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Our law


Since September 11, 2001, our body of international law has come in for a battering by soldiers, contractors, insurgents, lawyers and politicians on all sides of the conflicts in Afghanistan and Iraq. Some of the worst atrocities came to light with the publication of photos depicting the abuse of Iraqi detainees by American servicemen and women. These acts violate the Geneva Conventions - the laws that are supposed to protect us all from the worst horrors of war. Some experts say the violation of these laws by the most powerful nation on earth has caused a crisis in international law.

The publications of the photos depicting abuse at the Abu Ghraib Prison in Baghdad sparked a global discussion on our body of humanitarian law. Politicians put their own spin on what constitutes torture, critics argue that the ends of gathering intelligence justify whatever means are necessary, and still others claim that humanitarian laws are not equipped to deal with the enemy in the "war on terror".

While this discussion may seem tedious or incomprehensible, it could have profound consequences for all of us. That's because the Geneva Conventions are part of international humanitarian law  - a system of legal safeguards that cover the way wars may be fought. They aim to protect us all from the worst horrors of war.


History of the conventions
In 1859 Swiss national Henri Dunant found himself on the frontline of the carnage at the battle of Solferino, the last engagement in what is known as the second War of Italian Independence between Austria and a Franco-Piedmontese alliance.

"Here is a hand-to-hand struggle in all its horror and frightfulness; Austrians and Allies trampling each other under foot, killing one another on piles of bleeding corpses. It is a sheer butchery."
Dunant was overcome by a desire to, as he put it, "lighten a little the torments of all these poor wretches, or restore their shattered courage". His moral outrage gave rise to the International Committee of the Red Cross, and the first of the Geneva conventions. This body of law has grown enormously since then to protect the people caught in the firing line when states go to war.

So why do violations of the conventions threaten their existence? According to international law lawyer Karen Parker, "the Geneva Conventions have provisions that obligate all parties to the Conventions to seek out and try violators." So far no state has officially done so.

"If the international community rolls over and plays dead what they are really doing is throwing the Geneva Conventions out the window."

Fellow lawyer Pierre Klein from Belgium is also concerned about the future of international law:
"What I find absolutely puzzling is that many commentators and states argue in favour of new rules. When you look closely at what's taking place in international law, it's not any kind of step forward into the 21st century, it's stepping back to the bad old world of the 19th century, back to raw power and disregard of legal structure, legal institutions which were precisely devised in order to civilize international relations. The risk is that all this will be scrapped."


US needs protection, too
Dennis Halliday, the former Assistant Secretary General to the United Nations, agrees:  "I think the greatest crisis today for Iraq, for the UN, and for mankind itself is that the sole superpower does not respect the rule of international law. Perhaps the debacle in Iraq today will be a sad and unfortunate lesson for the US that violence does not work. Already there are bright people in Washington who understand the difficulty of rejecting international law. In the long run the US will require the protection and support of international law because despite its great power today it may not be a great power tomorrow. The US needs to respect international law in order to further its own interests whether for trade, warfare or other cooperation."

Indeed international law often gets caught in horse-trading between nations. It's sometimes easy to forget that these laws were written to protect flesh and blood, not the reputation of nations. But as individuals we all have a role to play in making or reinforcing the law.
Public importance

"The individual has an interesting position in international law," says Terry Gill, a professor of military law at the University of Amsterdam.
"It's important to have the majority of public conscience behind you in your actions. You will see that whenever a state goes to war it often goes to a lot of trouble to point out the legality of what it's trying to do. Even if that doesn't always hold water it shows that states realize that it is important to convince the public of the legal basis for what they're doing."
Karen Parker says that's because the "public conscience" can dictate what is or is not acceptable under international law. She urges people and their governments to take action.
"This is do or die. Either other governments are going to rally and defend humanitarian law in whole or in part, or its over. This is the test case. If they don't do it now, we might as well throw it all away."


Basics of international humanitarian law as summarized by the ICRC

• The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as a whole nor individual civilians may be attacked.

•  Attacks may be made solely against military objectives. People who do not or can no longer take part in the hostilities are entitled to respect for their lives and for their physical and mental integrity. Such people must in all circumstances be protected and treated with humanity, without any unfavourable distinction whatever.

• It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting.

• Neither the parties to the conflict nor members of their armed forces have an unlimited right to choose methods and means of warfare. It is forbidden to use weapons or methods of warfare that are likely to cause unnecessary losses or excessive suffering.

• The wounded and sick must be collected and cared for by the party to the conflict which has them in its power. Medical personnel and medical establishments, transports and equipment must be spared.

• The Red Cross or Red Crescent on a white background is the distinctive sign indicating that such persons and objects must be respected.

• Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must be protected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid. They must enjoy basic judicial guarantees.


Michele Ernsting 2005
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