War is neither pretty nor fair. It generates human suffering, which is borne primarily by the civilian population, as seen in Syria which, over two years after protests erupted against President Bashar al-Assad, continues to be torn apart by armed conflict.
With rising levels of indiscriminate violence and a death toll of more than 70,000 there is little to distinguish it from a full-scale internal armed conflict. Summary executions, torture, the unlawful targeting of hospitals and medical personnel, and the alleged chemical attack in March are just some of the tragic features of this conflict. But war does not happen in a ‘lawless vacuum’. There is a body of rules designed to regulate conduct in armed conflict and, vitally, to reduce the human cost of war.
International Humanitarian Law (IHL) governs the conduct of armed conflict. It provides protection to civilians and those no longer taking part in hostilities (the wounded and POWs) and strictly prohibits the targeting of civilians. Furthermore, all sides in armed conflict must choose appropriate means and methods of waging war that spare civilian lives. That is what IHL demands of them.
However, applying the principles of IHL has become increasingly difficult on the modern field of battle which today can be in the street, a market place and homes – all far removed from the understanding of conventional warfare as waged when the four Geneva Conventions were adopted in 1949 (followed by two additional protocols in 1977).
As of 2011, 194 States have ratified the four Geneva Conventions making them universally applicable. Although Syria is not a party to Additional Protocol II, it remains bound by the Common Article 3 to all four Geneva Conventions 1949 which specifically regulates protection of victims in non-international armed conflict. Article 3 sets out fundamental rules applicable to situations of non-international armed conflict which prohibit the vast majority of acts happening in Syria today.
While how war is waged has dramatically changed over the past 50 years, one of the oldest and most brutal weapons of war, rape and other forms of sexual violence continues to be employed in conflict. IHL specifically prohibits rape and other forms of sexual violence both in international and internal armed conflicts. Following its use during the Arab Spring, reports from Syria, including the Report of the independent international commission of inquiry on the Syrian Arab Republic confirm the widespread use of sexual violence. However, incidents of sexual violence often go under-reported by victims because of the social stigma and a culture of silence in relation to rape and other forms of sexual violence which still persist in many societies.
Preventing sexual violence in armed conflict was a key topic during the G8 Foreign Ministers’ Meeting earlier in April 2013. UK Foreign Secretary William Hague, who launched an initiative on Preventing Sexual Violence in Conflict in May 2012, said: “Our goal must be a world in which it is inconceivable, that thousands of women, children and men can be raped in the course of a conflict because international framework of deterrence and accountability makes it impossible”.
Notwithstanding the Foreign Secretary’s view, IHL remains clear about the prohibition on rape and other forms of sexual violence in international and internal armed conflicts. Indeed, for the past few decades nothing has changed in terms of the core rules of IHL. These rules applied during conflicts in the Former Yugoslavia, Rwanda and the DRC, all marked by exceptionally high levels of sexual violence. The only thing that has changed is a curious shift in political agendas, which has once again refreshed the long-running debate about the need to eradicate the use of sexual violence as a weapon of war, and not the international legal framework surrounding armed conflict.
Nonetheless, more than 60 years since the four Geneva Conventions were created, 15 years since the first successful prosecution by an international criminal tribunal of rape and a few UN Security Council Resolutions later, sexual violence in armed conflicts, including in Syria, continues to occur.
Does this mean that IHL is out of date and unfit to protect the victims of modern armed conflict? I do not think so. The rules of IHL are simple and clear, they prohibit the killing of civilians, torture as well as outrages upon personal dignity and rape. However, these violations continue as many of the perpetrators think they will go unpunished. This is despite the two decades of major developments in the field of international criminal law, which resulted in successful prosecution of perpetrators of war crimes, crimes against humanity and genocide at international level. During that time, rape and other forms of sexual violence were also successfully prosecuted by international criminal tribunals.
What is the way forward? The challenge lies in implementing and enforcing these rules by all parties involved in armed conflict. In the context of modern, asymmetrical warfare engaging in a dialogue with States as well as non-state participants seems the best way forward. But how and where does one begin to engage with these active participants in modern armed conflict, especially with non-state actors? And, more crucially, how does one convince them to obey the rules of IHL?
It is complex question and, to an extent, a political hot potato which requires resources, specialist staff, commitment and time. Lack of political will to comply with the principles of IHL is not an uncommon challenge. Furthermore, the practical difficulties involved in such a project should not be underestimated. After all, guerrilla fighters or other armed groups do not have offices in New York or Geneva and may not be easily convinced to engage in dialogue about the respect for IHL.
More than 60 years ago, the renowned international legal scholar Sir Hersch Lauterpacht, noted: “If international law is at the vanishing point of law, the law of war is at the vanishing point of international law”. Looking at the situation in Syria today, Lauterpacht’s observation might still appear valid. However, it is difficult to picture what modern warfare would look like without IHL – presumably even more gruesome, violent and destructive than it currently is.
Instead of demeaning the value of IHL, perhaps it is more important to focus the discussion on how to improve its enforcement in the 21st century. More effort and willpower is certainly needed to nurture respect for IHL amongst all parties to modern armed conflict. IHL is far from being outdated as some people may suggest.
Lecturer in Law
School of Law, The Open University