An examination of the failings of the Geneva Conventions and the perceived inability to recognize the urgent necessity of prosecuting blatant cruelty by the powers that be…
by: Ron Wetherington
In 1949, the United Nations formalized the concept of war crimes. In this declaration and its subsequent amendments, collectively known as the Geneva Conventions, the community of nations was reacting to the recent horrors of the Third Reich, depraved behavior not seen on such a large scale since the First Crusade.
Philip Spoerri, Director of International Law at the International Committee of the Red Cross (ICRC), reflected on this in his 2009 address: “The Second World War remains a conflict distinguished by violence on an unprecedented scale….Much of it was directed against civilians, who had not paid such a heavy price for mankind’s warmongering since the Thirty Years’ War.” He was addressing the 60th anniversary of the Geneva Conventions. “The discovery of the Nazi concentration camps and the extent of the mass extermination carried out within their walls added yet another layer of horror to the tragedy.”
It should be no surprise, however, that the declaration is populated with equivocality, an awkward fusion of despair and hope. “The need to achieve a consensus has led those drafting these provisions to formulate them in a way that is sometimes ambiguous,” reads the formal 1987 Commentary on Protocol I in what seems almost apologetic.
It seeks to distinguish acceptable from unauthorized killing in precise diplomatic language. The goal was to set aside permissible forms of homicide during war by itemizing as many examples of the unacceptable as compromises would permit. Common Article 3, writes M. Ghandi in the ISIL Year Book of International Humanitarian and Refugee Law (2001), “appears to have been constructed ambiguously with a view to achieve a delicate compromise acceptable to states which are in favour of the restrictive application of humanitarian law to non-international armed conflict.”
In compartmentalizing violence, it relies on the gauzy fabric of intent. Targeted civilian casualties are war crimes; unintended and collateral casualties are not. The focus is not on innocent lives lost, but on how these losses occur. There is a casual sang-froid operating here, chilling in its own right, because it self-consciously crosses boundaries that in normal times remain sacred.
War is never as precise and surgical as presidents and generals design, so the Conventions seek to restrain the designers and forestall their impulses. The fence they built in 1949 seeks to separate one violence from another. It is an unsound and implausible fence: unsound because partitioning violence is principally a rhetorical exercise, implausible because war zones are not places for moral debate.
The allied firebombing of Dresden in 1945 incinerated 25,000 civilians in an effort towards ending, finally, a swath of terror. Massacres occur on both sides of war, and all wars encircle crimes. Noncombatants die regardless of intent, and suffering bloats large beyond the killing fields. Violence opaquely transforms itself in war: Organized slaughter creeps under fences that seek to separate, becoming unorganized in a grotesque frenzy of blood and debris. Unchecked passions rush into all the defenseless crevices of human lives, reaching into corners where innocence hides. Largely unwitnessed brutalities necessarily remain untouched by the Geneva Conventions. The places where they happened — in Stalingrad, in Dresden, in Bucha — are the remembered legacies of every war.
Are there both just and unjust wars? In his book by that title (1977), Michael Walzer addresses this eternally compelling question. There may indeed be circumstances where ‘supreme emergency’ suspends morality, he writes, where mere survival demands it, but the perpetrators of such terror are moral criminals nevertheless. Where moral questions become mortal questions, reason descends into the abyss.
The Conventions recognize the urgent necessity of prosecuting blatant cruelty, but such prosecution ignores all the brutality dismissed because of disputed accusations or state-granted amnesty. With these limited prospects, the Conventions seek to offset the despair of confronting all atrocities globally with the hope of punishing occasional atrocities locally.
If this is as deeply as we can ever penetrate evil, God help us.
