Even Wars Have Laws

Published on
by
The Age (Australia)

Even Wars Have Laws

by
Robert Tickner

A number of disturbing statistics emerged from a recent survey commissioned by Australian Red Cross. More than 40 per cent of Australians believe it is okay to torture captured enemy soldiers.

Yet almost all of the 1030 people interviewed believe those accused of war crimes should be prosecuted, and 90 per cent think the international community needs to strengthen and enforce the rules of war. It appears we have a strong case of "it is bad when others do it but okay for us".

In the last decade the international political landscape has sharply shaped the debate about "us" versus "them". In many instances, international legal regimes such as the laws of war found in the Geneva Conventions, have been seen as something to "cut and paste" – applicable only when those detained are on the right side.

The four Geneva Conventions, created 60 years ago this week, are a forceful reminder that international law is for all. The laws of war do not rely upon the distinction of whether those involved in armed conflict are "right" or "wrong" (a highly subjective assessment), but rather require a base line of humanity to be applied even in times of armed conflict. The laws of war are realistic and constantly attempt to balance two competing principles: that of military necessity and that of the requirement of humanity.

Torture is prohibited under the Geneva Conventions and other important international and domestic laws. In recent years a variety of excuses, including threats to state security, have been invoked as an attempt to justify the use of coercive methods of interrogation. Torture and other forms of ill-treatment have an effect on those who resort to such practices and, by extension, the society in which they live. International law, such as that found in the Geneva Conventions, takes into account the legitimate security requirements of detention and interrogation, and yet creates an appropriate and supposedly agreed upon framework.

Historically, whenever torture has been tolerated it has resulted in a permissive environment which in turn escalates its use and erodes its prohibition. From abuse grows hatred and hatred fans armed violence. The torture of detainees, whether they're prisoners of war or civilians, is a war crime. The law does not allow for exceptions due to different points of view.

On the August 12, 1949,the international community was still reeling from the atrocities committed during the dark days of World War II. Reflection on the treatment of civilians during the war resulted in a resolve to develop the legal framework to protect civilians in the hands of the enemy.

It was in this context that existing Conventions dealing with matters such as wounded soldiers, shipwrecked sailors and prisoners of war were updated and the fourth Convention focusing upon civilians created.

At the same time law regulating war between nation states was extended to cover internal armed conflict. Sadly the issue of the prevalence of internal armed conflict and the need to protect civilians continue to haunt us today.

Government officials and representatives of the International Committee of the Red Cross who drafted the Conventions in Geneva, all those years ago, faced a different world from the one we live in today. Yet the fundamental concept of the laws of war: the requirement to distinguish between combatants and civilians; the necessity for military attacks to be proportional to the potential advantage; and the restriction on the use of certain weapons have great traction with current armed conflicts across the world.

Despite these new statistics on attitudes to torture, over and over again people living in many countries, including Australia, have demonstrated that even during times of conflict there is a lack of acceptance of the killing of civilians. Indeed 96 per cent of those interviewed in our survey say civilians should not be the direct object of attack and 85 per cent believe it is not okay for combatants to kill enemy prisoners, even if the other side is doing so.

Australian Red Cross has a mandate to promote and educate the Australian public about the laws of war – what is known as international humanitarian law. The recent survey demonstrates that while 88 per cent of people have heard of the Geneva Conventions, the universal and consistent message that "even wars have laws" needs to be more widely heard and understood.

Robert Tickner is chief executive of the Australian Red Cross.

Share This Article

More in: