How effective is humanitarian law in today’s conflicts? | The World Weekly
The first two decades of the 21st century have been largely defined as an era of disruption, in which politics, business and civil society are struggling with the wide-ranging effects of the digital revolution.
Today’s wars reflect this dystopia. In various parts of the world, proxy powers vie for influence through protracted conflict on the checkerboard of other nations. At the same time, non-state armed groups, from Hezbollah to the Taliban, frequently dominate the battlefield, blurring the lines between war, insurgency and terrorism.
As the conflicts in Syria and Yemen have become largely fragmented, the number of civilian casualties now far outweighs those of soldiers. With bombed hospitals, booby-trapped schools, human shields and suicide bombers, and the prospect of peace ever-elusive, it is no wonder that millions are fleeing their homes. According to the Global Peace Index, worldwide conflict is now the biggest impediment to development: in 2017 alone, it estimated that conflict cost the global economy $14.3 billion.
Given the seeming intractability of this no-rules warfare, can humanitarian law make a difference?
It can, says Helen Durham, the director of International Humanitarian Law and Policy at the International Committee of the Red Cross (ICRC). The ICRC, which operates out of 80 countries with a staff of 16,000 people, is the official guardian of the laws of war, mandated to protect and assist those caught up in any conflict.
Dr. Durham, whose career at the Red Cross has included field missions in Myanmar, the Philippines and elsewhere, is the first to recognise that the laws of war are “not perfect” amid today’s “unacceptable” levels of human suffering. Laws are broken every day in war zones, as they are in civic life, she tells The World Weekly, but, “today we just know more about them”. The rules of war alone cannot be enough to stop this bloodshed. The real means to limit human violence must be exerted by other forces, such as “political pressure, economic sanctions, mobilisation of ‘shame’ and personal power”.
Yet she makes an important and persuasive case that humanitarian law remains an essential element in attenuating and limiting the human ramifications of conflict.
The importance of legal precedent
Bringing those responsible for war crimes to justice can be “slow, difficult and expensive”, Dr. Durham admits, when it involves cutting through state sovereignty via international criminal tribunals. The conviction of Bosnian Serb general Ratko Mladi? in The Hague - 21 years after the massacre at Srebrenica - is a case in point. His defiance, wrote journalist Ed Vulliamy, can make genocide preserve “a hideous logic of its own to its perpetrators”.
“To overestimate that such prosecutions are going to save the world is naive,” says Dr. Durham, “yet to underestimate their value is equally dangerous, because they ensure that the critical information about the horrors of war is not lost.”
And just one legal precedent can help limit the devastation of future wars on affected societies. The 2007 ruling by the International Criminal Court on the Rwandan genocide that classified sexual violence as a war crime is one such example. In Dr. Durham’s opinion: “I have spent time with many women over the last 20 years who hear about successful prosecutions for rape and feel that there is recognition that what they suffered was not acceptable. They may not have personal justice but they have the acknowledgement that sexual violence is not just an inevitable consequence of conflict.”
Similarly, the 1998 Ottawa Treaty that outlawed the use, stockpiling and transfer of anti-personnel landmines, led to the destruction of 50 million of these weapons and, since then, has brought down annual rates of mine-induced death and injury from 20,000 to 3,000.
However, with the increasing use of these indiscriminate weapons today in conflicts from Afghanistan and Iraq to Libya, Syria, Ukraine and Yemen, “it is over-simplistic to herald new treaties as either successes or failures,” adds Dr. Durham, “they are but one tool to try to curb the excesses of behaviours.” Moreover, “attempts to capture examples of when humanitarian law is followed is like capturing something that didn’t happen.” Especially when its effectiveness is often only understood retrospectively.
Dr. Durham insists that what must prevail is the strict adherence to the three founding principles of the Geneva Convention: the “distinction” made between civilians and combatants, the “proportionality” of military objectives versus collateral damage, and the “precaution” exercised over the nature of the target. What then follows, she says, are “constant adjustments” to compliance, whether on the use of weapons, conditions of detention, or provision of humanitarian corridors.
Though it is, “neither useful or intelligent to compare and contrast different armed conflicts”, it was the principle of distinction, Dr. Durham argues, that has helped limit the deaths of Syrians over the last six years to around 400,000, as terrible as this number is, against the Rwandan slaughter of 800,000 people in a few short months in 1994.
Changing the narrative
The bigger challenge, Dr. Durham believes, is how to influence “those we have to face off against in negotiations”. In order to create “prisms of traction”, she and her team of ICRC sociologists, psychologists and lawyers are focusing on “changing the narrative”, persuading fighting sides to adhere to the principles of war, not as ius cogens, (unquestionable truths), but as delivering desired outcomes. Coaxing warring factions to accept the illegality of torture, for instance, is best achieved when they can see that it doesn’t actually work and contributes instead to the irretrievable breakdown of society.
This new narrative can be controversial when the ICRC applies it to non-state armed groups (NSAGs). Dr. Durham admits that her efforts to improve the conditions of their fighters’ detention and for those living under their authority, is a “very unpopular thing.”
But she points out that more NSAGs have emerged in the “past six years than in the last 60”; at the height of their power, Islamic State militants for example ruled over an area inhabited by around 10 million people. Non-engagement “isn’t working”. Statistically, state armies account for “far more bloodshed”, so it is essential to engage now on the ways that non-state armed-groups wield their weapons, especially in the use of explosives in densely populated areas.
Many NSAGs aspire to sign up to the humanitarian rules of war, “not as a nice, optional extra”, Dr. Durham notes, but because “it’s beneficial and more effective for their governing systems and weaponry”. Trying to convince these groups to respect human needs is to move “beyond the rage”, whether this is to allow a woman under a group’s control to be given information on the whereabouts of her husband or to receive a food package. “All fighting sides are better off with the laws than without,” she says.
Humanitarian laws today, according to Dr. Durham, must be contextualised for the 70% of those the ICRC helps who are from the Islamic world and for whom the word ‘Geneva’ has little or no resonance. Her legal team includes an Islamic scholar who helps reference the limitations placed on the conduct of war through the ancient texts of the Koran.
Similarly, public criticism of the failures of humanitarian law often reflects the “deep cynicism that is sometimes the luxury of those who are not in a war zone”. In contrast, “about 50% of people living and experiencing the conflict themselves feel the laws of war make a difference and their lives better - from Mali to Afghanistan.”
She urges western media to be more accurate with the language of war. Coverage is often condensed into tut-tutting over how much worse the world is today, and a lack of correct terminology can contribute to that cynicism. As Dr. Durham points out, “Everything is a war crime, everything is a genocide, women are always victims, refugees are migrants; there is a reluctance to pause over the huge advances in humanity, which leads to a lack of understanding of what works and how it can be built upon.” Affirming what is working and recalibrating news towards less sensationalism, she adds, can influence the behaviour of all who are involved in conflict.
The ICRC has had its fair share of critics, for example having been accused of a ‘culture of silence’ in the face of governmental oppression. Yet its rules of engagement, Dr. Durham insists, must remain “radically principled”.
Accordingly, safeguarding their role as impartial negotiators and mediators is the only way to keep open the lines of communication in territories that sometimes no other outside actors can enter. This also means refraining from arming ICRC workers, despite the extreme dangers they face - staff are regularly kidnapped and 10 have died last year.
Among today’s ubiquitous violence, the mantle of humanitarian law may seem to offer excessively small pockets of relief. Yet where would the world be without the constraints that humanitarian law and actors like the ICRC bring to otherwise unlimited conflict? Like a rising tide, these conflicts now threaten the levees of humanity. With every successful attempt to keep them to certain legal parameters, combatants are forced to pause and reflect, even if they then adapt to find another penetrating angle of violent advantage.
In the end, humanitarian law can mitigate suffering but cannot resolve conflict. Politicians and governments are still responsible for that.