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Even wars have limits


GUEST COLUMN by RAOUL FORSTER


The 30th anniversary this week of the adoption of the first two Protocols additional to the Geneva Conventions of 1949 commemorates a milestone in the evolution of how wars are fought. The protocols are among the most important international legal foundations for the protection of civilians during armed conflict.

Thirty years ago, the First Additional Protocol established rules on the conduct of hostilities. Among them is the crucial principle of distinction between civilians and combatants, and between civilian objects and military objectives. Attacks on civilians as well as on civilian objects are expressly prohibited. Another explicit rule in the protocol is that "acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited". The list does not end there.

Additional Protocol II was a response to the proliferation of internal armed conflicts for which only one article, article 3, common to the four Geneva Conventions could apply. Indeed, this was the first treaty ever devoted exclusively to the protection of the victims of such conflicts. Its rules on fundamental guarantees for all those not involved in the fighting, on the treatment of persons deprived of liberty and on judicial guarantees for individuals subject to penal prosecution represented a landmark in the development of international humanitarian law.

Most armed conflicts today take the form of civil wars, during which some of the worst crimes are committed. One might reasonably ask "so what?" What good is the law of war if it is neither applied nor enforced?

The short answer may be that the real value of the Additional Protocols lies less in the good they have achieved than in the yet greater evil they have helped to prevent. With 167 countries currently party to the first Additional Protocol, and 163 party to the second, there is a growing recognition that wars have limits, not least in the specific duty of care required towards civilian populations. And, as Mary Werntz, head of ICRC in Nepal said, "The painful humanitarian consequences of the recent 10-year armed conflict in Nepal show clearly that lack of international humanitarian law instruments and their implementation in domestic law contributes to violations".

Of course, examples of violations of the protocols-and of international humanitarian law in general-abound. But whereas accountability may once have been the exception rather than the rule in conflict, a wind of change in this regard is blowing ever-stronger thanks largely to a growing public awareness of international humanitarian law. The establishment in 2002 of the International Criminal Court (ICC) in The Hague, the world's first permanent war crimes court, was the fruit of years of negotiations. In addition, national legislators and courts are finally starting to live up to their respective responsibilities of ensuring that domestic legislation recognises the criminal responsibility of those who violate international humanitarian law, and of actually enforcing such legislation. The message is clear: war criminals can no longer take impunity for granted.

However, despite this undeniable progress, the political will to fully implement the Geneva Conventions and the Additional Protocols remains insufficient. Parties to conflict have in many cases not yet realised the wisdom that applying and enforcing these legal restraints is in their own best interest: failure to prevent abuse against others ultimately lifts the safeguard against similar abuse in return.

In Nepal, the 30th anniversary of these protocols is a good time for the authorities to ratify and implement the still-relevant Protocols I and II additional to the 1949 Geneva Conventions.

Raoul Forster is the communications delegate at the International Committee of the Red Cross in Nepal.



LATEST ISSUE
638
(11 JAN 2013 - 17 JAN 2013)


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