2016 Year in Review: The Law of War

By Molly Kirwan

 

The law of armed conflict became a more complicated realm during 2016. The ever-increasing prevalence of hybrid warfare, which refers to conflicts that blend conventional and irregular tactics, led some to argue that the Geneva Convention needs to be updated to address issues of warfare in the world of today. The ongoing refugee crisis has reinforced the international focus on protecting those affected by armed conflict with respect to international human rights laws and standards.

The effectiveness and relevance of the Geneva Conventions has been called into question. The Geneva Conventions were agreed upon in 1949, and two Additional Protocols were added in 1977. However, there have been no major updates since that time despite forty years having passed. Given the evolution of armed conflict from traditional, between two states, to hybrid, between a state and a non-state actor, it is widely argued that updates ought to be made.

In May, the World Humanitarian Summit took place in Istanbul, setting many goals and creating many action plans to protect those affected by conflict across the globe. The most relevant to the law of war is the goal to “uphold the norms that safeguard humanity,” largely reiterating parts of the Geneva Convention. The goal purports that respecting the law of war should include

1. Upholding the “cardinal rules,” such as the fundamental rules of distinction and proportionality, which are mandated by the 1977 Additional Protocols. 
2. Ending the targeting of hospitals, schools, and places of worship, and allowing impartial actors to engage in dialogue with those in conflict.
3. Refraining from bombing and shelling populated areas, specifying the end of weapons with intentionally indiscriminate effects.
4. Meeting the essential needs of people.
5. Respecting and protecting humanitarian medical missions.

In March, the International Criminal Tribunal for the Former Yugoslavia convicted Radovan Karadžić of genocide, crimes against humanity, and violations of the laws or customs of war regarding the role he played in the conflict in Bosnia and Herzegovina from 1992 to 1995. He was sentenced to forty years in prison.

The definition of a “war crime” is broadening as well, with Ahmad al-Faqi al-Mahdi being the first person sentenced to prison for cultural heritage crimes as a stand-alone crime. There is growing concern on the issue of prosecuting cultural heritage crimes due to the fact that similar crimes are occurring in countries where the International Criminal Court (ICC) does not have jurisdiction, such as Yemen, Iraq, and Syria. Thus, the ICC cannot act in those countries without a specific mandate from the UN Security Council, which is unlikely to happen given the current dynamics of the permanent five members. This is despite the fact that the ICC President called for participation of States in the Court to be “maintained and enlarged” in October.

After Al-Mahdi admitted to destroying shrines in Timbuktu in the summer of 2012, he was arrested in Niger in 2014, and the ICC sentenced him to nine years in prison this past September. According to the New York Times, the case has “put a new focus on cultural destruction as a war crime, or as a crime against humanity,” at a time when “international law must address deliberate attacks on a people’s heritage when they are an intrinsic part of warfare.”