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Last Updated: Friday, 8 June 2007, 12:56 GMT 13:56 UK
Analysis: The rules of war
By Imogen Foulkes
BBC News, Geneva

An important anniversary is being marked in international humanitarian law: the signing of key additions to the Geneva Conventions 30 years ago.

Evacuation of wounded civilians in Tyre, Lebanon, Aug 06 (pic: ICRC)
Many civilians suffered in last year's Lebanon conflict (pic: ICRC)
Additional protocols I and II of the 1949 Geneva Conventions are regarded as legal landmarks, containing strict guidelines on how wars should be fought.

They make clear distinctions between civilians and combatants, civil and military targets.

The impetus for the protocols came in the 1960s, when wars of liberation in former colonies - in particular the war in Vietnam - showed that civilians, far from being spared the conflict, were actually bearing the brunt of it.

The deliberate destruction of non-military targets, carpet-bombing which wiped out entire villages, and the targeting of civilians as a means of terrorising the population, caused the International Committee of the Red Cross (ICRC) to call for more rules on the conduct of war.

Tricky negotiations

But proposals that looked humane and eminently sensible soon began to look complicated when states got together in Geneva to negotiate them.

Signing of Additional Protocols, 1977 (pic: ICRC)
Cold War-era conflicts prompted the Additional Protocols (pic: ICRC)
"These were very sensitive issues," remembers Frits Kalshoven, a member of the Netherlands delegation at the time. "Of course everybody would love a result where civilians got off scot-free, where they were never harmed... but that was not realistic."

"For the military of course, we were discussing their daily work, what's allowed and what's forbidden when it comes to attacking a city. It became very complicated."

But, after almost four years of constant negotiations, a new set of rules on the conduct of war were agreed. The additional protocols state that:

  • Combatants must not pose as civilians
  • Indiscriminate attacks are not allowed
  • Acts of violence designed to spread terror are prohibited
  • Objects indispensable to the survival of communities must not be destroyed.

The protocols also provide for wide-ranging protection of civilians and prisoners of war, including a prohibition on the recruitment of child soldiers, protection of women and children from indecent assault, and respect for medical personnel on the battlefield.

Bombed bridge in Novi Sad, Serbia, 1999 (pic: ICRC)
Serbian bridges were hit during Nato airstrikes in 1999 (pic: ICRC)
"I think the protocols have achieved a huge amount," says Louise Doswald Beck, director of the Geneva-based Centre for International Humanitarian Law (UCHIL). "They put a stop to the idea, introduced in the Second World War, that civilian morale was a legitimate target."

But although more than 160 countries have ratified the additional protocols, that does not mean they are universally respected. A particular point of contention is the distinction between military and civil objects.

During the Nato bombing of Serbia in 1999 for example, many bridges were targeted. "When does a bridge become a military object?" asks Frits Kalshoven. "Opinions differ; some say you should simply destroy all the bridges, others say you should attack them only if you believe the other side is about to make use of them."

War crimes tribunals

The 1990s also saw the genocide in Rwanda, and the massacre of Bosnian Muslim men and boys in Srebrenica. When these atrocities were taking place, the Geneva Conventions, and their additional protocols, might as well not have existed.

"I think this was a crisis moment for international humanitarian law," says Jean-Marie Henckaerts, legal adviser at the ICRC. "Not enough was done to stop these violations, as we now know."

Since then the ICRC has stepped up its work educating armed forces around the world about the laws of war. Mr Henckaerts believes that while the Geneva Conventions were clearly not respected in Rwanda and Bosnia, the fact that war crimes tribunals were set up for both cases shows that the world is much readier to prosecute those who commit violations.

"And we have the permanent international criminal court, it's the first court in history that has not been set up just in reaction to a specific armed conflict. The world today is much better equipped to enforce these laws, and I think the laws are increasingly better known and respected."

'War on terror'

One problem recognised by all international law experts however is the role of the Geneva Conventions in new forms of war, in particular the so-called "war on terror".

"When you invent new terms like 'war on terror' you create difficulties," says Mr Kalshoven. "In effect it suggests that the theatre of war is the entire globe."

Mr Kalshoven believes the term is being used as an excuse to apprehend and detain people in a way that is not really legal.

"If you detain someone, say the Taleban on the battlefield in Afghanistan," he explains, "then those detentions can fall under the Geneva Conventions governing prisoners of war.

"But if you come across someone in Sweden, and detain them indefinitely because, you say, there's a war going on, then I say you are talking nonsense."

"The trouble with expressions like 'war on terror' is that they are far too emotional and have no legal meaning," agrees Ms Beck. "They are being used to muddy the waters. We need to stick to the official term 'armed conflict'."

Both Mr Kalshoven and Ms Beck reject the idea, suggested by some in the United States, that the Geneva Conventions need to be rewritten to reflect modern warfare. Instead they argue that the Conventions are adequate for genuine wars, and that the Additional Protocols above all have brought invaluable protection to civilians caught up in conflicts.

"The protocols were a huge step forward," says Ms Beck. "They have made the distinction between military and civilian objects, and most governments respect that."

"Look at how armies attack cities now," adds Mr Kalshoven. "Many like Nato or the US are selecting their targets carefully, they have even refined their weapon systems. In that, the protocols are a huge success."

Q&A: US military tribunals
07 Jun 07 |  Americas

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