Geneva Convention principles and international humanitarian law

U.S. war response

The United States, for better or worse, is fully engaged in a war like no other before war previously fought. Put simply, the rules have changed for armed combatants and, while treatises such as the Geneva Convention and the Law of Armed Conflict provide general guidelines, it is important to recognize that, with changing armed conflicts, so, too, must the rules of engagement change.

Fritschi (2010) observes that the principle of equality as expressed in the UN charter, the Geneva, Hague and Vienna conventions and the obligations implied by these treaties with respect to humanitarian law are challenged by the complicated circumstances that have emerged with the rise of asymmetric warfare and the internationalization of conflicts with non-state actors.

International humanitarian law distinguishes between international and non-international armed conflict. International armed conflicts are those in which at least two States are involved. They are subject to a wide range of rules, including those set out in the four Geneva Conventions. However, when armed conflict does not, in fact, result in faction between two states, but instead two conflicting forces, the guidelines become less clear and open to interpretation.

Further, the Geneva Conventions apply at times of war and armed conflict to governments who have ratified its terms. When the Geneva Conventions apply, governments must surrender a certain degree of their national sovereignty to comply with international law. Despite the advantages offered by the Conventions to individuals, political pressures may cause the governments to be reluctant in accepting its responsibilities. For exactly this reason, I suggest that forces against the United States, if not recognizable as a "state," should be accorded less, not more, leniency in combat. The Geneva Conventions and all applicable treatises apply to all cases of international conflict, where at least one of the warring states has ratified the Conventions. In other words, the Conventions apply to all cases of declared war between signatory nations; not counterinsurgency or guerilla fighters. Because the applicable rules of combat do not, explicitly, restrict the rules of conduct for armed forces warfare, I believe that the United States allow the U.S. Armed Forces to conduct themselves as their enemies do (an eye for an eye mentality if you will).

The modern law of war is derived from two principal sources (Program for Humanitarian Policy, 2010); treatises and customary law. While not all laws of war derive from treatises, it is important to consider the prominence of customary law. Such customary international law is established by the general practice of nations together with their acceptance that such practice is required by law.

To fulfill the ostensible rules of war, the laws of war place substantive limits on the lawful exercise of an aggressor's demonstration of force. While the laws require that belligerents refrain from employing violence that is not reasonably necessary for military purposes and that belligerents conduct hostilities with regard for the principles of humanity and chivalry, in reality, opposing forces do little to ameliorate the devastating effects of war and, consequently, the U.S. should work toward reducing the combatant effects by responding with like force against aggressors.

In conclusion, the world, and the wars fought in the world, are ever-changing and require a periodic reappraisal of the necessary and desirable combative elements to achieve peaceful means in wartime. To suggest that the U.S. conform to outdated and inapplicable national treatises in the face of insurgent forces is to undermine the very legitimacy of U.S. involvement in foreign conflict.