The Geneva Conventions stagnate while warfare evolves.

28 October 2024 – Mukesh Kapila

First published 28 October at The National News

Palestinians mourn for relatives killed in Israeli airstrike on Al Bureij refugee camp. Image: EPA via National News.

When Salah Al Din (known as Saladin in the West) was battling European Crusaders in Palestine, he suspended hostilities when his enemies sickened from dysentery. He sent his physicians, and his orchard’s juiciest plums to comfort his arch-opponent, King Richard of England.

The 12th-century warrior campaigned in Gaza, Golan, Aleppo, Beirut, Jerusalem, Damascus and Bekaa. What would he think of the present-day conflict in many of these places?

Salah Al Din also committed atrocities but learnt to minimise civilian harm and treat prisoners decently after realising that conciliation – not revenge – better achieved his aims.

The notion of forgiveness is lost from our modern rules-based order, which is centred around righting wrongs through prosecution and punishment. And so, retaliations dominate international relations, whether through aggression, punitive economic sanctions or the instrumentalisation of the UN and international courts.

Inevitably, the Palestine-Israel conflict or the civil war in Sudan are endlessly iterated as layers of hurt and injury that keep passions bubbling and no one gives way.

Salah Al Din showed extraordinary statesmanship to rise above this. He was inspired by his Islamic faith and the traditions of his region, a tumultuous mix of Arab, Kurdish, Turkish and Persian cultures.

He was not unique. Over millennia, all faiths and cultures have developed rules for limiting wars. Evolutionary psychologists explain why. Our species is hard-wired for violence, as glorified in countless sagas. So, saving humanity requires curbing war’s extremes. First, because mercy for opponents begets equal consideration for ourselves. Second, fighting without egregious cruelties helps eventual reconciliation and peace.

This is customary international humanitarian law (IHL) and it combines a duality of selfish and selfless considerations. Its modern codification generated the First Geneva Convention of 1864, which reached its current form in 1949. Its lead drafter, Jean Pictet of the International Committee of Red Cross, observed astutely that its wide acceptance came from “keep[ing] it realistic” as “nothing is more dangerous than unbridled humanitarianism”.

Further Geneva Conventions followed: Second, Third and Fourth, also in 1949, their Protocols I and II in 1977 and Protocol III in 2005. All countries are party to the Conventions, which apply to both international and non-international armed conflicts.

In summary, they protect people not participating in hostilities and impose limits on the means and methods of warfare. Their principles are clear but practical interpretation has always been contentious, and never more so than now.

Normalised across today’s record war-making are numerous anti-humanitarian behaviours: destroying livelihoods, water supplies and health care, or displacing, blockading and starving people while denying aid and attacking relief workers. Sexual violence, hostage taking, prisoner abuse and sundry other cruelties are not uncommon.

Why don’t the Geneva Conventions protect against such horrors?

To start, the Conventions stagnate while militaries evolve. The initial Geneva Convention reacted to first-generation warfare – the 1859 Battle of Solferino – and then limped to catch up with second-generation (First World War) and third-generation (Second World War) warfare.

The atomic bombing of Hiroshima and Nagasaki cruelly exposed their limitations and necessitated other conventions prohibiting nuclear, chemical and biological weapons as well as proscribing landmines and certain explosive armaments.

The Geneva Conventions were further challenged by proliferating fourth-generation warfare during the Cold War by the asymmetrical tactics of non-state actors, including anti-colonial insurgents.

Meanwhile, electronics, artificial intelligence, robots including drones, and materials and energy sciences have progressed apace. Innovations in data management, intelligence and surveillance compound the lethality of today’s hybrid or fifth-generation warfare.

We see the impacts most fiercely in Gaza and Ukraine because of another great shift: in the places we fight over. With most people living in crowded urban areas where strategic assets such as leaders and critical production facilities such as factories and power stations are located, fighters and civilians function cheek by jowl. So, war gets waged from – and retaliation visited upon – high-rise apartments and their underground bunkers and tunnels.

This causes justified outrage when innocents are caught in the crossfire. That women and children bear the brunt is not unexpected; they constitute 70 per cent of any war-affected population.

IHL demands a military-civilian distinction to be made, and so lawyers often sit alongside operational commanders to advise on targetting. The accuracy of modern weapon systems has also improved. But their deployment is still subject to the emotions and scruples of belligerents. These are the first to go in intense conflict, and war crimes occur through acts of omission and commission.

Meanwhile, war’s social context has also changed. Today’s warriors are not only totting guns in uniform. They sit in jeans directing drones or spreading hate and misinformation from remote laptops. Or they may manage criminal financial enterprises to benefit war-making projects. As the keyboard is now as mighty as the sword, does that turn conflict enablers behind the frontlines into legitimate targets?

This is a grey zone for the Geneva Conventions but an increasingly acute question as wars degenerate into whole-of-society undertakings.

Besides, the Geneva rules only apply in armed conflicts. But situations of no-war-no-peace are common, such as in Syria or Afghanistan. Most abuses are committed in contexts of chronic instability with lawyers arguing whether humanitarian or human rights law applies.

Meanwhile, the Conventions only enjoin combatants to do their best to protect civilians, but specify no formula for acceptable collateral damage. Neither do they direct that humanitarian dimensions override military imperatives.

So, for example, over 70 per cent of Gaza has been pulverised after one year of war, and 10 per cent of its people killed, injured or gone missing. Do the different proportions signify care by Israeli attackers to minimise casualties or, conversely a genocidal extermination strategy?

Thus, based on perspective, civilian casualties are either explained away or angrily condemned. For example, Hamas in Gaza and Hezbollah in Beirut are accused of using civilian shields in urban strongholds from where they fire rockets at Israel. Conversely, furious Israeli retaliation is seen as terrorising civilians en masse. Israel’s weaponisation of Hezbollah pagers could either be smartly targetting opponents directly or could constitute a war crime because of associated civilian damage.

Meanwhile, where do the Geneva Conventions stand on those providing weaponry and related lethal assistance to various theatres of combat? They are ambivalent on the application of the Conventions’ provisions to the sponsors of wars.

Such contradictions are rooted within the Geneva Conventions because their underlying ethos tolerates war while striving to make it humane. However, the reality is that wars are always hellish. The absurdity of humanising that is obvious. As our television screens testify, there are few clean ways to fight.

Reacting to criticism, considerable effort is going into fine-tuning the Geneva Conventions to the changing patterns of war. But that risks making their rules yet more complex, which paradoxically could license more sophisticated forms of brutality. It also risks making humanitarian relief more difficult, driving belligerents farther apart, and possibly lengthening and widening wars.

That would be a perverse legacy of the Geneva Conventions marking their 75th anniversary. Not to be stranded in the cul de sac of mounting inhumanities requires rising beyond narrow, legalistic provisions to an earlier era. Fortunately, we have a rich worldwide patrimony of customary IHL. A stocktake by the ICRC revealed at least 160 traditional customs that helped to control earlier wars.

A way forward is to encourage fighters to find inspiration beyond the Geneva Conventions by digging deeper into their own cultural decencies. A lesson from Salah Al Din, eight centuries ago.