The laws of war which exist today have been evolving for more than 100 years. They are to found primarily in the four Geneva Conventions of 1949: Convention Relative to the Protection of Civilian Persons in the Time of War; Convention Relative to the Treatment of Prisoners of War; Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; and the Convention for the Amelioration of the Condition of the Wounded and Sick, Shipwrecked Members of the Armed Forces of the Sea. In 1977, two additional protocols were added. While the Geneva Conventions have over 159 parties, the 1977 Protocols have few adherents.
Three important principles underlie this body of international humanitarian law. The first principle is that of limitation: armed forces are not free to pursue their objectives by any means which they consider necessary or convenient. Military utility is always subject to the broader interests of humanity. The second principle is that of distinction: in wars, only military personnel and property can be targeted. It is permissible to inflict harm on civilians only if it is an unavoidable by-product of an attack on a military target. The third principle is that of proportionality. It is unlawful for an armed force to engage in any attack or operation if the anticipated suffering of either soldiers or civilians is disproportionate to the military gains which might be made. Activities which inflict excessive collateral damage on civilians are therefore outlawed, as are those which cause unnecessary suffering and casualties amongst the soldiers themselves.
On the basis of these three principles, specific laws have been established to prohibit actions such as the rape, torture and killing of civilians. Under the laws of war, combatants must also grant access to civilian populations for the purpose of humanitarian assistance.
Soldiers are also protected by the laws of war. Military prisoners must not be mistreated, while the use of weapons such as exploding bullets and chemical agents has been outlawed or restricted. Legal provisions also exist to encourage and enforce compliance with the laws of war. According to the Geneva Conventions, combatants must be trained in international humanitarian law, while commanders are responsible for controlling the conduct of their troops. Furthermore, violators must be disciplined.
While there is some overlap between international humanitarian law and international human rights law, there are also some significant differences. By permitting acts of violence under specified circumstances, the laws of war create exceptions or derogations to human rights law. Under human rights law, for example, no-one shall be "arbitrarily deprived" of life. However, the killing of civilians by a lawful act of war does constitute a violation of human rights law. In addition, derogations from many basic human rights, such as freedom speech and movement, are expressly permitted by human rights treaties in times of national emergency and armed conflict. Finally, serious violations of the laws of war can be prosecuted by any state which is party to the Geneva Conventions. No similar enforcement mechanism exists in most human rights treaties.
The Rule of the Red Cross
The International Committee of the Red Cross (ICRC) is the guardian of humanitarian law. The Geneva Conventions and Protocols were established at diplomatic conferences convened by the ICRC.
The ICRC also breathes life into the written rules of war by providing protection and assistance to civilians, as well as wounded and imprisoned soldiers. In 1993 alone, the organization visited 144,000 detainees in 55 countries. Through its central tracing agency, the ICRC located 10,000 missing persons and reunited 2,200 families. It has acted as a conduit for an astonishing 4.7 million messages between family members. In addition, the ICRC devotes approximately half of its annual budget to the provision of specialized medical services, food, shelter and other essential items to populations affected by war.
The ICRC's neutrality and independence, strictly maintained for more than 130 years, have enabled the organization to assume a unique role in humanitarian affairs. While the ICRC assiduously promotes respect for the laws of war through research, publications, teaching and training activities, it does not always feature prominently in the international media. Unlike many human rights monitoring organizations, which operate through public disclosure and condemnation, the ICRC almost always attempts to gain compliance with the laws of war by means of confidential diplomacy. In the effort to prevent and resolve refugee problems, these different forms of action have complementary roles to play.
Conforming to Norms
How can states and soldiers be persuaded to respect the laws of war? In times of peace, most people obey the law because they perceive an advantage in doing so. Guilt and shame, family and peer pressure act as powerful enforcement mechanisms. These social and psychological pressures are supplemented by the activities of institutions such as the police, courts and prisons, which provide a strong disincentive to potential law-breakers.
In the case of the laws of war, the situation is not so simple. The recent creation of an international war crimes tribunal for Rwanda and the former Yugoslavia represents a significant attempt to hold individuals accountable for their actions. But as the ICRC has observed, "today's combatants are all too often ignorant of the rules of international humanitarian law." It is therefore imperative that decision-makers, military officers and soldiers be exposed to and trained in the laws of war. This, however, can be a difficult task, given the number of temporary conflicts being fought by irregular armies and militia groups with decentralized structures and weak lines of command, as well as the limited application of the Geneva Conventions to situations of internal conflict.
If they are to influence behavior, human principles must also be internalized-not just by decision-makers and combatants, but by countries and communities as a whole. While politicians and military leaders may in some countries act is if they are a law unto themselves, experience has demonstrated that the behavior of combatants is often conditioned by the norms and values of the societies in which they live. Reinforcing respect for the laws of war will evidently not prevent the suffering and destruction which is inherent in all armed conflicts. But by reducing the threat which military activities pose to the safety and security of civilian populations, it has an important role to play in the prevention and containment of such suffering.
From The State of The World's Refugees 1995: In Search of Solutions. Copyright United Nations High Commissioner for Refugees 1995. Reprinted by permission of Oxford University Press, Inc.
