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The Geneva Conventions and Protected Persons:
A Need for a Better International Humanitarian Law
Josey Elliott
Academic affiliation: Oklahoma State University
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When first hearing of the Geneva Conventions, one thinks of the unity and great magnitude of importance they have had on the world. Today, however, the Conventions are more frequently being violated, which has led to much criticism by international scholars. The United States' War on Terrorism has stimulated most of this from events related to international humanitarian law which have occurred in Cuba and Iraq. The United States is not the only country to have violated the laws laid out by the Geneva Conventions. Iraq breached these laws during the Gulf War, while other infringements occurred in the mid-1990s during the Bosnia-Kosovo Conflict. Because of infringements such as these, many scholars have stated their ideas as to what should be achieved to prevent these violations from occurring more often or growing more rampant. This essay will focus on the problems within international humanitarian law and the opinions of what the international community should achieve, if anything, to prevent future violations.

People who are protected under the Geneva Conventions range from civilians to prisoners of war (POWs). The laws that protect these people are often referred to as international humanitarian law. While in current events, people have focused on the treatment of POWs, James Turner Johnson, professor of religion at Rutgers University, believes there is a need to find ways to protect the non-combatants: "The conduct of war can be subjected to moral limits. Distinguishing between non-combatants and combatants is a basic and necessary step in this direction" (Johnson 424). Because of occurrences in Rwanda-Zaire, the former Yugoslavia, and Bosnia, Johnson feels forced to explain the need for international law to better define the differences of combatants and non-combatants, as well as direct and indirect harm.

Other scholars believe that certain statements do not need to better defined, but rather better implemented by humanitarian organizations. James D. Ross believes that the human rights community has not regarded certain acts and should become more involved, or in some cases, intervene: "An important role for the human rights community in the coming years will be to ensure that state actions remain grounded in reality, not rhetoric, and thus subject to challenge" (Ross 32). On many occasions, humanitarian organizations, such as the Security Council, the International Committee of the Red Cross (ICRC), and Human Rights Watch, have decided to not concern themselves with certain events, while many innocent civilians have died. Fancois Bugnion disagrees with this and explains, "The ICRC and other humanitarian organizations have suffered cruel losses in their attempts to continue humanitarian operations despite growing insecurity and, sometimes, outright anarchy" (47). Bugnion, in fact, praises humanitarian institutions for their successful operations throughout history.

Many strategies are being developed to help nations or individuals when international laws are broken and the humanitarian groups do not intervene. These strategies "would maximize the humanitarian resources available under a given set of political and security constraints" (Bruderlein and Leaning 434). The organized tactics would involve securing areas, disarming inhabitants, and positioning forces to protect others (Bruderlein and Leaning 434). In other words, when the humanitarian organizations fail to meet their own standards, there are many ways that the humanitarian community can aid those in need.

Some scholars believe that certain organizations get away with deciding to persecute violators, while letting other people go on without the recognition of their breaches of conduct. Damjan Panovski explains that the United Nations created the International Criminal Tribunal for the Former Yugoslavia (ICTY or Tribunal) because of the violence that occurred in the early 1990s (623-24). "The Tribunal's failure to prosecute war crimes committed by ethnic Albanians," Panovski states, "violates the U.N. Charter" (644). This is a perfect example of how humanitarian organizations are violating their own statutes. Therefore, the problems would not be caused by erroneous international law, but rather the results caused by the failure of international humanitarian groups.

The belief that a new type of war is the cause of problems in international humanitarian law is becoming widespread among scholars. The new type of war is more directed toward civilians and is usually expressed as armed conflicts. Claude Bruderlein and Jennifer Leaning state that international humanitarian law is "fundamentally flawed" because of the new war (431). Bruderlein and Leaning also declare: "The need to expand the scope of humanitarian protection arises directly from the changing nature of war" (432). Expanding the scope of protection pertains to conflict settings and extended time frames of individuals. Steven R. Ratner, professor of law at the University of Texas School of Law, argues that expanding international law will "blur the distinction between cases," and instead "it must be confined to a highly limited set of circumstances" (Dworkin, Ratner, and Schmitt). These limits would either rule out existing norms or modify them.

Several international humanitarian leaders believe that their organizations are able to solve conflicts in today's war. ICRC President Jakob Kellenberger states: "International humanitarian law is adequate to meet the challenges raised by modern conflict" (Kellenberger qtd. in Dworkin, Ratner, and Schmitt). Michael Schmitt, professor of international law, argues the applicability of international law. Schmitt claims: "The problem is that terrorists have turned to tactics that can be answered effectively only through prolonged, often intense, military action. Yet, without a direct link to either an international or strictly internal armed conflict, humanitarian law does not apply (unless adopted by a State as a matter of policy)" (Dworkin, Ratner, and Schmitt). Schmitt describes that modern wars are not as country-associated, as it once was, but now is nation- or group-associated within countries, such as terrorism. This has led to problems regarding the definitions of international laws. For example, the United States government rationalizes that prisoners in Guantánamo Bay, Cuba, are being held legally, because of an interpretation of international law (Murphy 593). However, not only does Michael Schmitt believe that laws should be redefined, but also that new laws should be added: "A particular problem in humanitarian law is the absence of a well-developed law of non-international armed conflict, for most conflict is now internal in character" (Dworkin, Ratner, and Schmitt). This appears to not relate to international law, but actually, is a view of the modern war, and the need to establish the additional international laws.

The violations of international humanitarian law can either be supported or are already illegal based on the different views of each nation, as stated previously by Michael Schmitt. For example, Hamed Sultan states, "Under Islam, faith and legal order form an inseparable whole, with faith as the source and the legal order as its necessary complement" (29). Sultan explains that humanitarian law is already a part of their legal system, because it is emphasized by the Islamic faith: "It automatically embraces all new provisions relating to new situations," exclaims Sultan, "provided they are in keeping with the five basic principles of the Islamic legal system" (38). While some nations can accept all provisions to the Geneva Conventions, some nations, like Islamic nations, may deny future provisions if the new laws oppose views held by the law held by their religion.

In extreme cases, some scholars believe that there should be defined rights and obligations of states, and an international police is needed to implement these. In his book, Judging War Criminals, Yves Beigbeder states: "International humanitarian law…is also 'soft law,' an imperfect law which sets norms and defines crimes but relies entirely on states to respect these norms" (2). Beigbeder believes these laws should be better outlined in order to have a more effective humanitarian law. His views are extremely opposed by Francois Bugnion:

Owing to the difficulties of codification at a time when the international community comprises more than 180 sovereign states, a major overhaul of the Geneva Conventions is unlikely in the foreseeable future. Nor should such a radical move be necessary. The rules are there, and they meet essential humanitarian requirements…What is really necessary is to ensure that they are effectively implemented and accorded adequate respect. (47-48)

Bugnion, the ICRC's director of international law, agrees that there is a problem with international humanitarian law. He rejects the idea that there is a need for changes in international law, and instead emphasizes the need for respect of the laws that already exist.

The breaches of these regulations have directed to the ideas of creating an international criminal court. According to Yves Beigbeder, international humanitarian law "is slowly evolving into international criminal law" because of this need for an international court (26). Judge Theodor Meron, president of the ICTY, points out: "The Geneva Conventions neither contemplate nor exclude the possibility of establishing an international criminal tribunal of the Nuremberg type" (106). Meron hints at the need of the criminal court and considers it to be an effective way to convict those who disregard international law. No longer would humanitarian law be advocated by those in command. It would be an international law, and it would be enforced by a higher, more authoritative court.

Most scholars agree that there are problems concerning international humanitarian law. The differences lie within the scope of international law and the many variations of ways to resolve these problems. Further, these scholars emphasize the need of critical analysis of the present humanitarian laws to be implemented by international leaders, as well as the general public.

Works Cited

Beigbeder, Yves. Judging War Criminals. New York: St. Martin's Press, Inc., 1991. 1-26.

Bruderlein, Claude and Jennifer Leaning. "New Challenges for Humanitarian Protection." British Medical Journal 319.7207 (1999): 430-35.

Bugnion, Francois. "The Geneva Conventions of 12 August 1949: From the 1949 Diplomatic Conference to the Dawn of the New Millennium." International Affairs 76.1 (2000): 41-50.

Dworkin, Anthony, Steven R. Ratner, and Michael Schmitt. "Rethinking the Geneva Conventions." Crimes of War Project. 30 January 2003. 9 October 2004 <http://crimesofwar.org/expert/genevaConventions/gc-intro.html>.

Johnson, James Turner. "Maintaining the Protection of Non-Combatants." Journal of Peace Research 37.4 (2000): 421-48.

Meron, Theodor. "Prisoners of War, Civilians and Diplomats in the Gulf Crisis." The American Journal of International Law 85.1 (1991): 104-09.

Murphy, Sean D. "U.S. Abuse of Iraqi Detainees at Abu Ghraib Prison." The American Journal of International Law 98.3 (2004): 591-96.

Panovski, Damjan. "Some War Crimes Are Not Better Than Others: The Failure of the International Criminal Tribunal for the Former Yugoslavia to Prosecute War Crimes in Macedonia." Northwester University Law Review 98.2 (2004): 623-55.

Ross, James D. "Promoting Human Rights." Ethics and International Affairs 16.2 (2002): 27-32.

Sultan, Hamed. "The Islamic Concept." International Dimensions of Humanitarian Law. Paris: Unesco, 1988. 29-39.

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