Geneva Convention's relevance for human rights
JURISTS from around the world recently observed the 60th anniversary of the Geneva Convention (on August 12, 2009). While doing so, as expected, some brought up once again the debate about its relevance, whether there is need for change and also if some of its provisions should be re-examined within the context of a changing world.
Any discussion of the principles contained in the 1949 Geneva Convention requires, however, that we take cognisance of the agreements reached earlier at Geneva on August 22, 1864, on July 6, 1906 and on July 27, 1929. This is necessary because it demonstrates the gradual evolution of the principles, as the strategic situation changed in conflict situations. The only constant factor that however gained greater focus despite change was the humanitarian aspects related to war.
It may be recalled that the Second World War, which concluded in 1945, and had encompassed the whole of Europe, the USA, parts of the Middle East and North Africa and large swatches of the Far East and South East Asia, underlined once again the need to re-assess the existing principles related to combat. International jurists were persuaded by their desire to mitigate the 'evils inseparable from war' and to put an end to unnecessary hardships. It was felt that time had come for greater respect for the human personality. This humanitarian character lent a special ethos and meaning to the Geneva Convention eventually agreed upon in 1949.
I am delving into the past to point out that this Convention of 1949 was a major move forward. The victors as well as the vanquished of the Second World War, both realised that human rights were the concern of the all mankind. The deplorable genocide that had led to the death of more than six million people of Jewish faith was partially responsible for this. The first step in this regard had already been undertaken by the General Assembly of the United Nations, meeting in Paris on December 10, 1948. It adopted and proclaimed the Universal Declaration of Human Rights 'as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration in mind, shall strive by teaching and education to promote respect for these rights and freedoms.'
It was this awareness about the implications of modern warfare that prompted the emergence of the 1949 Geneva Convention. It was this realisation that eventually persuaded all sixty-four parties to agree on the addition of a common preamble that would guarantee and ensure protection for those not actively engaged in hostilities from the effects of war. Article 3 of the First Geneva Convention also clarified that this would apply without any adverse distinction arising out of race, nationality, religious belief or political opinion.
The Geneva Convention has since become the basis for contemporary rules of engagement in the conducting of conflict and for providing protection for wounded members of armed forces in the field and at sea, prisoners of war and civilians. It is the universal nature of this Convention that has persuaded more countries to have signed up to it than there are members of the United Nations. This in turn has saved hundreds of thousands of lives over the last sixty years.
However, despite the general consensus to abide by this convention, many of the state parties have flouted some of its provisions under different pretexts during new, evolving types of armed engagements. Such deviation has also been supported by their senior government functionaries. They have advocated that the process of conflict has changed and that the convention is unable to respond to these new types of engagement.
This controversy gained special momentum after the terrorist events of 9/11 and the creation of the Guantanamo detention center. Even the International Committee of the Red Cross (ICRC), which has strong historical links to the conventions, was forced to seek clarification over what constitutes involvement in modern conflict, in which rebel groups increasingly disguise themselves among local populations, and "far too many civilians" risk becoming "lawful targets."
It would be difficult to dispute that warfare has changed over the past 60 years. Today's conflicts are more likely to occur within states than between them, and those involved are increasingly likely to be fighting for an ideology than a country. From Palestine to Afghanistan, Sri Lanka to Iraq, the distinction between soldier and civilian has become blurred.
At the same time it is clear that tampering with the wording of the conventions could cause additional problems, permitting governments currently in breach of their requirements to legitimise their positions.
Nevertheless, one has to admit that the Convention has survived a "difficult phase" in the years following the September 11 attacks. It took more than four years of litigation for the US government's position on the treatment of prisoners in Guantanamo to be deemed illegal by the US Supreme Court. It has ruled that those held at the prison should be held in accordance with the convention. Even then, some in the USA have disagreed with the court's decision. A rhetorical broadside against the Third Geneva Convention was fired after their decision by White House Adviser Dan Bartlett. Nevertheless, Barack Obama, the US President deserves credit for having made it clear the Guantanamo's detainees should be protected by the conventions.
The Geneva Conventions, it must be understood, are part of the fabric of international human rights law, and must be zealously protected. In this context, it is totally unacceptable to suggest that unlimited interrogation, secrecy, and incarceration without trial in a maximum-security cell is part of creating national security.
The conventions have become a foundation stone for a dynamic body of international humanitarian law and that it needs to be respected in its totality. It would also be appropriate to mention here that this Convention is not static as many have accused it to be. The addition of the Geneva Protocols, which were approved in 1977, and more recent treaties banning the use of land mines and cluster munitions are evidence that the conventions are taking note of changes in the manner in which war is conducted today. We have to praise its endurance as a corner stone for ensuring human rights and also see how it can be carried forward by addressing issues like deaths of unarmed civilians through use of prohibited ammunition (recently in attacks on the civilian population in Gaza) or through suicide bombings. It might be useful as such, to convene another international debate of state parties to the Convention to find solutions and necessary codification for this purpose.
Muhammad Zamir is a former Secretary and Ambassador.
He can be reached at mzamir@dhaka.net.
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