DAKAR, 23 June 2009 (IRIN) – One hundred fifty years ago the battle of Solferino left 40,000 soldiers and civilians either wounded or killed. With too few doctors on hand, Swiss civilian Henry Dunant helped villagers care for the victims. Underscoring the direct and dire impact of war on civilians, his experience led him to found the International Red Cross Movement, which celebrates its anniversary on 24 June.

The Red Cross Movement initiated a convention to establish the laws of war, which was eventually passed in 1949 as the Geneva Conventions, which set out to protect combatants, prisoners and non-combatants in conflict. Additional protocols in 1977 stipulated protection of civilians in international and internal conflict.

Ambiguity has grown over what constitutes a war and what is a criminal attack, over who is a party to conflict and who is a civilian. IRIN asked humanitarian and legal experts how conflict has changed in the 21st century and whether the Geneva Conventions and the additional protocols still hold when it comes to protecting civilians in conflict.

How has conflict changed in the 21st century?

Mary Kaldor is a professor and director of the Centre for the Study of Global Governance at the London School of Economics and Political Science. Her books include The Imaginary War (1990), New and Old Wars: Organized Violence in a Global Era (1999) and Global Civil Society: An Answer to War (2003).

The battle of Solferino was very different from contemporary conflict – warring parties then tended to be armies that attacked each other and the main parties to conflict were states. Now the main violence is committed against civilians.

Now wars are sometimes not even declared to be wars, so people could argue the Geneva Conventions do not necessarily even apply. We see a mixture of organized crime, wars and human rights violations – the Sierra Leone conflict being a typical example of that.

Photo: Abdullah Shaheen/IRIN
A child injured in conflict in Afghanistan (file photo)
In current counter-insurgency wars in Iraq or Afghanistan, the United States has said it cannot distinguish between combatants and civilians.

Knut Doermann is a legal adviser at the Legal Division of the International Committee of the Red Cross headquarters in Geneva and is author of Elements of War Crimes under the Rome Statute of the International Criminal Court.

Perhaps it is true to say that the complexity of situations has increased today. When you have non-state armed groups splintering into different groups for instance, how do you interact with each of them? Do they have sufficient knowledge of the law?

Distinction [between a civilian and a party to the conflict as outlined in Additional Protocol 1 in 1977] is increasingly complex. Civilians lose their protection when they take direct part in hostilities, but what does this mean? Between giving food to a soldier and killing a soldier there is a vast grey zone.

Hugo Slim is a humanitarian scholar and visiting fellow at the Institute of Ethics, Law and Armed Conflict at Oxford University and author of the 2008 book, Killing Civilians: Method, Madness and Morality in War.

People have been hurting each other in war in much the same way for thousands of years. As technology changes we will need to continue to adopt new conventions and protocols on new weaponry. This is already the case as we can see with the new cluster munitions treaty [passed in December 2008], the 1997 international treaty to ban landmines and the 1997 chemical weapons convention.

Do the Geneva Conventions and protocols go far enough to protect civilians in conflict, or does the 21st century need something different?

Knut Doermann: The Geneva Conventions are an indispensable tool to protect civilians in international conflict. Their great benefit is that they are universally ratified and so recognized by all. Their core provisions – such as the obligation not to attack civilians – are undisputed, even for non-state parties. When the additional protocols were negotiated in 1977 it was against a backdrop of guerrilla warfare which by its nature involves intermingling with the civilian population, so this is not new.

Photo: Manoocher Deghati/IRIN
Cluster bombs in Lebanon (file photo)
What is more challenging is respect for the conventions. Too often you see lack of political will [or] lack of knowledge or training to respect the rules. International tribunals can create a deterrent effect and bring perpetrators to justice, but states must first meet their obligations.

International scrutiny of conduct in an armed conflict situation is an important aspect with a view of improving compliance with international humanitarian law. In order to be effective and credible, such scrutiny must not be – or be perceived as being – selective.

The principle of distinction may require more clarity. To try to clarify the grey zone, the ICRC has put out guidance on what it means to take direct part in hostilities.

And we worked with 17 states to develop the 2008 Montreux document which describes international law as it applies to the activities of private military and security companies.

Mary Kaldor: The last thing we want to do is throw away international humanitarian law (IHL), but it has to be complemented by international criminal and human rights law to capture some of the aspects that IHL cannot. For instance, you can argue that it is a military necessity to kill a civilian in war to bring about a greater good; but under human rights and domestic law the only justification for killing a civilian would be self-defence.

Hugo Slim: The Geneva Conventions go far enough. The spectrum of violence has always been murky – the ICRC uses the terms “international conflict”, “internal conflict” and “internal disturbance” to qualify them – these should cover most murky areas.

But we do need more clarity on the question of civilian ambiguity and what constitutes direct participation in conflict. This could require an additional protocol, or a new guidance note.

The truth is, when the Geneva Conventions do not work it is not because people are trying to find a loophole in the law, but because they are rejecting values of distinction and proportionality.

Francoise Saulnier is legal director of Médecins Sans Frontières and has been framing the NGO’s legal responsibility in conflict for 18 years. She is author of The Practical Guide to Humanitarian Law.

Any criticisms [of] humanitarian law that derive from the war against terror are unfair. Asymmetrical conflicts – international and internal, guerrilla warfare and terrorism – have been a part of…conflict for centuries. These international conventions have already taken into account and arbitrated the various dilemmas experienced during decolonization wars and the civil wars that occurred after independence in many developing countries. As such, they tackle all forms of insurgency and counter-insurgency military operations.