An Cosantóir

An Cosantóir October 2019 www.dfmagazine.ie 16 | "Calamitous events and atrocities have repeatedly driven the development of international humanitarian law. The more offensive or painful the suffering, the greater the pressure for accommodating humanitarian restraints." – Theodor Meron S eventy years ago, commencing on 21 April 1949, a diplo- matic conference was convened by Switzerland at which the attending delegates were mindful of the enormous horrors of the Second World War. (As stated by the president of the ICRC in 2019: "The battlefields and the Holocaust had brought humanity to the edge of the abyss and laid bare the glaring gap in legal protection for civilians.") As often noted, however, war entails human losses, suffer- ing and pain, as well as destruction and devastation, and the delegates at Geneva in 1949 were always going to be presented with this age-old tension between the relentless demands of military necessity and humanitarian considerations originally prescribed under the St Petersburg Declaration of 1868 which sought to "…fix the technical limits at which the necessities of war ought to yield to the requirements of humanity…" A 'battle', if you like, between those who must plan and fight wars against those committed to reducing the suffering caused by war - an uneasy equilibrium. In this regard, the adoption of the four Geneva Conventions of 1949, were without doubt one of the most significant developments in attempting to calibrate this delicate balance. The 1949 Geneva Conventions updated and added to the earlier Geneva Conventions of 1864 and 1929, and supplement- ed the Hague Conventions of 1899 and 1907 in regard to the protection of civilians. The Geneva Conventions of 1949 dealt with sick and wound- ed military personnel (Conventions I and II), prisoners of war (Convention III), and civilians (Convention IV). Today, these four Geneva Conventions are among the very few international trea- ties that have been universally ratified, not least because they reflect universal values of ethical behaviour. Significantly, the 1949 Conventions secured the place of the International Society of the Red Cross (ICRC) as the principal protector and enunciator of international human- itarian law (IHL). In 1977 IHL responded to tectonic shifts in warfare arising from the so-called 'wars of self determination' in Algeria and Vietnam with additional protocols supplementing the Conventions. The Conventions and their additional protocols fundamen- tally underpinned, through prescription in treaty, the axiomatic principles of 'humanity', 'necessity' 'distinction' and the 'prohibi- tion of causing unnecessary suffering', structuring what were referred to at the Nuremburg trials as the 'elementary consider- ations of humanity'. There are still very significant challenges, as recently outlined by the president of the ICRC in respect of the ongoing conflict in Syria; one being that "war is being conducted by all sides in ways that repeatedly violate IHL and the principles of proportionality, precaution and distinction." The modern battle space, in the context of Afghanistan, Iraq and Syria, is complex, as aptly set out by former ISAF command- er, General Stanley McChrystal: "Supply lines of material, money recruiters, handlers and, most importantly, volunteers, stretched to Riyadh and Aleppo, Tunis and Hamburg." In 2015 the ICRC recognised that the operational environment of contemporary armed conflict is changing and is increasingly characterised by ever more involvement of civilians in military action (both on the side of states and organised armed groups), and by growing difficulties in distinguishing between fighters and civilians. It is within this paradigm, that the utility of the Conventions and their protocols pertaining to the rules regarding the con- duct of hostilities have often been criticised. US Attorney Gen- eral Alberto Gonzalez, then counsel to the president, said the new paradigm of modern conflict "rendered obsolete Geneva's strict limitations on questioning of enemy prisoners". BY LT COL RICHARD BRENNAN

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