Drawing on Custom: Future Prospects for International Humanitarian Law
Hoffman, Michael, Harvard International Review
MICHAEL HOFFMAN is Officer for International Humanitarian Law for the American Red Cross.
The opinions expressed in this article are solely those of the author and not necessarily those of the American Red Cross.
International humanitarian law is the body of rules and principles used to save lives and alleviate suffering during armed conflict. Over the past 50 years we have built a sizable volume of treaty law to define and regulate battlefield conditions. Though to some the steady flow of shocker headlines may suggest failure, these treaties actually have reached a high level of development, perhaps the highest that we can hope to attain for at least another generation. Indeed, with the advent of new kinds of weapons and new tactics of warfare, international humanitarian law (IHL) must adapt. For it to adapt properly though, it must return to its origins, to a time before "treaty-based" solutions, when nations recognized and followed various universal "customs." It is now time to revive a forgotten yet potent legal strategy to blunt the effects of war.
Before revisiting the legal methodology of an earlier time, it is best to summarize the present state of international humanitarian law. The four Geneva Conventions of 1949--the most recent revisions of a series of treaties dating back to 1864--are the principle foundations of modern IHL. These treaties establish detailed terms for the protection of wounded, sick, and shipwrecked members of armed forces, prisoners of war, and civilians caught up in war zones or living under enemy occupation. Military medical personnel and field staff of the International Red Cross and Red Crescent Movement are accorded special authority to render assistance to victims. With some limitations for national society staff, these personnel are authorized to rely upon the Red Cross and Red Crescent emblems for protection from attack in carrying out their work. Other relief organizations and civilians spontaneously coming to the aid of the wounded also are entitled to a measure of protection under the Geneva Conventions.
The primary focus of the Geneva Conventions was to establish rules for protection, sometimes known as Geneva law. The Hague Conventions of 1899 and 1907 were the first methodical attempts to regulate the weapons and tactics of war, and these rules, applying to the "means and methods of war," are sometimes known as Hague law. Hague and Geneva law were brought together in 1977 as part of two protocols which were meant to update the Geneva Conventions. These two protocols added detailed regulations for military operations and expanded legal provisions for the protection of war victims.
Other important Hague law treaties followed, such as the 1980 UN Convention on Certain Conventional Weapons and, most recently, the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction. This important matrix of Hague and Geneva law is unlikely to see major improvement for a long time to come. Except for the occasional evolution of treaty law to account for weapons technology, emerging challenges will demand creative efforts to enforce existing rules, not inventive efforts to devise new ones.
But if we adhere only to the modern treaty-based blueprint, we cannot readily apply Hague and Geneva rules to some situations that intuitively look like war. Most provisions of the Geneva Conventions and Hague rules have express application only during armed conflict between states--not, for example, during civil war within a state. (The term "armed conflict" covers armed hostilities and military occupation, as opposed to the narrower term "war," which requires a formal declaration of hostilities.) Though a small but important section of the Geneva Conventions sets out humanitarian rules for non-international armed conflict, as do the provisions of Protocol II to the Geneva Conventions, the present treaty-based law still is lacking in that respect. …