Conclusions
The 70th anniversary of the Geneva Conventions has rightly been celebrated. But there is a tendency to take too much for granted, or to focus only on the negative. The Geneva Conventions were a phenomenal achievement, as were the Additional Protocols of 1977. This achievement is implicitly recognized every time suggestions to ‘reopen the rules’ to develop some particular aspect of the law is met with a caution not to do so now, as ‘we risk losing what we have’.
Violations of the law are all unacceptable, and it is necessary to continue to strive to improve compliance and to hold perpetrators accountable. But focusing exclusively on violations gives a skewed picture of the role of IHL in conflicts today. The occasions when IHL is complied with must also be highlighted. The ICRC’s IHL in Action project plays an extremely important role in contributing to a more positive discourse.
But there remain uncertainties in the law. This paper looks at only three examples of areas of the law that present some challenges. In the immediate future, IHL is unlikely to be developed by treaty-making. In view of this, the focus should be on finding ways to enhance compliance with existing law and, where necessary, agreeing on guidance on how to clarify or interpret the law. The adoption of measures at national level plays a key role in giving effect to existing obligations; civil society can play a role in clarifying the law; international fact-finding and human rights bodies should be supported on the occasions when they need to interpret IHL.
Finally, an overarching challenge to compliance with IHL in the past decade is the interplay between IHL and counterterrorism measures. This is a source of tensions that can undermine the protections set out in IHL, and can hinder principled humanitarian action and activities to promote compliance with the law by organized armed groups. As a matter of law, these tensions can be resolved by simple drafting in counterterrorism instruments to safeguard IHL and humanitarian action without impairing counterterrorism objectives. A number of states have started including such exceptions in domestic legislation; this is encouraging and should be replicated at the national and international level. For their part, humanitarian actors must both highlight the significant anti-diversion measures they are already taking, and recall foundational principles of IHL such as the entitlement of the wounded and sick to receive medical care, and the prohibition on punishing those who provide such care.