‘Awful but lawful’ military tactics are undermining the Geneva Conventions
By Cordula Droege, Chief Legal Officer, International Committee of the Red Cross
Opinion: Originally published in Le Temps, 9th August 2024
An airstrike kills dozens of civilians. Rockets obliterate a hospital. Military forces block humanitarian convoys at checkpoints, leaving victims of war with no food or medical supplies.
Such acts are abhorrent, painful to see, and much worse to experience. Yet attacking armed forces often portray these events as the unfortunate but legal outcomes of war – “awful but lawful,” as the saying goes in my line of work.
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.
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.
If the world’s military forces continue to make unconstrained and inconsistent interpretations of international humanitarian law, the rest of us will watch helplessly as the Geneva Conventions become less an international agreement crafted to save lives and more a legal tool contorted into the service of military might.
Preventing the catastrophic human cost of war is a central purpose of modern international law. Some norms, like those of the UN Charter, set out to eliminate war altogether, requiring the peaceful resolution of disputes instead. Other rules, like those of the Geneva Conventions, step in to protect us when all else has failed. The Conventions, which every country has joined, constrain the behavior of warring parties during a conflict, no matter how it started or who is at fault and whether your enemy abides by the law or not.
Understood in simplest terms, the law of armed conflict acknowledges that both sides will inevitably kill, injure, and destroy, but it prohibits them from dehumanizing their adversary. International humanitarian law seeks to set an equilibrium between two irreconcilable imperatives – military necessity and our common humanity. Its rules set an outer limit of acceptable behaviour, a boundary beyond which our humanity would be upturned in a way that even war cannot justify.
Some acts are always prohibited in war: torture, rape, taking hostages, targeting civilians and indiscriminate attacks. In other areas the rules are more nuanced: incidental civilian casualties must be avoided, or at least minimized.
The pragmatism of this approach is where the law of war finds its strength and universal support. However, despite having so much going for it, the law is under immense strain. How can we continue to believe in the laws of war when so many civilians die in conflicts? Is it that the rules are inadequate? Is it that they aren’t enforced?
Noncompliance and impunity are obvious weaknesses. The yawning gap between agreed rules and the reality on the ground has always been a serious challenge to the law of armed conflict. Violations happen in plain sight, giving rise to justifiable disillusion and even cynicism.
But there are also more subtle yet equally pernicious forces at work. Parties to armed conflicts have repeatedly used international humanitarian law to justify their actions when they depart from the expectations that would ordinarily apply.
Examples of selective or bad faith interpretations are found far too often today. When states are accused of carrying out torture and ill-treatment, most deny it. When those denials become untenable, some governments resort to pages and pages of pseudo-legal arguments and euphemisms. Eventually such arguments are exposed as shams, and yet when the next crisis arrives those same arguments are trotted out again.
International law is already a modest body of law. It does not prohibit all civilian casualties in armed conflict. It merely tries to shield civilians as much as possible from military operations. Applied in good faith these rules can and have saved a lot of lives. But it rests on the presumption that the institutions and individuals applying those rules accept that all civilian life carries equal weight. It’s easy to see why a party would devalue the lives of their enemy. But it’s also easy to understand how diminishing the worth of civilian life will eventually gut the law of its meaning.
States need to act to reverse these trends. They can lead by example and hold everyone to the same standards; influence each other by placing conditions on military assistance and arms transfers; join treaties they have not yet ratified; and hold violators to account in their domestic courts.
No one can credibly argue that the law of armed conflict is inherently unfit for purpose. States and their militaries purposefully crafted it in the aftermath of two world wars. Critically, no government in the world denies that it is bound by IHL. Governments and their legal advisors need to take their responsibility to uphold the laws of war seriously – not just the letter but the spirit of the law.
The Geneva Conventions were born out of the rubble of Warsaw and Leningrad, to counter the complete dehumanization of millions of civilians and of prisoners. They are 75 years old this year, complemented by their Additional Protocols of 1977 and other international humanitarian law rules that strengthen civilian protection. Much has been achieved, but when we look at the rubble of Aleppo, Mariupol, and Gaza, or when we look at the inhumane prison conditions in which people are held in today’s conflicts, it is not good enough.
Victims of armed conflicts do not need a culture of lip service to international humanitarian law. They need states and militaries to adhere to the pledges they made when signing the Geneva Conventions: to do all they can to reduce civilian suffering in war.
