Thursday marks 61 years since the Geneva Conventions - which seek to uphold human rights on the battlefield - were born. But a lot has happened in six decades to change them: everything from increasingly complex border conflicts to the proliferation of rule-breakers such as terrorist organizations.
As Canada's Omar Khadr, whose case represents the most modern application of the treaties, stands trial in Guantanamo Bay this week, Queen's University international law professor Darryl Robinson explains to The Globe's Sarah Boesveld how the Geneva Conventions have changed and why they're just as relevant today as they were in 1949.
What were the conventions intended to be?
The first two conventions protect the sick and wounded, the third one protects prisoners of war and the fourth one protects civilians. And that was what was new about the Geneva Conventions in 1949: the deliberate intent to extend protection to civilians. The focus on protecting civilians has remained the focus of Geneva Conventions and of humanitarian law. There are several ways the context has changed, so we've had to kind of update how the conventions are treated.
How have we had to change them?
The original Geneva Conventions were very focused on international armed conflict and conflict between two states. But since then, almost all armed conflicts now are internal - about 90 per cent are inside a country's borders. They just did not apply to internal armed conflicts. As far as solutions, one was the additional protocol, another was various agreements that they've made and other little treaties. But the big change was a lot of judicial interpretations deeming that large parts of the Geneva Conventions apply to any kind of conflict.
Is upholding the Geneva Conventions in Afghanistan one of the Canadian Forces' prime mandates?
Canadians recognize the applicability of the Geneva Conventions, they have a lot of training on them. There's some debate about whether Afghanistan is an international or an internal armed conflict, but either way, there's a certain core of rules. The most important provisions are that you can't target civilians, you have to protect them. You have to make sure that whenever you're attacking a military target, that any anticipated damage to civilians has to be proportionate. When you have a prisoner of war or a civilian, you have to treat them humanely and not torture them. Canadians recognize that.
How do the conventions apply in a place like Guantanamo Bay?
That's a good example of how the conventions have evolved. The Bush administration [in 2006]asserted that because the Taliban and al-Qaeda don't follow the rules of the Geneva Conventions, they don't get any of their protections.
And activists would assert that's not fair.
Yes. The Bush administration claimed that there's a new category called unlawful enemy combatants, which gets none of the benefits of being a combatant and gets none of the benefits of being a civilian, therefore you can do whatever you want to them. The U.S. Supreme Court stepped in to say 'No, everyone falls under something in the Geneva Conventions. You're either a civilian or a combatant.' So the people in Guantanamo Bay either are civilians who shouldn't have been fighting and can be punished for that, but as civilians they get human rights. Or they're combatants who were breaking some rules, but they still get prisoner of war status.
So is Omar Khadr, who is currently facing trial, a civilian fighting or a combatant breaking rules?
This is one of the issues we have not quite resolved about the Geneva Conventions. There's no fifth category of people who fall through the cracks.
You study contradictions that might arise in international law. Are there any within the Geneva Conventions as they've evolved?
The Geneva Conventions definitely have a tension in them. The aim is to protect civilians, but they also allow military to conduct an armed conflict with the aim of winning the war.
How does this tension manifest itself? Obviously you have to have a place to fight the war and if people live in that environment, they're going to be affected by it.
That's definitely one of the biggest tensions. If someone's doing an aerial bombardment campaign, the people from the military will actually review the targets, they'll have to assess the military value of the target and try to assess the civilian losses that would happen from attacking it and try to decide if it would be proportionate or not, which is an incredibly difficult thing to do. Those kinds of decisions really show the tension between military imperative, which is to remove the enemy side capacities, while at the same time trying to minimize the harm to civilians. It's a difficult to impossible balancing act.
Is the international community doing enough to deal with these new rule-breakers, such as al-Qaeda? There are still terrorist bombings, civilians are still dying.
The difficulty for something like the Geneva Conventions is that they apply at the vanishing point. The vanishing point of international law means they're trying to apply in armed conflict, which is the exact circumstance when people are the least likely to comply with rules. There's violence and emotional intensity, so it's not surprising that there are a lot of violations of the Geneva Conventions. The No. 1 challenge for the Geneva Conventions isn't making new rules, but enforcing the rules that we have. A lot of impressive things have happened in getting compliance and enforcement of these rules even though they're trying to apply in this impossible situation of armed conflict.
This interview has been edited and condensed.