The Geneva Conventions and the New Warfare:

The Myth of “Civilized” Wars in an

Uncivilized (but Cost-Effective) World

by

Michaelbrent Collings

 

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment.[1]

 

     The Geneva Conventions were adopted beginning in 1864 as rules by which warfare could be pursued in a more “civilized” fashion.[2]  Of course, by this it was not meant that warfare would then continue without suffering, but rather that it would be more confined to actual combatants and that needless suffering against noncombatants would be correspondingly ameliorated.[3]  Over the next hundred and fifteen years, the Conventions were amended and added to until today they stand in force as some of the preeminent rules of warfare, governing over one hundred party nations.

     However, for all their widespread influence and the refining work that has been done on them through the years, recent events highlight certain critical flaws in these conventions: flaws which must be recognized by the international community and rectified to better govern today’s methods of warfare.  To be certain, warfare has changed greatly since the days when the first of the Conventions was adopted: ball-and-musket troupes have been replaced by smart bombs and Patriot missiles.  Cannon with grapeshot have bowed to ICBM’s and chemical/biological weapons. 

Further, grass roots support of new regimes has been replaced by rule by fear and fiat, and gone are the days when massive armies had to be raised or purchased in order to threaten a nation or civilization.  Now, small groups pose as great a threat – if not a greater one in certain respects – as many entire countries do.

Certainly, the Conventions must also evolve if they are to remain more than a paper tiger, growling for attention but utterly unable to effect any serious change whatever.

     This paper will point out some of the current flaws in the Geneva Conventions, as measured by their ability to pursue their goals of minimizing harms to noncombatants.  This paper will first address the issues of the evolution of warfare and in particular the integrated fashion warfare is now carried out: not only against military objectives, but also against societies.  It will then discuss the differences between the adversary regimes that Geneva Conventions signators fought at the inception of the Conventions and those who stand across the battlefields from today’s Convention nations.

     This paper will pose certain questions in the hopes that they will prompt responses in the form of needed changes to the Conventions, and perhaps a rethinking of the basic attitudes and rationales that will fuel our search for better ways to prevent and punish inhumane warfare, be it in the form of the dictatorial country whose leadership is willing to sacrifice its own citizenry to forward its own self-serving goals, or the small group of terrorists willing to end their own lives if the return on such an investment will be the destruction of thousands of the lives of their “enemies.”

 

Part II - Changes in Warfare

 

     As previously alluded to, warfare has changed in the hundred and thirty-eight years since the original Convention was conceived and adopted.  These changes have come at a base level in that the technology of battle instruments has changed significantly.  As stated above, anthrax is being developed in lieu of grapeshot.  Muskets have been replaced by assault rifles.  And governments continually develop completely new war instruments and weapons that were not even imagined at the time of the Conventions: examples like Stealth Bombers, Smart bombs, and ICBMs spring readily to mind, not to mention the horrors of modern biological warfare.

     But more and beyond these changes, the functions of society have also changed, and with them, so has warfare. 

     To illustrate: in World War II (several years before the Conventions against hostilities targeting civilians were drafted and approved), the British and the Germans staged massive air attacks against one another.  Because of technological limitations, these attacks often took the shape of “carpet bombing” over huge geographical spaces.  These spaces included both civilian and military populations, resulting in heavy civilian casualties. 

It was specifically to guard against this type of action that Convention (IV) Relative to the Protection of Civilian Persons in Time of War was adopted in Geneva, 12 August 1949.  This contained provisions for the treatment of civilian persons in occupied and unoccupied territories,[4] as well as various other Articles governing attack of non-combatants versus those who had taken up arms.[5] 

On June 8, 1977, the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) was adopted. This Protocol expanded the already-extant Geneva Conventions by including further admonitions against incurring damage to civilian installations and exhorting greater care in avoiding civilian turmoil and disruption.  Specifically, Article 48 (Basic Rule) provides:

 

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.[6]

    

     This basic rule is expanded in other Articles.  In particular, Article 51 provides for the “Protection of the civilian population.”  The Article prohibits acts of terror directed specifically against civilians.  It also prohibits “indiscriminate attacks”: i.e.,

 

(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

     The Protocol then goes on to elaborate the kind of attacks which are “to be considered as indiscriminate.”  They include attacks which treat “as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.”[7]  Additionally prohibited are those attacks

 

which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.[8]

Obviously, this kind of proviso begs the question: what kind of incidental damage is to be considered “excessive” in relation to military advantage gained thereby and the necessary cost/return questions faced by any aggressor or defender?

This question becomes crucial in light of the way that warfare is run in the contemporary battlefield.  Contrary to the carpet bombing campaigns of World War II, today’s conventional warfare[9] is conducted (at least part of the time) through “surgical strikes.”  Therein, military infrastructures may be disrupted via attacks on sewage processing plants, provision of water, food, etc.  For example, a “pinpoint” attack may be used to knock out the water supply for a military installation.

     But what happens then to the civilian population that is reliant upon the same infrastructure to provide them with their life necessities?  If, in the course of destroying a major military installation, ten thousand civilians are forced to leave and relocate because they no longer have water, sewage disposal capabilities, and the like, will that be considered “excessive”?  How about if twenty thousand are forced to relocate? 

     What if, as a result of these “surgical strikes” infrastructure collapses result in ten thousand civilian deaths?  Recent events have shown that such is not an impossible nightmare, but rather the reality.  The Afghan refugee camps provide startling examples of the great numbers of people who may be relocated or exposed to risk of life and limb as the result of any military operation, no matter how “surgical.”[10]

     Clearly, the method and manner of modern warfare is a far cry what it used to be.  The highly integrated fashion in which today’s societies are run mandate that, to take out a military installation will also require that the attack be incidentally against civilians.  But if a military installation uses the same water pipeline as the adjoining city, will disruption thereof be permitted?  And if not, who will make the move to stop such action?

     Additionally, though attacks against the civilian population “by way of reprisals are prohibited,” what of attacks against the civilian population by its own leadership?  This brings us to the second point of interest: the change in attitudes of the leaders of hostile nations and those who would harm foreign populations in great number.

     Even more difficult questions are raised by the changed landscape upon which wars are fought.  Will injunctions against civilian attacks cover the threat of cyberwarfare[11] - or, as some call it, “netwar”[12]?  First of all, do the Conventions or other, similar treaties adequately cover the kinds of attacks entailed in such warfare?  For instance, attacks against “Israeli and American web sites being waged by Pakistani-based hackers in support of the Palestinian ‘al-Aqsa’ Intifadah”[13]?  And if they do cover the type of warfare, will they be effective as modes of discouraging the “dispersed, small groups who communicate, coordinate, and conduct their campaigns in an internetted manner, without a precise central command”[14]? 

The Conventions are geared at prevention of abuses by countries, but whether they will be effective at preventing abuses by individuals or even “quasi-national” movements is questionable at best.  Especially since, unlike with countries, groups such as al-Quaeda operate in a structure of dispersed nodes which are likely to continue working even if the upper level of leadership is removed.[15]  That is to say, unlike a country, whose government can be removed or destroyed, the warriors of our new century cannot necessarily be stopped by removing their upper level.  The next level down will simply step up and continue the conflict.  Or, better said, one of the levels to the side will simply move over to occupy the new vacuum. 

 

Part III - Changing Roles of Hostility

and its Instigators in Today’s World

 

     As mentioned above, warfare has changed drastically in recent years.  Saddam’s attacks against the Kurds, the forays into use of chemical and biological weapons (CBW’s), and the September 11 attacks are all examples of this.  And if warfare has changed, that must mean that those who conduct it have changed as well. 

It is not clear whether the changes began with changes in governmental posturing or ideologies, which then led to the adoption of new warfare strategies; or if instead new warfare strategies led to the need of leadership of countries or groups to change their attitudes to meet the challenges of the “new” warfare.  There is even a third possibility, one more likely than ever in light of recent events:

It may be that the surge in terrorism in all its iterations and the ability and willingness of despots like Saddam Hussein to sacrifice their own people is not a new idea.  Rather, what is new is that current technology makes such aspirations not only possible, but reasonable and (perhaps most important) cost-effective.

Support for this last is shown by the fact that people have been seeking to construct CBW’s for literally hundreds of years.  In the 14th-century siege of Kaffa, the attacking force tried to infect the city’s defenders by catapulting corpses of those who had died of Plague over the walls to induce an epidemic.[16]  The British attempted to use smallpox to “reduce” hostile tribes of Native Americans.[17]

These and other attempts met with varying degrees of success, but it is certain that technology was not sufficiently advanced to allow for the sort of mass destruction perpetrated by a determined individual or small group that is now possible.  There has always been a built-in deterrent in that biological attacks have been, quite simply, too ineffective to spend time in comparison to other methods of attack.  This deterrent, though, has been lessening as mass attacks through CBWs and terrorist actions become cheaper and easier, now rearing their heads as the most effective means of getting attention and moving a political agenda.

     So what is to be done in the face of these new threats?  What is the answer?  In 1998, Dr. Keith B. Payne advocated increased nuclear stockpiling to deter Iraq and other “regional challengers” from using CBW’s.[18]  However, it seems doubtful that the threat of mass destruction would serve equally well to fight terrorists who are already few in number: there is no country to “nuke” into submission, no civilian base to frighten into compliance.  So it seems that nuclear weapons are no longer the “ultimate coin of power.”[19]  Rather, the “poor man’s neutron bomb”[20] is a much more viable form of specie.
     Further thought must be given to those nations which are not necessarily instigators of terrorist activity per se, but do lend their support to those willing to engage in such pursuits.  Obvious examples of this are the alleged supports given to suicide bombers by Palestinian authorities.  In such a situation, several questions must be asked. 

First, how can such subtle supports be addressed?  It seems apparent that such must indeed be addressed, and addressed directly.

Second, and perhaps a better place to start: how effective will any sort of prohibitions against such activity be?  In the case of the Palestinian government (or one that either is or perceives itself to be similarly situated), how effective will prohibitions against actions that cause “indiscriminate” or “excessive” civilian casualties[21] be in light of the fact that by the time such offenses ripen into a cause of action, such a government is likely to be either on the verge of collapse or will have so completely shown its willingness to thumb its nose at international treaties that such treaties will be completely superfluous. 

More than that, though, the under the Conventions as currently written, such attacks may actually be legal.  The prohibitions against civilian attacks are provisions against unnecessary attacks.  But what is necessary, ultimately boils down to a cost-return analysis.  Aggressor countries who are instigating hostilities must ask themselves what is the best way to conduct a war.  And the answer will always be “The best way to conduct a war is to kill as many people as possible for a cheap a price (in manpower, money, etc.) as possible.”  Thus, it may be argued that any action which causes great death on the other side in return for a small investment in capital outlay – the standard goal of terrorist activities – is per se ”necessary.”  Because any government finding themselves in a war whose resolution will change the political environment will have an argument that anything they do to further their self-preservation is inherently necessary.  The argument seems somewhat tautological, but it is also one that will be highly attractive to a great number of small countries with limited resources.

 

Part IV – Conclusion

 

Lindsay Moir says that “Humanitarian law is inapplicable in peacetime.”[22]  The current geopolitical atmosphere highlights the truth of this statement.  On its face, Moir’s statement goes to the fact that humanitarian law is largely focused on enjoining cruel acts during times of war, so definitionally it will not come into play during peacetime.  But on another level, Moir’s statement could be read to propose that humanitarian law only comes into play when it is too late: when the aggressor has struck in clear contravention or disavowal of humanitarian concerns, such law has already ceased to be effective. 

Another issue is brought up well in the Harvard Law Review Note Responding to Terrorism: Crime, Punishment, and War.[23]  There the author very astutely points out the fact that terrorism not only raises the threat of mass destruction from hitherto unsuspected sources, but also raises the specter of confusion: how is “warfare” to be perceived when that warfare is the restult of single people or small groups, ostensibly acting outside the auspices of government authority?  Is it a “war” act?  A “crime”?  Of course, thwarting international treaties can be both, but the fact is that the urban warfare and terrorism of the new millennium will require a rethinking of what we are seeking to achieve through the laws we choose to enforce. 

     All the foregoing boils down to the base question: what are we hoping to achieve in the passing of laws, treaties, and conventions?  Clear answers to this question will focus our efforts more effectively as we come to grips with the rapidly-changing landscape of warfare and politics.  In an age where terrorism, warfare, and crime mix and merge to a fluid morass that threatens to overwhelm the global political landscape, we must be diligent in shoring up defenses to the new threats we will encounter.

     The solutions to all these problems will require much thought and effort.  Much is unclear.  But what is clear is that the Geneva Conventions are less effective deterrents against hostilities that harm civilian populations than they once were.  Additionally, the efficacy of the Conventions in this respect is most likely to lessen further.  In an age where interlocking civilian and military infrastructures are the norm, and where aggressor nations are ever-more likely to have limited funds to utilize in warfare, new rules must be thought of in order to assure ourselves that the innocent are protectable… and truly protected.