope that sixty years later, well into a newmillennium, the treatieswould still be the central pillars of the laws ofwar, and all the states in the world would have become parties to them? In fact 194 states are now parties to the Conventions; two more than the currentmembership of theUnitedNations.

Core of law. The four conventions have become the core of an expanding body of law. The two additional protocols approved in 1977, which address international and civil wars, are farmore thanminor add-ons. Protocol I in particular spells out in unprecedented detail the international rules governing certain aspects of warfare, and is notablymore ambitious than the four 1949 conventions onwhich it is based.

Subsequent treaties prohibiting the use of antipersonnel landmines, and now cluster weapons, reinforce the sense that the law is not static but expanding, and is addressing important issues such as those weapons that kill indiscriminately, often long after a war is over.

Implementation. The final andmost important ground for celebration is that despite all the well-known difficulties, and many violations, there have been significant acts of implementation both by states and international bodies. Many people, including thousands of prisoners, have benefitted. International bodies, including theUN, have come to see the Conventions as important, and have set up criminal tribunals and other implementationmechanisms.


However, there is a ghost at this sixtieth anniversary feast. In the past six decades, conflict has changed in ways that challenge the image ofwar that pervades the Conventions as a contest between organised states and their uniformed armed forces. In fact almost all the wars since the SecondWorldWar have been civilwars, inwhich at least one side, and sometimes more than one, was not a state.

Civilwars are notoriously bitter: unlikemany international conflicts, their winners often aim to take all, leaving little room for moderation or compromise; the insurgents may lack secure territory and resources to hold prisoners in safe and decent conditions; the state may be reluctant to dignify its opponents with the status of prisoners of war; and keeping civilians out of the conflict can be especially difficult.

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