Geneva Conventions: 'Strained' laws of war face brutal Gaza test as they turn 75

Red Cross head tells The National that the situation in Gaza is setting precedents for other conflicts

Civilians living under military occupation are entitled to protection under the Geneva Conventions but Israel is accused of breaching their terms with its campaign in Gaza. EPA

The Geneva Conventions, the laws of war, turn 75 years old on Monday as conflicts in the Middle East and Europe put their high humanitarian ideals to a brutal test.

Amid the ruins of the Second World War, the four treaties of August 12, 1949, laid down rules for the humane treatment of civilians, medics, wounded soldiers and prisoners of war.

“Even wars have rules,” as the lettering says on the Red Cross headquarters overlooking a UN compound in Geneva.

During the post-9/11 “war on terror” the Geneva rules were written off as old-fashioned in some quarters as the US waged a new kind of war with Al Qaeda.

But amid the land battles and military occupations of 2024, they are once again a crucial measurement used to judge, often harshly, the legal scruples of Israel, Hamas, Russia and Ukraine.

Mirjana Spoljaric, the president of the Red Cross, told The National she was “extremely concerned about the precedent that the situation in Gaza is setting for other conflicts”.

“The Middle East sits on a precipice that already sees the misery Palestinians and Israelis have endured radiate outward,” she said at a press conference marking the anniversary in Geneva.

Around the world “humanitarian law is under strain – disregarded, undermined, to justify violence … the dehumanisation of both enemy fighters and civilian populations is a path to ruin and disaster”.

Philippe Lazzarini, the head of Palestinian aid agency UNRWA, said the rules of war were "broken day in, day out" by Israeli forces in Gaza,

In military camps and headquarters around the world the conventions “have got a place in people's minds”, said Andrew Clapham, an international law professor at the Geneva Graduate Institute and a former UN adviser.

“Most soldiers, officers, fighters and rebels have heard of the Geneva Conventions, and it carries some weight in the sense that they have a vague idea that they can rely on them if they're captured,” he told The National.

The Israel-Gaza war has brought to the surface a feeling of double standards, that it never seems to be the West or its allies hauled into war crimes courts.

Lawyers and campaigners have frequently opened the Geneva Conventions to condemn Israel for its campaign in Gaza and its settler policy in the occupied West Bank.

Switzerland's ambassador to Oman, Thomas Oertle, said the conventions were "as relevant as ever" but "often not respected".

But with Russia also in the crosshairs of war crimes lawyers, the months and years ahead may prove to be a bigger moment for the Geneva Conventions than the anniversary passing on Monday.

Then and now

The first Geneva Treaty was signed in 1864 when rules were adopted on the treatment of wounded soldiers. Principles were laid down that medical staff should be protected and the injured cared for regardless of nationality.

They were the brainchild of Red Cross founder Henri Dunant, a Swiss businessman who was appalled by the suffering he witnessed at an 1859 battle in Italy.

A second convention in 1906 covered shipwrecked personnel, while a third in 1929 set rules on the treatment of prisoners of war. But the Second World War made clear that it was not just soldiers who needed protection.

The fourth Geneva Conventions, signed on August 12, 1949, demands that civilians be treated equally and humanely when caught up in battle or living under military occupation.

One crucial section banned occupying powers from forcibly displacing civilians or moving their population into captured territory.

At the same time, the treaties of 1864, 1906 and 1929 were updated to make a set of four Geneva Conventions that remain in force today.

The idea behind them is that “even when barbarism seems all around, human rights must prevail,” former UN secretary-general Ban Ki-moon said in 2009.

Modern warfare

In a post-9/11 world far removed from 1949, Mr Ban warned in the same speech that more thinking was needed about how the laws of war applied to non-state fighters.

Former US president George W Bush ordered Geneva's prisoner of war rules not to be applied to Al Qaeda, whose militants were deemed “unlawful combatants”.

One White House legal memo said the need to prevent terrorist attacks “renders obsolete” Geneva's limits on questioning prisoners. It said some of the rules were “quaint”.

But a kind of warfare more familiar to the framers of 1949 is playing out today as Ukraine and Russia's armies do battle and Israeli troops occupy Gaza and the West Bank.

The International Court of Justice ruled last month that Israel's settlements in the West Bank were in breach of Geneva's rules on population transfer.

Judges in The Hague also reminded “all states” that the risk of the conventions being breached should loom large over their arms exports to Israel.

Ms Spoljaric said the world “must recommit” to laws of war described as “principles of humanity” shared across societies and religions.

“Some states and armed groups have sought an increasingly expansive view of what is permissible,” she said.

“Where are the peacemakers? Where are the men and women leading the negotiations and preserving the space to do so?” .

Criminal risk

What are the consequences of a breach? When the Geneva Conventions were signed there was no permanent court that could bring war criminals to justice.

The Nuremberg trials of Nazi war criminals, which introduced the idea of crimes against humanity into law, were held by a special Allied tribunal. It was another one-off court, the criminal tribunal for the former Yugoslavia, that found Serb commanders guilty of the 1995 genocide of Bosnian Muslims at Srebrenica.

The Yugoslavia trials fuelled an appetite for a permanent court, leading in 2002 to the establishment of the International Criminal Court.

The war crimes covered by the ICC include “grave breaches” of the Geneva Conventions, for example killing or torturing people entitled to their protection.

Suspected war criminals have found themselves hauled into national courts in countries such as Germany and Switzerland under a principle of 'universal jurisdiction'.

“We've seen people being prosecuted for crimes committed in Liberia or Gambia who were not thinking that they would ever be prosecuted,” Prof Clapham said.

“They sought to live in Switzerland and then found themselves being prosecuted, the same as happened to Syrians in Germany, and there are prosecutions in Sweden, France and elsewhere.”

Gaza and Ukraine

Last year, the ICC issued an arrest warrant for Russian President Vladimir Putin over the alleged abduction of Ukrainian children.

This year, prosecutor Karim Khan applied for warrants for Israel's Prime Minister Benjamin Netanyahu, its Defence Minister Yoav Gallant and three leaders of Hamas, of whom two are now dead.

Israel is accused of using starvation as a means of war in Gaza, including by blocking aid that the Geneva Conventions say must go to civilians.

Lawyers have repeatedly invoked the conventions in a back-and-forth over whether the case against the Israeli command can proceed.

While one argument is that only Israel can punish its citizens under a 1990s peace deal, pro-Palestinian lawyers counter that those accords are trumped by the Geneva Conventions.

The interim Oslo Accords “cannot diminish or prejudice the rights of those under occupation”, which are guaranteed the by Geneva Conventions, the Organisation of Islamic Co-operation said.

In a legal filing, the OIC went on to say that some states “apply double standards and support the brutal aggression against the Palestinian people, granting the Israeli occupation immunity”.

The perception of double standards is “very damaging, in the sense that there's a feeling of unfairness,” Prof Clapham said.

“The big test now is of course the request for arrest warrants against the Israeli Prime Minister and Minister of Defence, and how not just the ICC deals with it but how western states deal with it.

“Everything that they said about the arrest warrant for Putin somehow is then tempered when they talk about their allies. That is going to be a big test.”