“On the Brink”: The Geneva Conventions at 75

by | Mar 27, 2024

Geneva Conventions

Editor’s note: The views expressed in this post are those of the author and not necessarily those of the ICRC, HLS PILAC, or other workshop participants.

From March 12-13, 2024, Harvard Law School’s Program on International Law and Armed Conflict (PILAC), the International Committee of the Red Cross (ICRC) Washington D.C. Delegation, and the U.S. Military Academy at West Point’s Lieber Institute for Law & Warfare hosted their annual trilateral workshop on the law of war.

Arriving in Cambridge from the United States and abroad, academics, military practitioners, and other law of war experts gathered for two days of substantive discussion and debate on some of the law of war’s most pressing questions. The workshop, however, was more than just a forum to share ideas and perspectives; it offered a chance to look back on the 75-year history of the 1949 Geneva Conventions (as well as the 160-year history of its predecessor, the 1864 Geneva Convention).

Amid violence and devastation in Gaza, Sudan, Myanmar, and Ukraine, observed one participant, it was now more important than ever to “pause and take stock on what we have achieved, what is at stake, and realign with what States wanted 75 years ago.” Participants conferred on a wide range of issues spread across eight sessions. Topics included challenges to interpreting and applying the Geneva Conventions, the blurring of jus ad bellum and jus in bello, and the varying approaches to the law of war among its communities of practice.

As diverse as the topics, speakers, and viewpoints were, several common themes emerged. These included: recognition that the 1949 Geneva Conventions have profoundly shaped our world and our understanding of armed conflict; the importance of securing their role in the future; and the goal of preserving relationships among increasingly diverse and divergent communities of practice under the Conventions. Through rigorous discussion and debate, participants considered these themes and others, as summarized below. (In accordance with the Chatham House Rule, all statements are related anonymously.)

The Past, Present, and Future of the 1949 Geneva Conventions

As with the original Geneva Convention of 1864, a brutal war inspired States to convene in 1949 to update and expand rules to protect victims of armed conflict. The result of that meeting—the four 1949 Geneva Conventions—was extraordinary. In addition to their universal ratification, the content of the Geneva Conventions was radical, especially for its time. As one participant put it, the Conventions represented a “moral and legal revolution on the norms regulating warfare.” This revolution saw the introduction of now-elementary legal ideas such as the right to humane treatment in all cases and the protection of civilians as key objects of regulating the conduct of war. In many ways—some measurable, others immeasurable—the payoff has been significant. As one participant emphasized, military commanders and practitioners of the law of war now have internalized the Conventions’ fundamental tenets. The fruits of the Conventions are apparent, though often overlooked, in the forbearance and humanity that mark the planning and operations of responsible armed forces.

Yet, as some participants argued, the Conventions are a product of their time and reflect that period’s limitations. For example, some participants noted that while the Conventions have been interpreted to apply to every domain of terrestrial war, questions remain as to whether the Conventions are adaptable to newer, more complex domains, such as space. Other participants observed that while there is agreement among States as to the Conventions’ broad strokes, enormous disparity persists in how the Conventions have been interpreted and applied in the last 75 years. Still other participants questioned whether the Conventions were flawed from their very inception, framed and developed as they were by the victorious Allied powers of the Second World War, to the exclusion of other perspectives, such as those of formerly colonized regions, as well as non-State groups.

Compounding the difficulty of adapting the Conventions to emerging conflict is the question of how to interpret them in a principled fashion. According to one workshop participant, far-reaching aspirational interpretations that stretch the Geneva Conventions without accounting for war’s nature undermine their utility. What made the Conventions successful, the participant explained, was their grounding in reality. Their drafters operated under no pretense of stripping war entirely of its brutality. Instead, the drafters worked tirelessly to identify humanitarian consensus with a clear-eyed understanding of what could and could not reasonably be expected of belligerents. Abandoning the practical for the ideal, it was observed, might scuttle the entire project.

Workshop participants agreed that problems persist in preserving and advancing the legacy of the 1949 Geneva Conventions. Prominent among these is the perception of a deteriorating liberal order, which has reopened the door to arguments once previously thought of as discredited in the law of war. This includes, for example, the idea of State exceptionalism, the notion that States are now faced with threats so different and extreme, they are effectively excepted from compliance with the Conventions. Such arguments have been offered to justify the use of new and destructive weaponry, increasingly permissive takes on proportionality and military necessity, and even torture. Likewise, a transactional view of the law of war has resurfaced as well, to wit, a revived discussion of the role of reciprocity in regulating conflict.

Renewed attention has also extended to foundational assumptions about the law of war, including the independence of the jus ad bellum and jus in bello regimes. Participants generally agreed the survival of the law of war depended on preserving the “wall” between jus ad bellum and jus in bello. However, participants varied in their assessments of its integrity. For some, the wall was damaged, but nonetheless doctrinally intact; for others, the wall had crumbled completely. Yet still for others, the wall was and has always been more permeable than commonly believed. One participant noted that even while some dismiss the mixing of jus ad bellum with jus in bello as a rhetorical device used by political leaders to galvanize support for their respective wars, a legal basis might nonetheless exist for reassessing the distinction’s tenability; a decidedly unpopular view and, as one participant chided, “dangerous” to even entertain.

Finally, there seemed to be consensus that the prospect of a major updating or reworking of the Conventions was dim. Some expressed dismay that future agreements to further limit war’s devastation and fill in gaps in the 1949 Geneva Conventions were so unlikely. As one participant warned, the post-Second World War order is on the brink of collapse, reflecting a moment of “upending, major shifts, dynamics, demands, expression of agency” in law and global institutions. “The world that emerges from this period,” said the participant, “will be shaped by . . . powers most able and willing to act.”

Determinists and Indeterminists

Mirroring the fragmentation of the post-Second World War order is a degree of fragmentation among the law of war’s institutional communities of practice. These communities of practice—including but not limited to the military, academia, and humanitarians—share the goal of interpreting, applying, and upholding the law of war faithfully and encouraging their counterparts to do the same. They often do so, however, dissimilarly. While not a new phenomenon, participants expressed a growing sense that these communities of practice are increasingly dissimilar in their approach to the law of war, perhaps even to an extent that they are now more unalike than alike.

One participant framed the situation as involving “determinists” and “indeterminists.” Indeterminists—often, though not always or exclusively having State affiliations—hew toward readings of the Conventions that maintain flexibility and permit divergences of interpretation. Indeterminists can be “cagey” about committing to one interpretation of the law of war over another, preferring instead to interpret the law of war from a utilitarian perspective (i.e., does it do what is needed now and in the future?). Indeterminists tend to view the Geneva Conventions as broad and adaptable, reflecting the drafter’s intent for them to endure as foundational documents, rather than a detailed and comprehensive body of law dispositive of all questions arising under the law of war.

Determinists, on the other hand, tend to construe the Geneva Conventions and their meaning in far more settled terms. Often by nature of their responsibilities and relationships to the law, determinists strive for firm obligations and clearly established limits on conduct during war. Their perspective on the Conventions as largely settled in meaning is apparent in their products and advocacy, including comprehensive publications, lengthy judgments, and extensive commentaries. Implicit in many of these products is a claim to authoritativeness and finality of meaning.

Not all workshop participants agreed with the determinist/indeterminist construct, however. One participant noted that, to the extent such categories exist, they plot on a spectrum, rather than as a binary framework. Others indicated that even if communities of practice could be divided accordingly, each community nonetheless bears a responsibility to explain its approach to the rest of the world, not just in a leadership sense, but as a matter of establishing what is general practice and opinio juris. Still other participants sidestepped the determinist/indeterminist framework, offering established judicial bodies, such as the International Court of Justice, as the proper organ for interpreting the Geneva Conventions.

Some participants, however, took a more optimistic view. Even while law of war communities of practice have divergent interests, one participant argued, they are in a key position to complement one another’s work and outlooks. For this reason, cross-fertilization of communities of practice is essential and must be borne out of the mutual understanding of the limits of each community of practice. Common Article 1 of the 1949 Geneva Conventions demands nothing less, said the participant, and the costs of not doing so are too high.

Conclusion

Despite their differences, participants shared a common admiration and respect for the 1949 Geneva Conventions. After three-quarters of a century, the Conventions still serve as the moral and legal lodestar for the law of war. In this respect, they represent a profound human accomplishment.

But participants were hardly naïve about the dangers ahead. Grave threats to the Conventions’ long-term viability persist, including: a teetering liberal order; surging nationalism; lack of intellectual rigor and interpretive discipline; and infighting and dissonance in communities of practice. Thus, the participants concluded that survival of the Geneva Conventions requires all its communities of practice to embrace their roles and reaffirm their commitment to the humanity in war that inspired the 1949 Geneva Conventions.

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Thomas Wheatley is a captain in the U.S. Army and an editor for Articles of War. He is also an Assistant Professor in the Department of Law at the United States Military Academy, where he teaches U.S. constitutional and military law.

 

 

 

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