75th anniversary celebrations in Geneva with Security Council. Photo: Swiss Foreign Ministry ©.
August 2024 marked the 75th anniversary of the four Geneva Conventions which form the basis of international humanitarian law (IHL). The dream of five Swiss men (Henri Dunant, Louis Appia, General Guillaume Henri Dufour, Gustave Moynier, Theodore Maunoir) was realized and codified in the hope of “civilizing” the way wars were fought. Separating civilians from combatants, protecting schools and hospitals, treating prisoners of war humanely, all were included in international treaties that were ratified by 196 countries, all U.N. member states as well as two observers (the Holy See and the State of Palestine).
And now? “International humanitarian law is probably violated every day in the world,” the president of the International Committee of the Red Cross (ICRC), Mirjana Spoljaric Egger, said on a local Geneva broadcast recently.
How to reconcile the universal, formal acceptance of IHL with its current systematic violations? While there are bodies instituted to punish IHL violations such as the International Court of Justice (ICJ) as well as the International Criminal Court (ICC), daily violations occur from Ukraine to Gaza and the West Bank, to Yemen and Sudan and elsewhere with few punishments for violators.
As the chief legal officer of the ICRC wrote on the current situation, “Seventy-five years after the creation of the Geneva Conventions, armed conflict today and the rules of international humanitarian law (IHL) that govern it risk becoming an alternative moral and ethical landscape, a space in which countries consider themselves free to apply an extraordinary degree of military force while being able to maintain the stance and veneer of law-abiding actors.” She added; “My fear is that too often the original purpose of the Geneva Conventions is being set aside and the rules turned on their head. Instead of being interpreted to protect civilians, they are invoked to justify a level of death, injury and destruction that IHL was created to avoid.”
The celebrations of the 75th anniversary reflected the “alternative moral and ethical landscape.” Member states of the United Nations Security Council were invited to come to Geneva on 25 and 26 August for a celebration. (As well as Geneva’s being the site of the ICRC’s headquarters, Switzerland is the depositary state for the Conventions and their additional protocols.). All member states sent representatives except one, the Russian Federation. Since it resumed European sanctions against Russia from March 2022, Switzerland has been considered by Moscow to be an “unfriendly” country. Without Russia and because of increased violations, the Geneva celebrations were rather muted.
Besides increased violations of IHL, the very role of IHL is being called into question. Samuel Moyn, Professor of Law and History at Yale has written and argued against humanitarian law. As he said in an interview; “In that Christian tradition [of the Swiss like Dunant who was part of the Protestant Revival Movement in the late 19th century], we should prioritize the reduction of the suffering that our violence causes, as if this would exonerate us from the deeper evils of war itself. If only it were true!”
For Moyn, IHL has not exonerated us from “the deeper evils of war itself.” Far from it. Moyn argues that even conceiving of humane war increases the possibilities that countries will go to war. If there were no IHL, Moyn posits, countries would hesitate before entering into armed conflict because of the ensuing uninhibited violence. A similar argument was made in Geneva years ago by Professor David Kennedy of Harvard Law School, much to the consternation of ICRC delegates in the audience.
Criticizing IHL, like criticizing human rights, goes against deep-seated liberal values. As the ICRC motto for the 75th anniversary states, IHL is “The one set of rules we all agree on.” Professors Moyn and Kennedy are not part of that we.
Opposed to Moyn and Kennedy, Professor Andrew Clapham of Geneva’s Graduate Institute has argued for IHL, and the positive role of the Geneva Conventions. Clapham believes that the ICJ and ICC’s roles to hold violators accountable has had positive effects. “The fact of talking about violations must give people pause for thought, including leading to examples of rises in compliance,” he states. A simple example would be limitations on President Putin’s and others’ travels to countries ready to cooperate with the ICC or the countries themselves arresting and prosecuting the accused as part of their obligations under the Geneva Conventions. Clapham would argue that some actors change their behavior in order to avoid getting caught in this net.
Moreover, more than just respecting the laws of war during conflict, Clapham challenged those countries which supply material to violators. “Each and every state that allows the transfer of arms is obliged to avoid contributing to or facilitating violations of the Geneva Conventions,” he said in addressing members of the Security Council during the Geneva Anniversary celebrations.
In addition, while all states that have signed the Conventions and Protocols are legally responsible for complying with the treaties (which contain 576 Articles), organizations such as the award-winning Geneva Call (GC) and Fight for Humanity have included armed non-state actors (ANSAs) in promoting IHL. It is in the interest of all parties, they argue, to respect the basic rules of the Convention although the treaties can be signed only by states. Geneva Call originated revolutionary Deeds of Commitment which leaders of ANSAs could sign to demonstrate their willingness to respect certain aspects of IHL. (Full disclosure: the founder of GC and its director for 20 years Elisabeth Decrey Warner is my wife.) Numerous groups have signed the Deeds and generally followed their provisions, even beyond what they might be legally bound to do. As such, several ANSAs have been included in the moral and ethical landscape of IHL.
There is much talk in the United States today that no one is above the law. (Describing Donald Trump as living in “an alternative moral and ethical landscape” is much more elegant than calling him “weird.”) States, like individuals, should not be above the law. 196 countries voluntarily ratified the Geneva Conventions. But not all states are fulfilling their obligations. The ambivalent 75th anniversary of the Conventions highlights the current softness of international law as well as the general decline of the influence of the United Nations and the role of multilateralism.
“The one set of rules we all agree on” has been fractured. What can “we all agree on”? Targeting civilians, denying them life’s necessities, torturing innocents should be high on every state’s agenda. The Geneva Conventions are a set of rules. Beyond those rules are basic values that all governments should respect. They are essential to our common humanity. The 75th Anniversary of the Conventions, however muted, should serve as a reminder of that commonality.
