The international community’s continued inaction and blatant disregard for international humanitarian law (IHL) in Syria and Afghanistan risks pushing the laws into abstraction and undermining their ability to govern conflict.
Codified in the Geneva Conventions of 1949 and the Additional Protocols of 1977, IHL set out limits to war. It offers protection to civilians and sets the parameters of what is acceptable and what is not acceptable. Since its creation it has faced challenges and numerous violations – especially with the end of the traditional battlefield and the blurring of lines between combatants and non-combatants.
Unfortunately, the challenges in Syria and Afghanistan are, arguably, unprecedented. Physicians for Human Rights, a US-based advocacy group, said ‘the scale and brutality of the attacks on Syrian medical facilities and health professionals is unparalleled’. They documented 224 attacks on 175 health facilities and 599 medical personnel deaths since the start of the conflict. Staffan de Mistura, the UN special envoy to Syria crisis, said that at some points of April a Syrian civilian was wounded every 13 minutes.
Bashar al-Assad’s forces deliberately violate IHL in Syria as a strategy of war. Hospitals in opposition-held parts of Syria are now refusing to share their GPS coordinates with Russian and Syrian authorities and have been forced to operate in unfit locations, including factories, caves, and chicken coops.
Western forces have also committed violations with seeming impunity. In October last year, US forces bombed Kunduz hospital in Afghanistan killing 42 people. While 16 military personnel were punished with disciplinary measures, no criminal charges were brought against them. Senior officials stated that the incident was not a violation of IHL but a result of human error. However, Médecins Sans Frontières (MSF) disagree – its general statement argued the punishment was ‘out of proportion with the amount of magnitude and death’ and Vickie Hawkins, executive director of MSF UK, claimed the ‘severity and nature of the attack…would constitute a war crime’.
This is not only devastating but has dire consequences for the future of IHL and, as a result, any hope of protecting humanity in war. Dr Joanne Liu, president of MSF, stated after the bombing of the Kunduz hospital that ‘this was not just an attack on our hospital – it was an attack on the Geneva Conventions’.
The international community must make violations of IHL matter. The laws must be clearer and when they are broken there must be consequences.
First, clarifying IHL would reduce the space for legal manoeuvring. After the Al Quds hospital in Syria was bombed the Syrian regime released a statement arguing the hospital was used by militants and was, therefore, a lawful target. A similar argument was used by Afghani forces after the bombing of the Kunduz hospital. These ambiguities in the law should be reduced ‘to prevent some would-be perpetrators from hiding their crimes under a cloak of legality’.
Second, there should be consequences when violations occur. At present violations are so numerous that they no longer seem newsworthy. This is wrong; violations should be highlighted and condemned by the whole international community – from the UN and NGOs to media outlets and heads of state.
There should also be investigations into violations. For example, MSF called for the International Humanitarian Fact-Finding Commission (IHFFC) to investigate the Kunduz hospital bombing. The IHFFC was established in the late 1970s to examine alleged violations of the law but has never been used. It could give the IHL applicability and at least present a thorough investigation of violations.
Alternatively, a new compliance mechanism could be developed. The International Committee for the Red Cross (ICRC) and the Swiss government recently suggested ‘a non-binding voluntary mechanism which would bring states together to: 1) exchange information and best practices on key thematic and technical issues, and 2) participate in a voluntary self-reporting process on IHL compliance’. Unfortunately, states opposed the idea of a new mechanism to encourage respect for its rules. The ICRC president Peter Maurer said ‘by failing to support this initiative, States missed an opportunity to help to protect millions of people’.
Whatever the international community do, they must make sure IHL violations matter. As long as IHL plays no part in the conflicts in Syria and Afghanistan there will be no hope of protecting civilians and other non-combatants, in these and future wars.