Photo courtesy of ICRC
In commemoration of the 75th anniversary of the Geneva Conventions, Groundviews conducted an in depth interview with Dr. Radhika Coomaraswamy, a distinguished human rights lawyer and former UN Under-Secretary-General. Dr. Coomaraswamy, renowned for her advocacy in international humanitarian law and her efforts to protect the rights of women and children, shares her insights into the historical significance, ongoing challenges, and future directions of the Geneva Conventions. She explores the origins, critical features and the evolving relevance of these landmark treaties in contemporary conflicts.
What are the origins of the Geneva Convention?
The origins of the Geneva Conventions are closely linked to the founder of the International Committee of the Red Cross (ICRC). Henry Dunant is credited with the initiative, as he was deeply disturbed by the horrific conditions faced by wounded soldiers on the battlefield of Solferino in 1859. Dunant believed there should be established rules and regulations governing the conduct of war, particularly in how soldiers are treated.
The first convention focused on the treatment of wounded soldiers on the battlefield and granted the ICRC the authority to provide medical attention to those soldiers. This is why the ICRC’s emblem, the Red Cross, is universally recognized. The idea was that wounded and sick soldiers would receive medical attention, and the ICRC would be responsible for their care. Even the Taliban respected this principle, allowing the ICRC to retrieve wounded soldiers from the battlefield and take them to hospitals without interference.
The first Geneva Convention specifically addressed the treatment of wounded soldiers in the field. In 1906, attention expanded to include sailors who were wounded or shipwrecked, resulting in the 1906 Convention for the Treatment of Shipwrecked Soldiers. The next significant development was the 1929 Convention, which provided protections for prisoners of war, detailing their treatment and exchange.
The 1949 Conventions encompassed the previous three and added a fourth element that is perhaps the most relevant today: the protection of civilians during conflicts. This Fourth Geneva Convention addresses war crimes and crimes against humanity, making it a cornerstone of modern international humanitarian law.
In summary, there are four key Geneva Conventions: the first deals with wounded soldiers on the battlefield, the second with shipwrecked soldiers, the third with prisoners of war, and the fourth with the protection of civilians during conflicts. Additionally, there are optional protocols that address the treatment of non-state actors and other related issues.
What are the important features of the conventions?
There are two basic principles that underpin the Geneva Conventions. The first involves the separation of civilians from combatants and the second the principle of proportionality. All attacks must by proportionate.
The Fourth Geneva Convention, which focuses on the protection of civilians, is particularly significant for all of us. This convention is crucial because it consists of two main sections.
The first section outlines the obligations of states during conflicts. These obligations include prohibiting the killing of civilians, refraining from acts of torture, avoiding attacking schools and hospitals, avoiding the use of starvation as a method of warfare, and ensuring that cultural and museum sites are not bombed. These are the responsibilities of state forces.
The second section addresses individual criminal responsibility. It establishes that each soldier is personally accountable for certain actions. If a soldier commits willful killing, torture, forced deportation, attacks on schools and hospitals or other similar crimes, they can be held individually responsible, tried in a court of law, and sentenced to imprisonment.
One of the most remarkable aspects of the Fourth Geneva Convention is its principle of universal jurisdiction. This means that any country in the world, provided it has enacted the necessary legislation, can prosecute individuals for these crimes, regardless of the individual’s nationality or where the crimes were committed. A notable example is the case of Augusto Pinochet, the former dictator of Chile, who was arrested in England. Although England had no direct involvement in his crimes, they were able to arrest him because of his human rights violations in Chile. This illustrates the far-reaching impact of the Geneva Conventions
How do the conventions deal with sexual violence?
This issue arose because, as I mentioned earlier, there were grave breaches in the Geneva Conventions, including individual acts that constitute serious violations. In the section concerning states, it is stated that they must protect the honor of women, implying a prohibition on sexual violence. However, in the section where individuals are held responsible, there was no reference to sexual violence. This omission caused significant concern, especially in the 1990s when the women’s movement gained momentum, highlighting that sexual violence was not included as a grave breach in the Geneva Conventions. However, it is often said that customary international law covers this aspect.
Grave breaches refer to serious offenses like willful killing, torture, and forced deportation—acts that can result in imprisonment. The absence of sexual violence from this list sparked a major debate. After extensive discussion, the tribunals for Yugoslavia and Rwanda, along with the International Criminal Court (ICC), eventually recognized sexual violence as a grave breach. Although not explicitly mentioned in the original Geneva Conventions, sexual violence is now considered a grave breach under the ICC statute and customary international law. This development, which emerged in the 1990s, also encompasses related crimes such as trafficking and forced pregnancy. Anyone engaging in these acts can now be prosecuted and punished by the International Criminal Court although they were not initially included in the Geneva Conventions.
What was the relevance of the Geneva Conventions to Sri Lanka’s civil var?
As you know, Sri Lanka’s civil war has been the subject of much discussion, particularly focusing on the final days of the conflict. The government claims that it adhered to the rules of war but victims have made accusations of attacks on schools and hospitals, indiscriminate killings, torture and the recruitment of child soldiers by the LTTE. These are serious crimes that have been alleged in the context of the Sri Lankan civil war. However, no tribunal has been established to address these allegations, and there is no international mechanism in place to pursue justice. The discussion around these issues continues, with many advocating for transitional justice and a proper judicial process. The conversation is far from over, as there are ongoing allegations of grave breaches committed by both sides during the war. Unfortunately, without a comprehensive transitional justice process, these remain unresolved accusations.
The Geneva Conventions are not being followed in many parts of the world such as Gaza so what is the point of them?
The nature of international law is such that while there are established rules and norms, there often isn’t a proper mechanism for sanctions or punishment at the international level unless countries agree to it. In the case of Israel and Palestine, for example, Israel and the US have not agreed to certain sanctions and punishments although the UN Security Council has passed resolutions and the Human Rights Council has taken action. However, these actions have not been effectively implemented.
Regarding the situation in Gaza, it appears that numerous grave breaches of international law have occurred. South Africa has taken Israel to the International Court of Justice (ICJ) on the grounds of committing genocide, and the ICJ has found plausible reasons to believe that genocide may be occurring, leading to further investigation.
A significant development in modern warfare, such as the use of drones and area bombardments, presents new challenges. These methods can cause widespread destruction, often targeting entire buildings to eliminate a single person, which results in significant collateral damage. The Geneva Conventions, which were written in an era of more traditional warfare, do not adequately address these new forms of conflict.
The attacks on schools and hospitals in Gaza also represent a troubling departure from past practices. Traditionally, hospitals were considered off-limits, even if enemy combatants were inside, but now, these sites are being directly targeted.
There is a pressing need to reaffirm the protections provided by the Geneva Conventions, especially in light of these new challenges. Both Israel’s actions in Gaza and the response from the international community, including the ICJ and the International Criminal Court (ICC), where indictments against Israeli leaders are being considered, indicate that some level of accountability may be emerging.
How can these conventions be strengthened?
I believe it’s crucial for member states to actively refer cases to the International Criminal Court (ICC), which essentially upholds the Geneva Conventions. Increased engagement with the ICC is necessary. There’s a growing perception that international law is driven by geopolitics and that rules don’t matter, even within our own country where the Foreign Ministry sometimes conveys this sentiment. However, rules do matter, especially for smaller nations. While powerful countries like the US may act with impunity due to their concept of exceptionalism, smaller countries rely on rules for protection. It’s essential to emphasize the importance of international rules and to reaffirm our commitment to the Geneva Conventions. We may need to update these conventions, adding new sections to address modern issues like drone warfare but the commitment to a rules-based order for handling international crimes is vital.
Watch the full interview by clicking on the link below.
