Legal Studies - World Order effectiveness in relation to conduct of hostilities.

[ToChristinaLin]

Evaluate the role of law reform  + non -legal in promoting and maintaining world order by reference to rules regarding the conduct of hostilities.
Even in times of war, international rules apply and must be observed for peace of humanity. As modern munitions of war develop rapidly, the International Humanitarian Laws (IHL) and treaties must also be updated to limit war violence. Key pieces of law reform have been the Four Geneva Conventions of 1949 and their additional protocols like the Chemical Weapons Convention, and the  International Criminal Court (ICC) to punish perpetrators of “grave crimes”. Further legal responses are from the International Committee of the Red Cross (ICRC) and Mines Advisory Group (MAG), which both have provided substantial humanitarian aid.

At the end of World War II, it became boldly clear that civilians needed to be protected from the barbarity of war. The ICRC managed to convince states to revise international  laws protecting those combating like wounded soldiers and prisoners of war. This led to the revised Geneva Conventions in 1949. Currently 196 states have ratified this treaty, meaning they have a legal obligation to seek, try and extradite perpetrates of listed war crimes. While the first and second conventions of the GC protected the wounded and sick armed forces on land and sea, the fourth one - The Geneva Convention Relative to the Protection of Civilian Persons in time of War was a major breakthrough for the unaddressed protection for civilians. Prior to 1949, the Geneva Conventions that were adopted only addressed combattants. Although some regulation was in place as annexed to the Hague Conventions of 1899 and 1907, this was deficient as WW1 saw the atrocity of the effects of advanced war airfare. As well, there was not enough address to the humane treatment of civilians in both enemy and enemy-occupied lands. As a result in the 1929 Diplomatic Conference, there were important attempts at revising the Conventions. Yet this was postponed due to the outbreak of WWII, which (re)emphasised the horrific lack of protection for common people during war. Thus the implementation of the GCIV provided better coverage of protection for civilians as the bulk of it pertained to their status and treatment during war.

Compared to the hundreds of other Articles in the 4GCs that regulates IACS, the deficiency of  laws pertaining to NIACs was also filled by Common Article 3. This article was crucial in laying fundamental rules from which no derogation is permitted. Like a mini convention it encapsulated the essential rules of the four Geneva Conventions and makes them applicable to the setting of civil war. For example it requires the humane treatment of all persons in enemy hands, without any adverse distinction; and prohibits acts of murder, humiliation torture, etc on prisoners of war (POWs). These laws together aims to preserve life in the setting of IACs and NIACs. Currently 196 states have ratified the Geneva Conventions, making the treaty universally applicable. Hence this shows the resolve the international community has for order during conflicts. With the adoption of the additional Protocols I and II in 1977, there were improved specificity in dealing with the conduct of states in internal conflicts. Together the new protocols augmented the protection of victims previously covered in the GCs. These milestones thus demonstrate effective law reform in promoting order during conflicts. However, the concept of state sovereignty on the international legal plane still continues to be a/the major hindrance to proper compliance to these laws. 

State sovereignty is the legal concept that all states are the ultimate, independent law-making powers in the international domain. Along with this power is therefore the choice to ratify an international treaty. Yet mere ratification does not ensure absolute compliance, and the current civil atrocities in Syria demonstrate this problem. In 1953, Syria signed the Geneva Conventions, as well as the 1925 Geneva Gas Protocol in 1968. The latter prohibits "the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids" - yet the chemical attacks on the morning of August 21st 2013 in the city of Ghouta proved otherwise their resolve. In the dozens of Youtube videos that revealed footage of the dead and hospitalised, this prompted the 22-page Human Rights Watch (HRW) report titled: ‘ATTACKS ON GHOUTA: Analysis of Alleged Use of Chemical Weapons in Syria’. The report detailed the alleged use of chemical weapons in the opposition-controlled suburbs of western and eastern Ghouta. Without physical access, social media via Skype has been instrumental for the witness statements of rocket attacks, physical remains of weapon systems, medical symptoms, etc, so that a credible account of the attacks may be pieced together.  This sort of exposure is therefore crucial in exerting pressure on the rest of the international community to actively do something about the situation. This came in the form of threatened US intervention, where under the Obama government, a conduct of US airstrike was considered as brute force to compel Syria’s compliance with IHL. John Kerry, as US Secretary of State thus offered negotiation with Russia’s government to convince its ally, the Syrian Assad government to hand over its chemical weapons to the international community. This deal later proved to be successful in compelling Syria to forfeit their illegal weapons - as reported in an AAP newsagency article: Watchdog: 49% of Syrian Chemicals Removed (March 2014). Subsequent statistics as seen an article: Syria removes 80% of its chemical weapons (April 2014),  and how at the end of April 92.8% of Syria’s known stockpile has been surrendered also testify to the effectiveness of the US intervention. In the short term, this was a win-win situation for Russia, Syria and the US, whereby potential military force has been avoided. However in the long run, this was not effective because it did not deter yet another series of indiscriminate bombing in 2015; Syrian Regime Violates UN resolution by using chemical weapons 87 times (ARA News April 20, 2015). Since the outbreak of the Syria civil war in 2011, for the most part the failed state has leaned on Russia for diplomatic and military strength.This political alliance where there is not at all alleviation to the suffering caused is also a reference to the problem with state sovereignty.   

In 2005, the Canadian government set up the International Commission on Intervention and State Sovereignty to clarify and enforce the essence of state sovereignty. That is, it not only entailed rights, but the responsibility of the state to protect its own people. This came in the legal principle “R2P” (Responsibility to Protect), and thus encapsulated what came out of the 2005 World Summit Outcome Document. In line with this principal, UN Secretary-General Ban Ki-Moon also established 3 pillars which basically outlined the international community’s responsibility (both collectively and individually) to protect and preserve life. Yet even with the escalating bloodshed in Syria, division in the international community hinders this principle from being executed, stemming from conflicting political interests as well as the veto powers of the P5. As any lawful military intervention must be permitted by the UNSC as per the UN Charter, this makes it harder for willing states to simply bypass it.

As another important legal response, the ICC has a function of delivering justice by punishing perpetrators of war crimes. The court was established in 2002 by the Rome Statute to “put an end to impunity”. It is a court of last resort when states are unable or unwilling to prosecute any person who violates international treaty and/or customary IHL. But without its own police force to seek and arrest war criminals, the effectiveness of the ICC fundamentally relies on state cooperation. As only state parties to the Rome Statute are obliged to comply with its judgements, non-state members like China Russia and the US are completely independent of its jurisdiction. These three states are amongst the Permanent 5 (P5) of the UN Security Council (UNSC) which have the power to veto any case referrals. But this acts as an aggravating hindrance to the ICC’s effectiveness as political interests collide with the ICC’s aim. In The Guardian article: Russia and China veto UN move to refer Syria to the International Criminal Court (23rd May 2014), this is a clear demonstration of the court’s justice function being crippled.

//The work done by the ICRC has also helped preserve some order in times of conflict, in both legal and non-legal ways. The NGO performs a quasi-legal role in interpreting and advising IHL. The development of CIHL stemmed from the fact that it was not the inadequacy of rules that applied to some conflict types. But as well an unwillingness for states to respect them. In December 1995, the 26th International Conference of the Red Cross/Crescent therefore officially mandated the ICRC to prepare a report on Customary Rules of IHL applicable to IACs and NIACs. This came in the form of a report titled: Study on Customary International Humanitarian Law: A contribution to the Understanding and Respect for the Rule of Law in Armed Conflict (SCIHL) (2005). It was a very useful document because it fulfilled two purposes: to determine which rules of IHL are part of Customary International Law (CIL), and determine the extent that CIL regulated NIACs in more detail or not. For the first purpose, treaty laws in relation to IACs were wealthy, with the 4GCs being universally applicable. However this is not true for other aspects of IHL. For example, the Additional Protocol 1 has been ratified by 174 cstates, yet its efficacy is limited because several states have not simply ratified it. This means that this protocol is not applicable to them. As well, while 168 states have ratified Additional Protocol II pertaining to NIACs, several of the problematic countries like Syria, Iraq, Turkey, Pakistan and India have not done so. Again this shows the hindrance of state sovereignty that hinders enhanced legal protection in conflicts. Secondly,  the study provided evidence that many of the CIHL applied to situations of IACs and NIACs. That is, the study helped to fill gaps in areas of law that IHL fails to. Although Common Article 3 and Additional Protocol II pertained to some degree of protection for NIAC situations, Protocol II compared to Protocol I lacked the depth of details, such as IHL principles of distinction (civilians versus combatants) and proportionality (from which flows the prohibition of superfluous injury/unnecessary ‘suffering). This study therefore produced the 161 CIHL Rules applicable in IACs and NIACs. As well, this document reasserted the existence and binding power of IHL. Therefore, the ICRC was instrumental in augmenting compliance with customary IHL rules by states.

The Mines Advisory Group (MAG) is another useful legal response to ease suffering caused by war.  As an NGO it finds and destroys cluster munitions, bombs and mines in areas affected by conflict. In 2018, 100 284 landmines and unexploded bombs has been destroyed, and 55,828,506 sqm of land has been cleared. These statistics testify the effectiveness of their role to preserve life in conflicts.

World order must be maintained even during times of war. War technology continues to advance, but both legal and humanitarian responses has significantly eased its effects. With the 4GCs as one of the greatest reforms, the most vulnerable are protected. Continued support by NGOs like the ICRC and MAGs are also essential in preserving life and dignity during conflicts. Together these legal responses has been relatively effective to restrain the violence of war.  //