THIS year is the 70th anniversary of the four 1949 Geneva Conventions which today, form the core international humanitarian law (IHL) treaties. IHL is a branch of international law that recognizes the sad fact that human beings, since the beginning of time have always resorted to violence as a way to settle disagreements.
IHL sets forth rules to limit the brutality of wars and armed conflicts to all warring parties without judging how it started, who are the parties, who is right, and who is wrong. It is interesting to note that in many traditions, religions and customs around the world, such rules have always been existing. It was this humanitarian spirit that led to the first Geneva Convention in 1864.
The four 1949 Geneva Conventions were agreed in the aftermath of the Second World War where the memories of the enormous horrors remain fresh in the minds of many. The battlefields and the Holocaust brought untold suffering and destruction.
The war in the Pacific and Southeast Asia was just as cruel as it was in Europe. In Malaysia, as it was elsewhere, the civilian population suffered tremendously.
It was precisely for the purpose of better protecting civilians that Switzerland, on 21 April 1949, convened a diplomatic conference in Geneva. The conference brought together representatives from almost all States at that time.
Malaysia, obviously could not participate at that time as it had still not constituted as a State. Nonetheless, Asia was represented. To name a few, Thailand, the Philippines as well as formerly Burma were present and had contributed the Asian view.
Malaysia became a party to the Geneva Conventions on 24 August 1962 and subsequently adopted the Geneva Conventions Act 1962. Today, the Geneva Conventions are among the few treaties that have been universally ratified. ASEAN’s support for IHL is notable, especially since all member states are a party to the Geneva Conventions, and have uniformly agreed through the ASEAN Charter that IHL must be upheld.
The Geneva Conventions places people and their needs at the centre. What this means is that people’s safety, dignity and well-being, including that of children, women, elderly people, injured and sick people, people with disabilities, and detained people must consistently be protected. A fundamental obligation that flows from this is that people must be treated humanely.
The Geneva Conventions were the first treaties to prohibit rape and other forms of sexual violence in armed conflict, clearly showing that States have since 70 years ago declared that there is no place for sexual violence in wars.
Today, rape and other forms of sexual violence are recognized as war crimes. It is , however, a painful fact that sexual violence still occurs. It remains a brutal and unacceptable reality for women, men and children in many armed conflicts.
In too many armed conflicts around the world, we see enormous violations of IHL. Prohibited weapons are used, health care or humanitarian workers are killed, civilians are deliberately targeted.
There are tragic examples from the Philippines, Afghanistan, Myanmar, Yemen, Somalia, Nigeria, Ukraine, Palestine and elsewhere. These violations demonstrate that there continue to be failures to protect people every day.
These violations may lead to a perception that IHL principles are never respected or that they are not relevant. However, it would be wrong – and indeed dangerous – to believe that IHL is consistently violated and therefore irrelevant.
We should also be mindful of examples where IHL has been respected and had saved thousands of lives – IHL works. While it is often less reported or visible to the public, we can witness on various occasions that IHL is respected, for instance, a wounded person is allowed through a checkpoint, a detainee is able to send a message to his family members, a child on the front lines receives necessary food and other humanitarian aid.
Both the violations and everyday achievements should remind us of the importance to collectively commit to do more and to do better; to implement and to respect the principles and rules of IHL.
The first question is, what can the ICRC do to ensurer better respect for IHL? Through the Geneva Conventions, States gave the ICRC the mandate to protect and alleviate suffering in wartime.
The ICRC is close to the civilian population in places exposed to the dangers of wars, delivering food and other vital items. The ICRC also takes measures to ensure respect for IHL. It continuously reminds the parties to the conflict to ensure that their behaviour complies with IHL.
Second, what can States do to ensure better respect for IHL?
There are numerous measures that can be taken by States to ensure better respect for IHL.
First, the Geneva Conventions demand that States teach IHL to their armed forces and the general public. The underlying idea is that knowledge of IHL is the first step to ensuring better respecting. However, note that the Geneva Conventions recognized that respect for the law requires more than mere knowledge of it.
For this reason, the Geneva Conventions demand the adoption of legislation and setting up of special structures by the State parties. For instance, States are required to criminalise war crimes under national law and in case of the commission of such crimes, to investigate and sanction them.
When wondering what else States can do to ensure better respect for IHL, one should bear in mind that since 1949, many more IHL treaties have been adopted to reaffirm and develop the rules laid down by the Geneva Conventions.
The decolonization conflicts and wars of national liberation that erupted throughout Africa and Asia in the 1960's and 1970's led to the adoption of Protocol I and II additional to the Geneva Conventions. While the development of new technologies and weapons have led to the adoption of special weapon treaties restricting or even prohibiting certain weapons.
Malaysia is party not only to the Geneva Conventions, but also to other weapon treaties such as the Convention Prohibiting Chemical Weapons, the Convention Prohibiting Biological Weapons and the Anti-Personnel Mine Ban Convention. Yet there are numerous other treaties which Malaysia has yet to ratify.
One might wonder why a peaceful country should ratify those treaties. One pessimistic argument could be that no-one can predict what will happen in the future and unfortunately, examples around the world support this argument. But even if we are optimistic and believe that peace will prevail, there are other important arguments why any State should become a party to more IHL treaties.
The accession to an international treaty sends a clear message to the world. It underlines the importance of these rules and is a pleading for their respect in places around the world, underlining the need to stop unacceptable brutalities.
Moreover, two recent IHL treaty practices of Malaysia illustrates that the world has become a smaller place, where the accession to IHL treaties matters to all countries, including to countries which are currently not in conflict.
In the first instance, Malaysia signed the Arms Trade Treaty in 2013. Once this is ratified, Malaysia will show its strong commitment to the essence of the treaty which states that weapons – including those transferred here – must not fall into the hands of persons – elsewhere – who are known for grave violations of IHL and human rights.
Separately, in 2017, Malaysia signed the Treaty on the Prohibition of Nuclear Weapons. It is notable that Malaysia played an important role during the negotiations of this treaty. Malaysia’s potential ratification of the treaty will send a clear message to the world that: no nuclear weapons must ever be used! This is not only of importance to countries possessing nuclear weapons, but to all countries which are at risk of being victims of this overwhelmingly destructive threat.
In conclusion, the Geneva Conventions set forth fundamental obligations which even after 70 years remain very much relevant today. These core obligations are complemented by new treaties such as the Arms Trade Treaty and the Treat on the Prohibition of Nuclear Weapons. Malaysia’s accession to these treaties is necessary especially in a world that has become increasingly smaller.
* Dr Jan Römer is Regional Legal Adviser, International Committee of the Red Cross (ICRC) ** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.