The Geneva Conventions are a series of international treaties whose development began in 1864 and culminated in 1949. The goal of the first convention was to protect and preserve the health and dignity of captured persons during armed conflict. After the events of WWII, the 1949 convention took on new humanitarian importance and managed to gain ratification by every UN member state. The standards set forth by the Geneva Conventions remain the preeminent guidelines for international human rights during war. Additional protocols were added to the Geneva Conventions in 1977 which have not been ratified by the United States.
Key Provisions
The first exemplary component comes from article three, section one of the 1949 treaty. Regarding people who took no action in the hostilities, including soldiers who laid down their arms, were injured, or were detained, this clause prohibits acts such as:
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; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court.
As these restrictions show, the conventions prioritize the twin pillars of physical health and moral dignity. Another excerpt from article twenty-seven of the 1949 treaty asserts a similar goal in stating:
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
Though well intentioned, these protections only apply during periods of armed conflict. This is just one of the many limitations that affect the ability of the Geneva Conventions to adequately protect the safety and dignity of people affected by violent conflict.
Weak Enforcement of Policies
The main body of enforcement for the Geneva Conventions is the International Criminal Court (ICC) which was established in 2002. For more specific information on the ICC, check out the ACE brief here. The ICC’s creation was an important step towards enforcement, however its effectiveness in holding violators to account has been constrained by its ties to the United Nations. The five permanent members of the UN Security Council (UNSC) have used their veto power to constrain the ICC’s ability to investigate potential war crimes, even if the nations are not party to the ICC themselves. The UNSC influence has played a major permissive role in recent violations of the Geneva Conventions, as the following examples will highlight.
Following the invasion of Iraq in 2003, British soldiers were accused of war crimes violations related to their treatment of Iraqi detainees. A report from ICC prosecutor Fatou Bensouda confirmed that “there is a reasonable basis to believe that members of the British armed forces committed the war crimes of wilful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence.” Nonetheless, Bensouda concedes that British authorities lacked the necessary forensic evidence needed to secure convictions for the offenses. The UK did not directly prevent the ICC from investigating the conduct of its armed forces. However, the geopolitical influence wielded by the UK exempted it from the level of international scrutiny often faced by other states.
UNSC veto power has allowed Geneva violations stemming from the Syrian civil war to go unpunished. The Russian-backed Assad regime has been accused of intentionally targeting civilians throughout the conflict. While this should have provided the basis to refer Syria to an ICC investigation, Russia and China have both used their veto power to prevent this from happening. The Syrian government benefits immensely from its alliance with Russia because the regime has been able to commit war crimes and atrocities with limited accountability. Therefore, the ICC’s affiliation with the UN restricts its ability to enforce the Geneva Conventions because the P5 nations seek to protect their respective alliance commitments.
Since the state’s creation in 1948, Israel has beena accused of trying to solidify its physical and cultural security by displacing the Palestinian Arab population in order to permit the settlement of Jewish immigrants from around the world. This could represent a violation of article forty-nine of the fourth Geneva treaty, which states that an occupying power may not transfer its own civilian population into the occupied territory. The same article also prevents the forceful transfer or deportation of protected persons from the occupied territories, an offense of which Israel has also been accused of. It is important to note that these arguments are highly disputed. Earlier this year, the ICC stated its ambition to investigate war crimes committed in Israeli and Palestinian territories since 2014. Israel’s Prime Minister at the time, Benjamin Netanyahu, issued a statement that the nation would not cooperate with an ICC investigation because he viewed it as rooted in antisemitism. The investigation is planned to move forward with or without Israeli support. It is unclear whether Israel’s Western allies, namely the United States, would leverage their influence to prevent the imposition of major punishments.
ConclusionAs these examples have shown, the enforcement of the Geneva Conventions by the ICC has been limited substantially by UN associations and other geopolitical relationships among states. The result has been that not every instance of violation is treated the same. Investigations can proceed freely, as long as they do not interfere with the interests and alliances of influential nations, such as Russia, the United Kingdom, or the United States. It is this conflict between humanitarian justice and national interests that continues to stunt the effectiveness of the Conventions in dealing with modern conflict. The United States’ refusal to ratify the additional protocols and the ICC represents an effort to distance national interests from court proceedings. In other words, leaders tend to favor flexibility (and the ability to avoid accountability) over binding commitments in the name of abstract values. As a non-party, the US is able to avoid direct scrutiny of its wartime conduct by bodies like the ICC. In recent years, the US government has gone so far as to take up a confrontational posture towards the court. The Trump administration attempted to further limit the court’s ability to investigate US activity, and even imposed sanctions on ICC officials (these have since been ended by the Biden administration and Secretary of State Anthony Blinken). While the current administration has seemed more favorable towards the ICC, full endorsement and ratification remain unlikely. While the Geneva Conventions remain an important component of international law and global human rights, competing domestic and international commitments have undermined enforcement on numerous occasions.
