THEMATIC ISSUES

In Hindsight: The Geneva Conventions at 75: Much Work to be Done

On 12 August, the Geneva Conventions turn 75. The International Committee of the Red Cross (ICRC) has described these foundational treaties in international humanitarian law (IHL) as “one of humanity’s most important accomplishments of the last century”. Switzerland is organising an informal visit of Council members to Geneva to mark the occasion and to take a closer look at the meaning and purpose of the Conventions, which have been universally ratified.

In recent years, blatant disregard for IHL has been a feature of conflicts around the world, including several on the Council’s agenda. For the Security Council, the anniversary offers a time for sombre and sober reflection.

What do the Geneva Conventions Say?

The four Geneva Conventions of 1949 and their additional protocols contain rules designed to protect civilians and those who can no longer engage in conflict, such as wounded and sick soldiers and prisoners of war. The Fourth Geneva Convention focuses on civilians and includes detailed provisions on their treatment, status, and rights. It also includes rules relating to humanitarian access, which are frequently referred to in contemporary discussions on the protection of civilians.

All four conventions contain an identical Article 3, which applies to non-international armed conflicts. Among other things, it prohibits acts with respect to persons taking no active part in hostilities. These violations include:

• Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture;
• Taking of hostages;
• Outrages upon personal dignity, in particular humiliating and degrading treatment; and
• The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees widely recognised as indispensable.

The Fourth Geneva Convention also sets out rules relating to accountability for grave breaches. Under Article 146, for example, parties to the Convention undertake to enact legislation that provides for penal sanctions for persons who commit grave breaches.

The Growing Harm to Civilians in Armed Conflict

That the Security Council has continued to play a key normative role in promoting some of the principles that underpin IHL is substantiated in a 2024 policy brief by the Office for the Coordination of Humanitarian Affairs (OCHA) reviewing the Council’s consideration of its protection of civilians’ agenda during the years 2019-2023. The brief describes ways in which the Council has pronounced itself on the obligations of conflict parties, including with respect to the conduct of hostilities and the protections accorded to specific people and objects in conflict. It notes that the Council has consistently integrated protection language into country-specific resolutions, including in the mandates of peace 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-authorised sanctions “relate to violations of IHL and IHRL abuses”.

The Council’s pronouncements notwithstanding, OCHA offers a grim assessment of the status of the protection of civilians in armed conflict, finding that “the existing gap between the growing normative framework and the realities experienced by civilians in conflict-affected contexts across the world has remained, if not widened, in the past five years”.

The Secretary-General’s May 2024 report on the protection of civilians in 2023 similarly observes 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 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”: that year, the UN recorded more than 33,443 civilian deaths in armed conflict, representing a 72 percent increase over 2022. Not all civilian deaths in conflict can be attributed to violations of international law. But the lack of adherence to the laws and norms of war and what ICRC president Mirjana Spoljaric Egger calls the “elasticity” in how IHL is being interpreted are contributing to this high civilian death toll.

Challenges in the UNSC

Why do Council resolutions on protection matters, including in relation to IHL, go unheeded? In some cases, Council members, both permanent and elected, are directly involved or have strategic interests in conflicts under discussion. This has hampered the Council’s leverage in resolving wars and in mitigating harm done to civilians by IHL violations. Conflicts in Gaza, Ukraine, and Syria are notable examples of this.

Longstanding concerns that some members express about interfering in the internal affairs of sovereign states, and a willingness to defer to regional actors even when they are slow to act, can also limit the Council’s engagement. A case in point was the civil war in Tigray, Ethiopia: from 2020 to 2022 some members preferred to have the Council take a back seat to regional actors, severely limiting its scope of action while the fighting raged, with reports of extrajudicial killings, torture, sexual violence, the use of starvation as a military tactic, and the denial and obstruction of humanitarian access.

The war in Ukraine and the war between Israel and Hamas have focused international attention on how great power interests can hamper the Council’s work. Since Russia’s invasion of Ukraine in February 2022, the Council has, by and large, been a bystander amidst reports of attacks on civilian infrastructure, the use of explosive weapons in populated areas, summary executions, torture, and sexual violence. It has adopted only one resolution on Ukraine since the start of the war, a “Uniting for Peace” resolution, which referred the issue to the General Assembly for an Emergency Special Session (ESS) precisely because of Council gridlock. (As this is considered a procedural matter, the resolution was not subject to the veto, which is why Russia was unable to block it.)  Although the General Assembly has adopted seven resolutions in the Ukraine ESS since February 2022, its resolutions lack the political and legal standing of Security Council resolutions and cannot, for example, impose binding obligations on member states under the UN Charter.

A divided Council has also failed to protect civilians and uphold IHL in Gaza during the current war that began with the 7 October 2023 Hamas-led attacks on Israel. The Council’s response to the conflict in Gaza has featured contentious and prolonged negotiations, with multiple failed adoptions. The US, which has provided Israel with political and military backing throughout the war, has severely constrained the Council’s ability to respond to the crisis. It has vetoed three draft resolutions on the conflict. As well, China and Russia have vetoed two US-proposed draft resolutions on the war. The four resolutions that have been adopted on the crisis have largely gone unimplemented. The Gaza conflict has included violations of IHL and IHRL, war crimes, and crimes against humanity, according to a 27 May report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory (OPT), including East Jerusalem, and Israel, covering the period 7 October to 31 December 2023.   

An additional challenge has been the loss of support for some of the Council’s robust tools—for example, peacekeeping and sanctions—which have historically been used to protect civilians and promote accountability. In part, the waning support for these tools reflects perceptions that they are failing to promote peace and security. The value of UN peacekeeping, once an area of broad agreement among Council members, is increasingly being called into question; tasking the AU or multinational actors, such as the multinational security support (MSS) mission in Haiti, are the most widely considered alternatives at present, as reflected in A New Agenda for Peace, the Secretary-General’s July 2023 policy brief. Similarly, some Council members are skeptical about the effectiveness of sanctions regimes, and in certain cases, believe that they harm the ability of target countries to serve their populations.

Geopolitical interests also shape members’ calculations with respect to the Council’s robust tools. The Mali sanctions regime, which included violations of IHRL or IHL among its listing criteria, fell victim to a Russian veto in July 2023. In June 2023, Mali withdrew its consent for the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA)—a large peacekeeping operation with a robust protection mandate—which has since been shuttered. The P3 (France, the UK, and the US) and their allies have criticised the involvement of the Wagner Group, a Russian security company now renamed the Africa Corps, in Mali, a former French colony that until 2022 hosted French military forces.

Tension in the Council around legal accountability measures is not new, but has sharpened, judging by its approach to the work of the International Criminal Court (ICC). Three of the five permanent members (China, Russia, and the US) are not state parties to the ICC. While the Council referred two cases to the ICC—Sudan (Darfur) in 2005 and Libya in 2011—such a referral today feels unthinkable, given the antagonism towards the court from some key Council members. Russia, which has regularly criticised the ICC, has amplified its opposition since the Court’s 17 March 2023 announcement that it had issued arrest warrants for Russian President Vladimir Putin and Russia’s commissioner for children’s rights, Maria Lvova-Belova, for allegedly committing the war crimes of unlawful deportation and unlawful transfer of children from Ukraine to Russia. For example, in the semi-annual briefing of the ICC prosecutor on the court’s work in Darfur in January, Russia said that “for some 20 years, the ICC has been engaged in sabotaging the mandates of the Security Council, shifting the blame to national authorities, the complex security situation or a lack of resources”.

The US, meanwhile, has continued to back Israel over Gaza, notwithstanding the fact that in May, the Prosecutor of the International Criminal Court (ICC), Karim Asad Ahmad Khan, announced that he was filing applications for warrants of arrest before the ICC Pre-Trial Chamber I for Israeli Prime Minister Benjamin Netanyahu and Israeli Minister of Defence Yoav Gallant for alleged crimes against humanity and war crimes.[1] In fact, the US government has hosted both officials since the applications were filed.

 Silver Linings?

The 75^th anniversary of the Geneva Conventions invites reflection on how the norms and values they embody can be implemented in today’s difficult environment. One heartening sign is that, notwithstanding the divisions in the Council, some members have continued to assert the importance of IHL and call out violations. In recent months, many elected Council members have done so in statements on issues such as Gaza, Sudan, and Ukraine. This is also evident in the language of resolutions penned by elected members on Gaza, including resolution 2728, which was drafted by the E10 as a whole and demanded an immediate ceasefire for the month of Ramadan, leading to a lasting sustainable ceasefire, as well as the immediate and unconditional release of all hostages.

The Council’s tools—including those that promote prevention, protect civilians, and enhance accountability—need to be reinvigorated. Nearly ten years since the report of the High-Level Independent Panel on Peace Operations, it is worth revisiting how to strengthen UN peace operations in light of recent developments. Similarly, with the adoption of resolution 2744 in July, the resurrected Informal Working Group of the Security Council on General UN Sanctions Issues, whose previous iteration operated from 2000 to 2006, could provide a useful forum for building trust and understanding around the use of UN sanctions.

In September, member states are expected to adopt the Pact for the Future, laying out their vision for the future of multilateralism. As a consensus document, the end product may not be bold and innovative. However, 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.

[1] Khan is also seeking arrest warrants for various counts of crimes against humanity and war crimes for the Head of Hamas in the Gaza Strip, Yahya Sinwar; the Commander-in-Chief of the Al-Qassam Brigades (Hamas’ military wing) Mohammed Diab Ibrahim Al-Masri, also known as Mohammed Deif; and was doing so for the now assassinated Head of Hamas’ Political Bureau, Ismail Haniyeh.