By Andrew Ross
All may be fair in love, but not in war.
As the title suggests, the recent Red Cross "Even Wars Have Limits" symposium–held at the University of Calgary’s Rosza Centre–dealt with issues related to the conduct of hostilities. In particular, the symposium focused on International Humanitarian Law and the challenges faced by the Red Cross in eliciting compliance with it.
You may not have heard of International Humanitarian Law, but you have almost certainly heard of the Geneva Convention, the treaty that established it.
Inspired by the idea all parties should do what they can to limit the violence of war, IHL sets limits on the conduct of warfare, and is founded on three principles: necessity, humanity, and chivalry.
The principle of necessity is simply the military necessity to force one’s opponent to submit with the minimum cost in terms of time, money and casualties to one’s own forces.
The principle of humanity states unnecessary casualties are to be limited, including "collateral damage."
The principle of chivalry includes notions of dishonourable or treacherous conduct, such as disguising a military vehicle as an ambulance.
The three principles are considered to have equal weight, and there is a balancing act involved in determining whether an action is legal or illegal.
The problem is IHL was developed by a convention of states representing the entire spectrum of interests, political leanings and military ambitions, and these states were not subordinate to each other or any supranational organization. As a result, the body of IHL is a compromise, and it works only as well as states want it to. As panelist Dr. James Keeley put it, "the lunatics are in charge of the asylum."
"[IHL] has a very limited scope," explained Jean-Pierre Taschereau, the symposium’s keynote speaker, adding that this includes "the protection of non-combatants in times of armed conflict, and the rules, the duties, and the responsibilities–and obligations–of the combatants."
In contrast, International Law deals with items such as the right of nations to declare war, and Human Rights Law concerns universal human rights in peacetime as well as times of conflict.
"The three levels of law are interrelated," Taschereau points out. "But IHL is a very specific niche within the greater realm of international law."
These three bodies of law are generally complementary, but also diverge with regards to how they govern behaviour. For instance, both HRL and IHL prohibit torture, however, IHL allows some people to kill each other within the context of combat.
So why did the Red Cross organize a symposium on IHL?
"Under International Law, Red Cross is mandated to disseminate and educate on the rules of war," said Beth Iredale, Manager of International Services for the Canadian Red Cross Western office. "Canadian Red Cross has to play a role in doing that, and we know there’s a need for this type of information in the community right now. These issues are at the forefront of Canadians’ minds, and it’s a good time to talk about how we can limit the impact of war."
"[The Red Cross] has dialogue with all the states and most of the armed groups in the world," said Taschereau, "to make sure those principles embedded in the Geneva Convention and the other IHL treaties are known and respected–and when they’re not, try to convince the combatants and parties to adhere to those rules."
There are major problems facing IHL today, including non-conventional conflicts like the so-called War on Terror.
Taschereau hinted at the possibility some conflicts are not reconcilable to IHL.
"Most of the conflicts now have the aim of eliminating civilians," he stated. "So the whole purpose of the conflict is in complete violation of IHL. If you look at ethnic cleansing or genocides, whereas the objective of the parties is to eliminate the opposing ethnic group, then obviously that’s a major challenge because the whole humanitarian imperative is put into question."
Another challenge arises from the fact IHL was developed in a time when wars were waged primarily by nation-states and professional armies, but now the majority of armed conflicts are being fought by paramilitary and guerilla groups.
"[There are groups] whose agendas and motives are sometimes not as political as criminal, or there is an uncomfortable blend of the two," explained Taschereau.
The War on Terror is problematic in several ways.
"In terms of IHL, [the War on Terror] is not a war per se," Taschereau stated. "It would amount to an armed conflict when it takes dimensions of open hostilities or protracted combat, but all the security measures implemented in the United States and other countries amount more to an international police operation than an armed conflict."
There is also the question of the status of the prisoners taken by the United States during the war in Afghanistan. Under the Geneva Convention, there are three categories into which people in a conflict zone can fall.
The first of these is the legitimate combatant, who is obliged to wear some identifying insignia clearly marking them as such. People in this category can legally fight, can legitimately be targeted or killed by the opposing forces, and are entitled to the designation Prisoner of War, and all of the associated protections in the event of their capture.
The second category is that of the legitimate non-combatant. These people are not to take up arms or join in the fighting, and in return are not to be targeted for attack or intentionally killed, nor are they to be taken prisoner by either side.
The third and most difficult category is the illegitimate combatant category. This includes anyone who is in between the previous two categories, but even this group is afforded certain protections.
The prisoners captured by the United States in Afghanistan and held at Camp X-Ray in Guantanamo Bay are not being afforded the status of POWs. This may be a legitimate position with regards to non-uniformed al-Qaeda fighters, but most experts concede the Taliban forces qualify as legitimate combatants.
In any case, prisoners taken during a war are required to have the option of being repatriated after the conflict. Until they offer this option to the Camp X-Ray prisoners, the Americans will be considered to be in violation of their IHL commitments.