By Prof. (Dr.) Bharat H. Desai
On August 12, 2024, the historic 75 years milestone of the Four Geneva Conventions of 1949 passed almost unnoticed by scholars, media and the decision-makers. We live in a world wherein some 2 billion people (one-fourth of total 8 billion population) are entrapped in 120 plus conflicts. The custodian of these Geneva Conventions, the International Committee of the Red Cross (ICRC) has appealed for according respect and adhering to the thresholds laid down in the Geneva Conventions that have largely codified the customary practices among nations and civilizations since time immemorial.
“The world must recommit to this robust protective framework for armed conflict, one that follows the premise of protecting life instead of justifying death,” ICRC President Mirjana Spoljaric told the reporters at ICRC headquarters in Geneva. The Four Geneva Conventions (along with their Additional Protocols I and II of 1977 and Additional Protocol III of 2005), form the core of the modern International Humanitarian Law (IHL). The four Geneva Conventions are: Wounded and Sick in Armed Forces in the Field (I); Wounded and Sick in Armed Forces at Sea (II); Treatment of Prisoners of War (III); and Protection of Civilian Persons in Time of War (IV). The primary motto of the Geneva Conventions (also called the Red Cross Conventions) is to humanize warfare.
The Challenge of Humanizing Warfare
Historically, wars have been regarded as neither legal nor illegal –something extra-legal. Wars have been considered as the legitimate attribute of sovereignty and an instrument of state action to avenge an injury caused to vital national interests. There has been a movement for “outlawry of war” that culminated (August 27, 1928) into the Kellogg Briand Pact (Peace Pact). For the first time, the 1928 Pact explicitly called for the renunciation of war as the instrument of national policy. Article I of the Pact provided: “The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another”. Earlier, the 1919 Covenant of the League of Nations, an integral part of the 1919 Treaty of Versailles (see International Studies, vol.57, no.3, 2020, pp.201-222) adopted in the aftermath of the First World War, did not prohibit war but it provided machinery (Article XV) to reduce possibility for “any dispute likely to lead to rupture” and having recourse to war. On the contrary, the 1945 UN Charter does not use the term war at all. Instead, it uses phrases such as “use of force” and “armed attack”. The right to resort to war is no more an inherent right of a sovereign State and has been replaced by a general outlawry of war. The UN Charter, in general, does not allow any “threat or use of force” [Article 2 (4)]. Still, only permissible use of force by a UN member state can be “inherent right of individual or collective self-defense” under Article 51 only in cases wherein “an armed attack occurs”. The threshold set for such use of force in self-defense is high since it requires an actual armed attack (not imaginary or anticipatory).
Notwithstanding the robust architecture for the prohibition of threat or use of force under the UN Charter, our world is riddled with numerous armed conflicts between state actors, non-state actors and those waged by terror groups. During 2023, some 59 conflicts of various kinds were reported around the world. On the 75th anniversary of the ICRC, the grave concerns of the humanitarian watchdog are reflections of the growing numbers of violations of the IHL that include targeting of the civilian places such as hospitals, places of worship, schools, ambulances and refugee camps. The resulting colossal damage comprises killing of civilians and the humanitarians (aid workers) as well as destruction of heritage sites. Many of these conflicts have witnessed “rape under orders” and “use of sexual violence as a weapon of war” (Author, SIS Blog: March 11, 2023; June 22, 2022). When the IHL “violations are committed with impunity, this fuel further cycles of violence often resulting in protracted armed conflicts that span decades”, the ICRC said. This ominous reality was underscored on August 15, 2024 by Volker Türk, the UN High Commissioner for Human Rights, as the number of Palestinians killed in Gaza by the Israeli Defense Forces, in the aftermath of October 7, 2023 brutal attack by Hamas, passed the dark milestone of 40, 000 including death of at least 16,456 children. “Most of the dead are women and children. This unimaginable situation is overwhelmingly due to recurring failures by the Israeli Defense Forces to comply with the rules of war”, the UN High Commissioner said. There are also reports (August 14, 2024) by the humanitarians about rise in children killed and injured in the West Bank.
The gravity of the humanitarian crisis can be seen from the UNSG’s May 14, 2024 report on the Protection of Civilians in Armed Conflicts wherein he observed that in many conflicts — including issues on the Council’s agenda such as the Democratic Republic of the Congo, Myanmar, Somalia, Syria, and Ukraine — “compliance with international humanitarian law and human rights law is often lacking…and the demands of the Council’s protection of civilians resolutions of the past 25 years have gone largely unheeded”. In fact, during 2023, “hundreds of thousands of civilians were killed or suffered appalling injuries as victims of deliberate or indiscriminate attacks, as well as purportedly lawful attacks under international humanitarian law.” The UN recorded, in 2023, more than 33,443 civilian deaths in armed conflict, representing a 72% increase over 2022. In a 2024 Policy Brief, the Office for the Coordination of Humanitarian Affairs (OCHA) reviewed the UN Security Council’s consideration of its protection of civilians’ agenda during the years 2019-2023. It notes that the UNSC has consistently integrated protection language into country-specific resolutions, including in the mandates of peace keeping operations, most of which are called upon “to investigate, monitor, analyse and report on IHL and IHRL [international human rights law] violations and abuses”. It adds that the most common protection of civilians-related listing criteria for Security Council-authorized sanctions “relate to violations of IHL and IHRL abuses.” Notwithstanding a series of UNSC resolutions, including enforcement measures taken under Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) of the UN Charter, many remain unheeded year after year by the warring parties. The UNSC is unable or unwilling to press for strict compliance with own resolutions since in several cases, the Council members, both permanent and elected, are either directly involved or have strategic interests in respective conflicts that remain on the ‘seized’ items agenda. Thus, the UNSC remains a silent spectator with its leverage remaining ineffective in decades long conflicts (e.g. Democratic Republic of Congo) that inflict colossal loss of civilians and devastation in violation of the IHL. The simmering conflicts in Gaza, Ukraine, and Syria are some current examples of this tragic syndrome. Even after series of confabulations (closed door and open), the divided UNSC has been unable to protect civilians and uphold sanctity of the IHL in war-torn Gaza Strip since October 7, 2023 Hamas-led attacks killed 1200 people in Israel and subsequent unprecedented response unleashed by the IDS that have killed 40, 000 Palestinians.
On July 19, 2024, buttressing the overall gravity of the humanitarian situation in the Occupied Palestinian Territories (OPT), the International Court of Justice (ICJ) gave its Advisory Opinion (as requested by the UN General Assembly vide resolution 77/247 of December 30, 2022) on: “Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.” It invoked application of International Humanitarian Law including the Fourth Geneva Convention Relative to the Protection of Civilians in Time of War (August 12, 1949) to the OPT including East Jerusalem. Declaring the State of Israel’s continued presence in the OPT as unlawful, the ICJ has upheld sanctity of the IHL and IHRL under such egregious violations of the International Law on Belligerent Occupation. This author’s separate SIS Blog article on July 29, 2024 provides a detailed evaluation of the said ICJ Advisory Opinion on the OPT.
In ancient times, especially in the Indian civilization, we find concrete examples in Ramayana and Mahabharata about rules concerning entire conduct of warfare for the parties at war as well as requirements for adherence to humanitarian aspects. In the modern times, the codified form of the IHL seeks to humanize warfare – by trying to limit the effects of an armed conflict. The process for crystallization of basic contours of humanitarian law began in 1864 when 12 nations signed the first Geneva Convention. It was followed by the 1907 Hague Conventions. They agreed to guarantee neutrality to medical personnel, to expedite supplies for their use, and to adopt a special identifying emblem. It is also known as the law of war or the law of armed conflict designed to regulate the excesses of armed conflict. The primary focus has been on limiting the means and methods of warfare as well as limiting the sufferings caused by war. As a corollary, the IHL seeks to protect those that have not, or are no longer, taking a direct part in hostilities; civilians; wounded who give up fighting - prisoners or detainees. Thus, IHL is that portion of international law, which is inspired by a feeling for humanity - it is centered on the protection of the individual in times of war. It has two components - one legal and the other moral. The core principles of IHL comprise: (1) distinction between civilians and combatants; (2) prohibition of attacks against hors de combat; (3) prohibition on the infliction of unnecessary suffering; (4) principle of proportionality; (5) principle of Necessity; (6) principle of humanity.
The 1949 Geneva Conventions have placed the IHL on a concrete footing. Along with the three additional protocols, they comprise an imposing legal corpus of about 576 Articles protecting the person in armed conflict. There are several other international legal instruments that form part of the mosaic of the IHL: the Four Geneva Conventions (1949); The Additional Protocols I and II relating to the protection of victims of armed conflicts (1977); Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954), plus its two protocols; Biological Weapons Convention (1972); Conventional Weapons Convention (1980) and its five protocols; Chemical Weapons Convention (1993); Ottawa Convention on Anti-Personnel Mines (1997); Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2000); Additional Protocol III to the Geneva Conventions Relating to the Adoption of an Additional Distinctive Emblem (2005); the Weapons Conventions 2005 (chemical weapons, landmines, cluster munitions). Due to consistent practice, over a long period of time, by a large number of states, bulk of the IHL is regarded as a part of Customary International Law.
Respecting the Humanitarians
The World Humanitarian Day (WHD) is commemorated after the Canal Hotel bomb attack in Baghdad (August 19, 2003) that killed 22 humanitarian aid workers, including the UNSG’s Special Representative for Iraq, Sergio Vieira de Mello. After five years, the General Assembly adopted resolution 63/139 (December 11, 2008) to strengthen the UN’s coordination of emergency humanitarian assistance. The resolution aimed at “increasing public awareness about humanitarian assistance activities worldwide…to honour all… who have lost their lives in the cause of duty”. The humanitarian aid workers face grave risks in the troubled zones and natural calamities. In 2021 alone, 460 aid workers were attacked: 140 killed, 203 wounded and 117 kidnapped. It shows the graphic reality of the world we live in; growing lawlessness in failed states arising from reigns of terror unleashed by warlords and despotic regimes. Such ‘inhuman’ beings traumatize their own people and others. Can the world remain a silent spectator to watch catastrophe and human misery? It came out vividly on August 15, 2021, when the desperate Afghans stampeded Kabul airport to get out when the notorious Taliban defiantly captured power. It was reminiscent of the marauding hordes running over a territory in medieval times. Thousands of aid workers face grave risks amid violence in countries such as South Sudan, Afghanistan, Syria, Ethiopia, the DR Congo and Yemen. In the first half of 2022, the Humanitarian Outcomes had recorded attacks on 168 aid workers wherein 44 lost their lives. The 2024 Aid Worker Security Report provides spine-chilling figures of the grave risks faced by the humanitarian staff who especially serve the needs of the civilians in the conflict zones. As of August 7, 2024, an estimated 172 aid workers died (out of which 137 deaths took place in conflicts in Gaza, South Sudan and Sudan) whereas in 2023, more than 280 aid worked had been killed in 33 countries. Out of these, 163 aid workers died due to air strikes in Gaza alone in the first three months of start of war (October 7, 2023).
On August 19, 2022, the UN Secretary-General (UNSG) Antonio Guterres had invoked the age-old wisdom that it “takes a village to raise a child” in the context of the humanitarian needs. The metaphor of a village by the worldly-wise UNSG “to support people living through a humanitarian crisis” sums up the very nature of the global humanitarian response to the rising tide of global conflicts and disasters that affect millions of people. In his May 2024 report Protection of Civilians in Armed Conflict, the UNSG has underscored that:
“in the years ahead, a commitment to respect international law, including the Charter of the United Nations, is urgently needed. Central to this, is redoubling of efforts to strengthen compliance by parties to conflict with international humanitarian and human rights law and ensure accountability for violations. States should ensure that “A Pact for the Future” is more than a reaffirmation of their commitment to full respect for the law in armed conflict and that commitments to strengthen protection and investigate violations are matched by practical and effective measures to these ends” (Secretary-General Report, S/2024/385, May 14, 2024, paragraph 4).
The humanitarians seek to recover, sustain and rebuild human lives in conflict zones and other emergencies. According to Global Humanitarian Overview 2024, a record 300 million people around the world (in regions such as East and Southern Africa; West and Central Africa; Middle East and North Africa; Asia and the Pacific; Latin America and the Caribbean region) will need humanitarian assistance and protection due to conflicts, climate emergencies and other drivers. As a result, the UN and its partner humanitarian organizations have appealed for US$46.4 billion to assist 180.5 million people across 72 countries. “Never before have humanitarians been called to respond to this level of need…in ever more dangerous environments,” said Jens Laerke, the spokesperson of the UN Office of the Coordination of Humanitarian Affairs (OCHA).
Strengthening the Humanitarian Architecture
On August 15, 2024, Lisa Doughten, the representative of OCHA, in her briefing on the situation in Yemen to the UN Security Council, drew attention to the grave risk faced by the humanitarians due to deterioration in the operational environment in Houthi-controlled areas. In fact, the Houthi de facto authorities closed the Office of the United Nations High Commissioner for Human Rights in Sana'a, and subsequently forcibly entered the office compound and took control of the UN assets. Yet she observed that the “prioritized humanitarian response plan for 2024 is only 27 per cent funded, forcing humanitarians to make difficult decisions about which vulnerable families and communities would receive support”. Martin Griffiths, the UN Under-Secretary-General for Humanitarian Affairs paid tributes to “all humanitarian workers who often work in dangerous conditions to help others in need” and “those who have lost their lives in the line of duty”.
The beauty, majesty and raison d'être of the humanitarian support is drawn from ancient notion of neighbors helping neighbors. It comprises providing health care and education, food and water, shelter and protection and the hope to live. The UN has put into place an institutional framework that provides support in troubled countries. It comprises: OCHA, Refugee Agency, Children’s Agency, World Food Program, World Health Organization and Inter-Agency Standing Committee. OCHA alone has 2,000 staff working across 29 countries and 34 offices. Cumulatively, they represent the best of human spirit and empathy-in-action. It transcends across rogue regimes, brutality of wars and inherent risks to the humanitarians. The audacity of faith remains unshaken, for instance, as the UN refuses to abandon the DRC mired in endless conflicts even after its compound came under attack, three peacekeepers were killed and the MONUSCO spokesperson in Kinshasha was expelled.
Apart from the UN system, the global humanitarian sentinel, ICRC has 20,000 staff presence amidst 100 conflicts raging in 60 countries where 100 non-state armed groups play havoc. ICRC’s core policy of neutrality enables it to provide relief, succour and protection to the civilians facing brutal violence in conflicts. As the custodian of the 1949 Geneva Conventions and the 1977 Additional Protocols, ICRC has a strong operational legal basis to grapple with humanitarian needs. It can draw vital ‘red lines’ while negotiating to reign in the armed groups.
The human streak for self-destruction – akin to the renegade Kaurava Prince Duryodhana going berserk in the epic Mahabharata – presents a big challenge, as narrated in conversation with this author by the ICRC President Peter Maurer on August 17, 2022, at the online release of the author’s book: Sexual and Gender-Based Violence in International Law (Singapore: Springer Nature). Often the assurances to the humanitarians are belied when the armed groups ambush even a hospital in the middle of a night. It underscores gravity of the challenge in upholding protective shield provided by International Humanitarian Law. Not going to the level of the evil provides an eternal hope since, as Peter assured me, “such forces are not invincible”. He was pleased when I told him about similar prophecy by Mahatma Gandhi, way back in August 1947 (when he undertook fact-unto-death in Kolkata to stop the communal carnage after the partition of India) that “all the destructive forces in the end perish forever”. Hence, we need to have a reservoir of patience, perseverance and abiding faith in humanity to tame the beast of vengeance and ruthless killings in conflict zones even as contributing factors such as geopolitics, specific situations, cultural factors, old colonial interests, proxy wars and idiosyncrasies of the warring parties differ from conflict to conflict. The audacity of hope can best be seen in the steadfast response and engagements of the humanitarian aid workers that seek to humanize warfare by catering to human miseries amidst death and destruction at great peril to themselves.
Road Ahead: Taming the Beast
It is in this backdrop, it appears high time to factor in humanitarian studies as an integral part of the studies in International Law and International Relations. As a corollary, it would make great sense to inject ‘humanitarianism’ in the respective research trajectories of the University faculties and doctoral scholars to seed futuristic ideas that would provide a strong basis for a country such as India to be the Global Solution Provider (here, here, here, here, here, here, here, here). The Indian Prime Minister Narendra Modi is scheduled to speak, after a hiatus of three years, in the High-Level Segment of the 79th Session of the UNGA in New York on September 26, 2024. It would once again provide him a unique opportunity, to unveil the Indian roadmap, among other issues, for taming the beast of conflicts that ravage the world. It could be India’s biggest contribution for securing “a better future to the world, and a better world to the future” (Indian PM Modi's address to the Joint Session of the US Congress; June 22, 2023) especially since “the decisions we make today are going to determine our future for decades to come” (President Biden @ the White House; June 22, 2023).
The forthcoming address of the Indian PM (September 26, 2024) at the 79th UNGA session could also be significant to spell out the Indian vision for follow-up on the outcome – Pact for the Future – of the Summit of the Future (September 22-23, 2024). As a consensual document, the end product may not be bold, innovative and futuristic to save the planet Earth from the brink. Still, it could allow members “to reaffirm the importance of international humanitarian and human rights law, and offer ideas for how to mitigate the barbarous effects of war on civilians” (Security Council Report, August 2024, page 3). The audacity of hope underneath this scholarly prognosis and prospects calls for ‘ideational’ processes on the bedrock of cutting-edge ideas emanating from a University-based research hub, robust and empathetic solutions to humanize the world and a crop of outstanding persons to enable our troubled world to usher into more humane and peaceful planetary future.
This Article is an Original Contribution to the SIS Blog.
It is 10th article by the author in the Blog Special Series: Use of Weapons of War.
1) 27 January 2024: Blog Special – IX: The Odious Scourge of Genocide and the Use of Weapons of War: Making International Law Work (sisblogjnu.wixsite.com);
2) 13 April 2023: Blog Special – VIII: The Conflict Diamonds and the Weapons of War: A Challenge for International Law (sisblogjnu.wixsite.com)
3) 11 March 2023: Blog Special – VII: Rape under Orders as a Weapon of War: A Challenge for International Law (sisblogjnu.wixsite.com)
4) 22 September 2022: Blog Special –VI: Use of Weapons of War and Violence Against Children: A Challenge for International Law (sisblogjnu.wixsite.com)
5) 23 August 2022: Blog Special –V: Use of Weapons of War and the Role of Humanitarians: (sisblogjnu.wixsite.com)
6) 11 August 2022: Blog Special –IV: Use of Nuclear Weapons in War (Hiroshima-Nagasaki Day): A Challenge (sisblogjnu.wixsite.com)
7) 06 August 2022: Blog Special - III: Abused Ammunition as a Weapon of War in the DR Congo: A Challenge for International Law (sisblogjnu.wixsite.com)
8) 22 June 2022: Blog Special-II: Use of Sexual Violence as a Weapon of War: A Challenge for International Law (sisblogjnu.wixsite.com)
9) 28 May 2022: Blog Special-I: Use of Food as a Weapon of War: A Challenge for International Law (sisblogjnu.wixsite.com)
Prof. (Dr.) Bharat H. Desai is (former) Chairperson and Professor of International Law at the Centre for International Legal Studies (SIS, JNU), who served as a member of the Official Indian Delegations to various multilateral negotiations (2002-2008), coordinated the futuristic knowledge initiatives for the SIS Faculty Wall of Honor (2023-24), the Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) and the Making SIS Visible (2008-2013) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam).
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