Are the Geneva convention and the rules of conflict outdated?

Just as most militaries plan for the next war according to the lessons learned from the last one, so do international lawmakers define the rules for the next conflict according to the crimes, real and perceived, of the last one.

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Let’s start with one basic point that’s unarguable: War can’t be “sanitized”.

People die in wars. “War crimes” and “crimes against humanity” are subject to differences of perception, depending on which side you support. There is no such thing as black-and-white “guilt” or “innocence”—there are many grey areas.

The lawmakers who convened for the Geneva Convention of 1947 were affected by the behavior of both sides during the Second World War. This resulted in a number of changes in the previous version of the Convention, which, in my opinion, are no longer valid for today’s conflicts.

Those lawmakers did not (and possibly could not) envision wars waged not between nations, but by nations against what we now call “militant organizations” – a euphemism for terrorists. The existing laws give these organizations a “free pass” to commit the same “war crimes” their opponents are accountable for, without being accountable.

The issue of Human Shields:

Prohibition of the use of human shields arose as the direct response to the German practice of surrounding targets with civilians (prisoners, hostages or non-combatants – we’ll get to this definition later) from the occupied country to prevent partisan or allied attacks against those targets by forcing them to kill their own people. For example, a Gestapo building in Norway routinely housed suspected partisans and civilian hostages in its upper stories to prevent Allied airplanes from bombing the building where interrogation and torture of suspected resistance members was carried out. French civilians were often taken off the streets at random and chained to locomotives to prevent the Maquis from attacking the trains. The practice of taking random civilians in occupied countries and using them as human shields against resistance movements has been well documented.

But what happens when a belligerent takes its own population and uses them for human shields, whether willing or unwilling? (“Willing or unwilling” becomes even more critical when we define what a non-combatant is and what legitimate targets are.)

International law only states that any force using human shields bears the responsibility for placing those human shields in harm’s way… but is that the whole story? What happens, and what is the legal status of voluntary human shields? Are they “aiding and abetting the enemy” (which makes them as much of a legitimate target as munitions factory workers or merchant sailors, both of whom are “non-combatants” but legitimate targets)? Even if they are legitimate targets, how does one differentiate between willing and unwilling human shields? Are the unwilling dead considered war crimes while the willing dead become legitimate casualties of war?

What is the status of a prisoner, whether combatant or not, who agrees or is forced to interpret with enemy combat elements, even for the purpose of demanding surrender? Is that prisoner a human shield, or not?

The issue of defining “combatants”:

Another of the thorny issues is the definition of a combatant.

By their very nature, terrorist organizations fight out of uniform. By their nature, they do not “represent” any government. By their nature, there are no restraints on them and they are not accountable to any limitations except those they impose upon themselves, if any. For example, during the recent Israeli operation in Gaza, Hamas issued orders to their members to fight out of uniform and it was a common tactic for a “fighter” (combatant) to discard his weapon during a retreat (excuse me, “a tactical advance to the rear”) and pick up another weapon at another locale so he could continue fighting.

Is the fighter still considered a combatant during his unarmed transit from one battle to another? Does he stop being a combatant during his position shift? If so, when does he resume being a combatant? Is he a legitimate target during his transit from one fire fight to another or not?

This ties into the issue of human shields as well, since those knowingly acting as human shields are deliberately placing themselves “in harm’s way” to prevent the enemy from achieving his objective with cynical disregard for the spirit of the laws against the use of human shields. Since the human shield’s actions are intentional and directed against his/her enemies, does this qualify them as combatants or not? Physically, the voluntary human shield is indistinguishable from the involuntary human shield. Does the voluntary human shield deserve the same immunity as the involuntary human shield?

The issue of legitimate targets:

Because the Allies shelled the monastery at Monte Cassino in 1944 while the Germans were using it as a fortified artillery observation post and the Japanese use of hospital ships, even those transporting Allied PoWs, for moving the raw materials of war, the traditional idea of “protected sites” needed to be re-examined, too.

Once again, the new laws are unclear… if an enemy fires from a schoolyard, hospital grounds, churches, mosques or the like, exactly which is the “legitimate target”? Is it only the enemy emplacement outside (or even perhaps inside the “protected site”) or the entire structure, on the principle that there may be more emplacements in it, as well? If the emplacement is outside but adjacent, does that change the status of the protected site?

Then we go back to the question of human shields… are there any in the protected site? Are they willing or unwilling shields? What is their status - combatant or non-combatant?

We can circle these questions for hours without reaching any conclusion except two: the face of war has changed, and the rules of engagement must change with them. When one party has nothing but contempt for the Geneva Convention and International Law, how can they be binding on the other party?

Conclusion:

War is not “civilized” and war is not “sanitary”. War is the use of controlled destruction to force one’s enemy to bend to one’s will. Innocents as well as belligerents will die on both sides. To allow one of the sides a free hand to disregard any rules of warfare while requiring the other to maintain them is like putting a boxer into a ring with one hand tied behind his back and one foot weighted down against an unfettered opponent.

Therefore, it may be high time that the entire concept of rules of war be reconsidered according to the existing reality and not according to the actions taken in a war that ended sixty-four years ago.