Last year presented an opportunity for celebration and reflection, with many important birthdays for the post-World War II era. NATO marked its sixtieth birthday in April amid much fanfare and a respectable amount of soul-searching. In July, the Bretton Woods system reached its 65th birthday, an important milestone not least for the tumult of the international economy. A third anniversary passed largely unheralded, however: the sixtieth anniversary of the 1949 Geneva Conventions.
At their inceptions these three institutions were conceived as being linked to each other, creating a three-legged stool of post-World War II stability. NATO’s mission was to prevent a third European war in the 20th century. The IMF and the International Bank for Reconstruction and Development (now the World Bank), along with less formal agreements to promote a liberal trading regime, arose from Bretton Woods to ensure global economic stability and reconstruction, thus obviating what were thought to be underlying causes of war. The Geneva Conventions significantly updated four earlier agreements to embed worldwide respect for the principles of human rights and the sanctity of humanitarian assistance. If NATO represented the security dimension and Bretton Woods the economic dimension of peace, the Geneva Conventions and the organization designated to defend their principles, the International Committee of the Red Cross (ICRC), represented its moral foundation.
After important birthdays in life’s later acts, people muddle on with their lives, as they must, having set aside the grand schemes of reinvention that naturally come with youth. The same goes for institutions. NATO at 61 is still in search of a “strategic concept” twenty years after the fall of the Berlin Wall as it struggles both to defend and define its purpose in Afghanistan. Bretton Woods has, if anything, taken a protracted sabbatical as emerging economies tussle for greater influence and declining economies refuse to cede ground. And what of the Geneva Conventions? How goes it for them sixty years on?
To answer that question, we have to know something about their birth. The ICRC began as an historical accident of sorts. One hundred and fifty years ago this past June a successful Swiss businessman named Henry Dunant came upon the aftermath of a battle between Austrian and French forces near the northern Italian town of Solferino. The sight of dead, dying and wounded soldiers from both sides, left strewn on the battlefield for several days, horrified him and drove him to organize local volunteers to remove and bury the dead, and to treat the wounded as best they could. Once Dunant returned home to Geneva, he wrote A Memoir of Solferino to spur others to organize volunteer aid committees in every country. He charged them to provide impartial assistance to the wounded on the battlefield and called for broad diplomatic agreement on a principle of neutrality for medical personnel tending the wounded. Dunant also proposed an identifying humanitarian emblem for such personnel: a red cross on a white background, the inverse of the Swiss national flag.
Dunant’s humanitarian vision spread beyond Europe to the Ottoman Empire, which founded its own Red Crescent societies. The year 1864 saw the approval of the first Geneva Convention, which sought to improve conditions for battlefield wounded.
Eventually, Dunant’s work landed upon America’s shores by way of Clara Barton, a Washington, DC patent clerk. As with Dunant’s reaction to the Solferino carnage, Barton had been outraged by the lack of care available to both Union and Confederate soldiers on the battlefields of the Civil War. Exhausted from her improvised relief efforts, she traveled to Geneva to recover her health and discovered by chance a kindred spirit in Dunant. Armed with Dunant’s inspiration and organizational framework, Barton returned to the United States and established the American Association of the Red Cross in 1881. She insisted that the American society not only provide auxiliary relief to the army medical corps, but that it also aid civilian victims of national disasters. Many other national societies followed her example.
In 1882, the United States became a signatory to the first Geneva Convention. Barton lobbied tirelessly for Congress to charter her organization and give it special status as an adjunct to the U.S. government. Although it took her 18 years, the American National Red Cross eventually received its congressional charter and Federal recognition, primarily to fulfill U.S. obligations under the auspices of the first Geneva Convention and the right to use and protect the Red Cross emblem.
By the time the American Red Cross had established itself, the international Red Cross movement as a whole began gathering greater momentum. By 1907, a second convention extended relief and care to the wounded of maritime warfare, and in 1929, a third convention outlined standards for the treatment of prisoners of war. In 1948, the Red Cross held a conference, much influenced by the 1907 Hague Convention IV, to discuss the protection of civilians in wartime. After four months of debate, the conferees approved the fourth Geneva Convention and revised and expanded the prior three. Ninety years after Henry Dunant witnessed the horror at Solferino, the better part of the globe had agreed to the basic principles of international humanitarian law.
The impetus in 1948–49 to update the Geneva Conventions arose from the exigencies of World War II. The old conventions did not fail entirely during that conflict; on the contrary, they served remarkably well. However, they were stressed and applied unevenly. The victorious Allies believed that conditions had changed sufficiently to warrant revising the conventions. The 1949 revisions, since they were led mainly by a coalition of victorious World War II powers, were not particularly controversial, and they have functioned ever since in a reasonably effective fashion—at least until lately. The conventions have also been altered since 1949 by three protocols. Protocol I, from 1977, relates to the protection of victims of international armed conflict. Protocol II, also from 1977, relates to the protection of victims of non-international armed conflict. Protocol III, from 2005, merely allowed for the adoption of the Red Crystal emblem in addition to the existing ones.
Some of the three protocols were controversial but none added significantly to the corpus of law embodied by the conventions. There is once again, however, a growing sense that the time has come for another major update on the scale of the post-World War II revisions. This perception stems from a simple but daunting fact: Dunant’s 19th-century humanitarian vision now confronts the international terrorists and uniformless insurgents of the 21st century. Groups such as al-Qaeda, Hamas, Hizballah and the FARC would destroy every distinction and limit that Dunant inspired in their variegated efforts to throttle state sovereignty. Their tactics pose legal challenges to the Geneva Conventions system as it now exists, as well as a host of practical challenges to the ICRC as the principal agent of the conventions.
As to the legal challenges, terrorism principally calls into question the adequacy of both the Third Convention and the First Protocol. Common Article 3 of the Third Convention defines which combatants are covered by the conventions’ regulations on the treatment of prisoners of war and which are not. To qualify, combatants must be in uniform or display military insignia, and they must be organized in such a way that superior commanders can order soldiers to lay down their arms. Terrorists generally qualify on neither account, yet it is obvious that they are not mere criminals, as they engage in violence for warlike purposes. This basic dilemma defines the legal framework, or rather the lack of a clear legal framework, that got the Bush Administration into so much trouble in its dealings with terrorist prisoners after 9/11. It bears, too, on the Obama Administration’s attempt to draw a legal distinction between targeted killings, which it defends, and assassinations, which it prohibits. The dilemmas associated with Guantánamo, which have bedeviled both current and past Administrations, make it clear that terrorists straddle the categories of the Geneva Conventions and assault a product of international state agreement just as they would assault the states themselves.
The First Protocol, which the United States has not ratified, raises concerns that it might extend to terrorists legal privileges that they do not deserve, and that it might compromise the military operations of states fighting in their own self-defense. This is why countries such as Turkey, Pakistan, India, Iran, Morocco and Israel have declined to ratify it. Indeed, putting such states at a disadvantage may have been one motive for creating the protocol in the first place. International humanitarian law is supposed to be above politics, or at least that is a key to its appeal and legitimacy. And while it is not true, morally or legally, that “one man’s terrorist is another man’s freedom fighter”, the First Protocol as written and interpreted confuses the matter as best it can.
As to the practical challenges posed by the present Geneva Conventions system, the advent of modern terrorism and the proliferation of other non-state actors have vastly complicated the work of the ICRC. The ICRC is a quiet, mostly self-effacing, 12,000-person-strong organization with a sacred charge to keep and a delicate diplomatic dance to perform. It is both global teacher and enforcer of the 1949 Geneva Conventions and Additional Protocols and, as it happens, sole claimant to the Red Cross symbol, reportedly the world’s second most-recognized brand behind Coca-Cola.
The ICRC has also long been the subject of controversy. Many international humanitarian activists regard it as an excessively insular and Swiss organization, with a large portion of its staff based in Geneva. It is also frequently criticized as an overly bureaucratic body that proceeds so cautiously at times that it spites its own mandate to aid civilian populations caught in the crossfire of conflict. Yet its caution makes sense in light of the growing vulnerability of its humanitarian staff. The humanitarian emblems of the Red Cross, Red Crescent or Red Crystal no longer protect ICRC workers; rather, these days they’re more like bullseyes. Terrorists and insurgents increasingly attack humanitarian convoys either to hasten the departure of witnesses to violations of international humanitarian law or to call international attention to a conflict. One or the other of those motives can be found behind relatively recent attacks on ICRC personnel in Afghanistan, Somalia and Sudan. Following the bombing of its Baghdad headquarters in October 2003, the ICRC removed all humanitarian insignia to protect its remaining staff—an historical first for the organization.
Clearly, the challenges that the ICRC faces today are unprecedented; the ICRC’s role as humanitarian provider overshadows and sometimes conflicts with its international humanitarian law responsibilities as never before. Yet frequently the ICRC is the only organization allowed access to a conflict zone, so it faces difficult choices. Moreover, what used to be exceptional circumstances for ICRC operations now constitute the rule. In the post-1949 era, interventions arose primarily from internationally recognized armed conflicts. In 2008, there were only two such conflicts: the Georgia-Russia and Djibouti-Eritrea conflicts. The vast majority of the ICRC’s operations flow from non-international armed conflict, most commonly in weak or failed states where one or more armed groups or criminal elements fragment, causing displacement and severe hardship for civilian populations. That’s why a recent ICRC public relations campaign used the blunt slogan, “Our world is in a mess.”
The ICRC is rarely so candid about its work, however. That reticence inheres in the very nature of its mission. To ensure access to all parties to a conflict—not just governments but rebels and terrorists as well—the ICRC guarantees strict confidentiality. This condition can be a source of great consternation to governments that see ICRC dialogue with an armed opposition group as conferring political legitimacy, or to family members of political prisoners, who rarely see immediate benefits from this confidentiality. But the ICRC has little choice. It hardly bears mention, because it is so obvious, but the ICRC has precious little leverage over almost anything. It can decry wrongdoing and remind all parties of their obligations under international humanitarian law, but it can’t make any government or non-state actor do anything it does not wish to do. It possesses no enforcement mechanisms of its own, nor can it readily import leverage from an International Criminal Court or an International Court of Justice to deal with individuals or authorities who do not respect international humanitarian law in the first place. The ICRC really has only two effective tools: the perception of political neutrality and the acceptance of its unique role.
Perception, particularly wrapped in the cloak of neutrality, is an especially tricky business. Fairly or unfairly, the ICRC has weathered charges of anti-Semitism because of its silence during the Holocaust and unwillingness to try to gain access to Nazi concentration camps, as well as its reluctant acceptance of the Israeli National Society, the Magen David Adom, into the International Red Cross Movement after 58 years of inexplicable (or, at any rate, unexplained) exclusion. Some have also challenged the ICRC’s silence in 1994 over the Rwandan genocide, a silence it maintained was necessary to secure access to all parties to the conflict. Still others have questioned whether the ICRC’s complicity in moving certain populations in Bosnia facilitated ethnic cleansing. Most recently, the ICRC has been criticized for providing first-aid supplies and training to the Taliban.
What controversies like these really show that it is not easy being the ICRC. To serve its mission effectively, its leaders have to think long-term, sacrificing popularity in the emotional heat of the present for maximum feasible access and neutrality in the future. The ICRC has to hope that its approach wins general public acceptance over time. Generally speaking, this hope has been borne out. Thus it remains in the interest of the U.S. government to support the ICRC, warts and all.
An ICRC Agenda for the Obama Administration
How should the Obama Administration provide that support? Six possibilities come to mind.
First, the Administration can liase more effectively with the American Red Cross (ARC) in order to make better use of the ICRC network. Each member nation of the International Red Cross and Red Crescent Movement is tasked with promoting understanding and awareness of international humanitarian law. The American Red Cross has done so, having developed an educational curriculum for youth that works in tandem with social studies courses.
But the ARC has budget problems. As the largest American non-profit humanitarian organization that relies primarily on private funds, the ARC now faces more competition for donations than ever and has suffered from some self-inflicted public image problems as well. But thanks to its charter, the ARC still receives Federal funding for select disaster relief operations, services to the armed forces program and some international relief activities. The Obama Administration should provide the ARC additional funding for its international humanitarian law education efforts via a Justice Department grant. This work may not be as headline-grabbing as disaster-response work, but it would help the ARC expand and prioritize its international humanitarian law efforts.
The Administration could also link funding to a mandate for the ARC to target American law schools. While the ARC focuses on educating younger audiences about international humanitarian law, the ICRC, in close cooperation with the American Red Cross, should reach out to preeminent law schools and law faculty to develop a general international humanitarian law curriculum for aspiring lawyers. Rather than treat international humanitarian law as a narrow specialty, law schools should expect all their graduates to be well grounded in the precepts of international humanitarian law.
Second, the Administration should encourage international humanitarian law education within the U.S. military and its Judge Advocate General’s (JAG) Corps. The ICRC should be commended for its quiet and effective work with select U.S. military commands to build greater understanding of international humanitarian law over the past few years. However, this work and the ICRC’s relationship with the U.S. military should be strengthened. It would be particularly helpful to develop international humanitarian law seminars with the JAGs to develop a critical mass of officers who are conversant in its tenets.
Third, the Administration should involve NATO in a diagnosis of the state of international humanitarian law. In an era when “coalitions of the willing” and unconventional alliance operations are prevalent (such as NATO’s International Security Assistance Force in Afghanistan and its counter-piracy operations in the Gulf of Aden), coalition partners should harmonize their understanding of international humanitarian law as much as possible. In an excellent report issued by the Atlantic Council in February 2009, “Beyond Closing Guantánamo: Next Steps to Rebuild a Transatlantic Partnership in International Law”, Will Taft and Elizabeth Wilmshurst recommend that the 28 members of NATO examine their own internal policy and legislation regarding their Geneva Convention obligations. This is a good idea, deserving of rapid implementation; but there does not appear to be any movement in this direction so far.
Fourth, the Administration should make sure that all agencies of the U.S. government that engage private security firms qualify them in international humanitarian law before their personnel enter a conflict zone. As private security firms become more prevalent in conflict zones, governments must ensure that individual companies acknowledge and comply with international humanitarian law principles and obligations. It is incumbent upon countries that employ such firms to have the necessary legal jurisdiction over their actions. Government contracting criteria might, for example, include a mandatory international humanitarian law education and training program.
Fifth, the Administration is in a good position to launch an interfaith dialogue on international humanitarian law, often a predominantly U.S.-European topic of dialogue. It must expand beyond the Western world. An interesting “Track Two” effort would be to bring legal experts and scholars from the world’s major religions to discuss the legal and moral bases of international humanitarian law.
Sixth, and most important, the Administration should strive to re-establish U.S. leadership regarding the Geneva Conventions. To do this, the Administration needs first to find its bearings concerning its view of Common Article 3 and how they apply to terrorism and irregular warfare. Then it must make the case for its view to the ICRC and the world at large.
This is a very complicated business, to be sure. At the very beginning of his term, President Obama ordered a task force to develop policies for the detention and subsequent trials of terrorist detainees. Its work, of course, took its reference points from the Geneva Conventions, as well as aspects of U.S. domestic law. In this and earlier efforts, the discourse has not been easy or always public; this is a genuinely difficult subject, on which honest and well-intentioned people can take different views.1 But open debate seems always to reach the conclusion that international humanitarian law itself needs to be clarified and amplified, particularly in situations where several nations are engaged in coalition warfare and distinctions between civilians and combatants are blurred, sometimes intentionally.
The problem remains, however, what it has long been: If the keepers of the Geneva Conventions elect to open them up to modernize how terrorism is handled under international humanitarian law, will they be able to keep the process under control? Or is this a Pandora’s box, the opening of which would do more to weaken the efficacy of international humanitarian law than to strengthen it?
If the Administration concludes that it should open that box, it will need to persuade the ICRC that its judgment is sound. The ICRC’s insular and cautious tendencies normally compel it to be overly protective of the conventions. At times, it works against its own stated goal of garnering greater international acceptance and understanding of its work and its organizational effectiveness. The ICRC should always be open and willing to engage during the development of national judicial decisions and experiences, but sometimes it must be persuaded. In this task, the United States has to lead.
One way to lead more effectively is to consider proposing that the substance of the Additional Protocol I, which, for the most part, has been incorporated into the U.S. Army Field Manual, be folded into a revised set of conventions. (This might also be done with the other two protocols.) An ad hoc approach to ratification of the Additional Protocols continues to undermine the logic for retaining these appendages. Consolidating the Additional Protocols by way of a revised Geneva Conventions may create the necessary space for the United States to join the overwhelming majority of states without violating the principles, affirmed by both Democratic and Republican administrations since 1977, that have kept the United States from ratifying the protocol until now. This would be a delicate operation, no doubt, one requiring careful preparation and consultation with like-minded allies, particularly in addressing American concerns regarding combatant immunity. But it can be done. Who better to lead such an effort than a President who mastered law review at Harvard?