There is an evolving global consensus that some acts of violence in warfare are not acceptable. But how in the world can we enforce that?
Headquarters of the International Criminal Court in The Hague, Netherlands.
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When one nation invades another as Russia did with Ukraine, or when one country attacks civilians and then in retaliation for attacks on its citizenry the other country launches disproportional violence, where does international law come in?
What good is international law if countries continue to violate its basic premises?
Even though going to war violates most international law, international humanitarian law (IHL) is designed to establish parameters for how wars can be fought.
So, paradoxically, while war itself is illegal except for under unusual circumstances such as when a country’s very existence is at stake, international humanitarian law establishes the dos and don’ts of what can be done during violent conflicts. (IHL deals with jus in bello, how wars are fought, not jus in bellum, why countries go to war.)
The basics of international humanitarian law have evolved over time.
The development of proportional response
One of the earliest sets of laws came out of ancient Babylon — which is now Iraq — around 1750 BC. The Hammurabi Code, named after Babylonian King Hammurabi, declared “an eye for an eye,” which was a precursor of the concept of proportional response.
Proportionality means if someone pokes out your eye, you cannot cut off his legs, hands and head and kill all his family and neighbors.
Most modern laws of war date from the U.S. Civil War and the Napoleonic wars in Europe. During the American Civil War, President Abraham Lincoln asked Columbia University legal scholar Franz Lieber to establish a code for conduct for soldiers during war.
At about the same time, after observing a particularly horrendous battle of armies fighting Napoleon, the Swiss Henry Dunant and colleagues founded the International Committee of the Red Cross which lay the groundwork for the Geneva Conventions, which govern how civilians and prisoners of war should be treated.
The basics of modern international humanitarian law can be found in the four Geneva Conventions of 1949 and their Additional Protocol of 1977. The purpose of the Conventions and Protocol is the protection of civilians by distinguishing between combatants and non-combatants and the overall aim of “humanizing” war by assuring the distinction between fighters and civilians.
The Geneva Conventions and current conflicts
The conflict in Gaza
Attacking a hospital: Bombing or attacking a hospital is a clear violation of the Geneva Conventions. The assumption is that hospitals are only to be used for medical purposes. Israel justifies its attacks on the Gaza hospitals by saying that Hamas uses them for military purposes — tunnels underneath, etc.
Civil targets are forbidden: The bombing of schools, like hospitals, is forbidden. The assumption is that schools and other civilian buildings will not be used for military reasons.
Civilians cannot be used as human shields: It is forbidden to mix civilians with the military in order to ensure that the enemy will not fire on the other’s civilians.
Forced displacement: An army cannot insist that a population must move, a sort of ethnic cleansing that was done by Stalin during World War II, and is being done by Israel in telling people to leave the north of Gaza.
Genocide: Any attempt to destroy an entire ethnic or religious group is considered genocide and covered by a separate convention.
Hostages: The taking of military hostages is permitted, but not civilian hostages. In addition, there are numerous regulations about how hostages are to be treated.
The Russian invasion of Ukraine
Cultural monuments: The destruction of cultural monuments is expressly forbidden. But, once again, the difficulty is if a cultural monument such as a church, is being used for military purposes.
Critical civilian infrastructure: The bombing of electrical grids or water processing plants is not permitted.
Treatment of prisoners of war: The Conventions set out specific ways that prisoners of war are to be treated as well as access to the prisoners by the Red Cross.
These lists above do not deal with issues such as the use of various weapons — nuclear, chemical, biological, drones or cyber operations or proportionality — the idea that retaliation should be in proportion to the original attack.
Enforcing the Geneva Conventions
But what happens when a country violates the Conventions?
Serious violations of international humanitarian law can be prosecuted by the International Criminal Court (ICC), established by the Rome Statute of 2002. The Court can prosecute those accused of genocide, crimes against humanity and war crimes on the territory of states party to the Rome Statute. It has so far indicted 52 people. The ICC announced an indictment for Russian President Vladimir Putin in March 2023.
The United States is not a party to the Rome Statute. Although it was influential in establishing the Court, it was one of only seven countries that voted against establishing the ICC. Israel is also not a party to the Statute and has indicated it will not cooperate with war crimes investigations. The government of Palestine has accepted ICC jurisdiction.
It is not easy to imagine how law can deal with violence and war. But numerous treaties and conventions have done just that. Many, many countries have voluntarily signed on to accept responsibility for their actions. International humanitarian law has set out very specific guidelines for what can and cannot be done in war. A court was established to punish those individuals who violate the law.
But the difference between the legal and the political is crucial here. What the law says can’t be done, what countries have said they won’t do are not easily put into practice, especially in emotional times of war. That doesn’t mean that the laws are irrelevant and that people who have committed war crimes will not be indicted, tried and punished. As of January 2022, the Office of the Prosecutor of the ICC has brought 30 cases before the Court and has issued 10 convictions and four acquittals.
Has the possibility of being brought before the Court changed the behavior of individuals during war? Impossible to say. But as the eminent Finnish legal scholar Martti Koskenniemi has written, international law is a “gentle civilizer.” The very existence of international law and international humanitarian law are very positive steps to protect the innocent, limit casualties and civilize conflict.
questions to consider:
- What is proportional response?
- What are two things not permitted under the Geneva Conventions?
- Do you think that countries should never be allowed to attack each other? Under what circumstances could it be justified?
Daniel Warner earned a PhD in Political Science from the Graduate Institute of International Studies in Geneva, where he was Deputy to the Director for many years as well as founder and director of several programs focusing on international organizations. He has lectured and taught internationally and is a frequent contributor to international media. He has served as an advisor to the UNHCR, ILO and NATO, and has been a consultant to the Ministries of Foreign Affairs and Defense of Switzerland as well as in the private sector.
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