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from issue no. 12 - 2005

Relaunching Geneva

From Zrebrenica to Falluja, modern wars are fought ignoring the humanitarian limits imposed by the Geneva Convention. An interview with Vincenzo Buonuomo Professor of International Law and Organization at the Lateran University of Rome

Interview with Vincenzo Buonuomo by Davide Malacaria and Pierluca Azzaro

The photos accompanying this article are taken from the documentary Falluja. The hidden massacre, broadcast by RAI News 24 on 8 November. We have avoided the most horrendous of the images contained there

The photos accompanying this article are taken from the documentary Falluja. The hidden massacre, broadcast by RAI News 24 on 8 November. We have avoided the most horrendous of the images contained there

Is the age of the Geneva Convention over? Has perhaps the dream born at the end of the Second World War, when the nations sheathed their weapons and ideologies in an attempt to work out a doctrine capable of putting a brake on the atrocity of conflicts foundered for ever? The bombing of helpless civilians in Falluja – with the employment, among other things, of white phosphorus, capable of melting human bodies like wax – the secret transporting of suspected terrorists and prisoners of war, perhaps to Poland, Romania and other states in the East to be tortured there according to a gruesome subcontract, and the other amenities set up in this asymmetrical war on terrorism, that in actual fact is in danger of becoming ever more symmetrical, can only disturb those who truly have Western civilization at heart, but also the multiform Eastern civilizations. And give rise to a question: is international law over and done with and, with it, all human rights? Many people, us among them, hold on to the hope that it’s not so. We talk to Vincenzo Buonuomo of the Lateran University, where he is Professor of International Law and Organization in the Faculty of Civil Law, and where he heads the postgraduate school in “Studies on the International Community”. He has recently published Cooperation and development: the international rules. We asked him about the state of health of the Geneva Convention of 1947, as the body of law is described, though in fact it is formed of four distinct conventions, aimed at safeguarding in warfare the civilian population, the wounded, the shipwrecked and prisoners.

In his message for peace at the end of last year the Pope dwelt on what Vatican II says on human rights in time of war…
Vincenzo Buonuomo: The Gaudium et spes, in brief, states that not everything is allowed during a war: even in such tragic situations there are rules to be respected… That is the function of international humanitarian law.
It would seem that has not been the case recently. In Falluja, for example, civilians were bombed.
Buonuomo: There was in Falluja a violation of the norms of international law. Unfortunately it is not an isolated case. If we consider the use of military force and the terrorist acts in Iraq even in the period preceding the recent intervention – the frequent bombing of civilians, for example – we see that the principles of the Geneva Convention have been repeatedly violated. But we must widen the field: Falluja has highlighted the way in which even the “minimal parameters” are neglected in conflicts today, that is not only the rules of the Geneva Convention, but even those principles of an ethico-moral character, what are known as the inderogable principles, the ius cogens, that are presumed to lie at the basis of behavior, of human relations, of a mature awareness of the international community, valid also in situations of conflict. I’m thinking for example of the indiscriminate use of violence, or of the means that bring about useless suffering, of the choice of “non-military” targets in the use of lethal weapons.
Forgive us if we insist on Falluja, but, among other things, white phosphorus was employed in that city which, apart from the more or less fanciful justifications – that it was used as a light source – is forbidden by the Geneva Convention. When this crime came to light some people claimed, as justification, that the US had not ratified the protocol that forbids the use of that type of weapon…
Buonuomo: The reference is to the 3rd protocol – that interdicts the use of incendiary weapons – of the Treaty of Geneva signed in 1980, on the prohibition or limitation of the employment of conventional weapons that cause useless suffering or strike in an indiscriminate way. One should, however, keep in mind that the Conventions that limit armaments, like those on human rights, do not contain only rules that create obligations for the States that underwrite them, but they often “codify” principles and usages already existing. A State can say it is not bound by a determinate law (protocol, convention), but it is nevertheless subject to the general rules and usages that the Geneva Convention, or those on weapons, have summarized and that do exist, that is they are international law, independently of those conventions. That means recognizing the growth in international law over the last century, and also its foundation. Not signing up to a written rule does not justify the violation of the ethico-moral parameters that are at the basis of the international order, otherwise one comes to the “right of the stronger”, as recalled by Benedict XVI to the diplomatic corps to the Holy See on 9 January last.

Does that mean that human rights pre-exist the Geneva Convention?
Buonuomo: I’m saying that in Geneva a summary was arrived at, a codification; it was not the working out ex novo of rules previously non-existent. Those kinds of rule were already beginning to be talked of with the institution of the Red Cross, in 1863, with the Convention on war-wounded of 1864, and then, in terms of specific aspects, at the international peace conferences held in the Hague in 1899 and in 1907, aimed at humanizing conflicts and, in particular, limiting the use of certain weapons, that were the cause of useless suffering. A need felt still more even after the use of gas in the First World War. Then, with the Second World War and the heavy involvement of civilians in conflict, in 1949 came the Geneva Convention, representing a sort of reply by the international community to the violation of the rules of the traditional ius in bello and of ethico-moral principles during the conflict. The novelty of an international humanitarian law after 1949 lies in the fact that it deals not so much with the limitation of the means of war, but the protection of the human person.
But there was no provision of sanction for those who violate the Convention…
Buonuomo: There had been the shock of the Second World War. And there was the certainty, perhaps naive, that what had happened would no longer be repeated. There was a lot of insistence on what are known as “non juridical guarantees”, i.e. on the shaping of public opinion, of soldiers themselves, as also on the role of the religions. But then, unfortunately, it was quickly noticed that the Convention had holes: for example, during the period of decolonization, with the experience of the liberation movements, it turned out to be inadequate. For that reason two protocols additional to the Convention were worked out in 1977. Unfortunately military technologies are in continual evolution and, in consequence, the rules for regulating situations of conflict need to be continually updated. To give an example: anti-personnel mines, so widely used in modern conflicts, were only banned by the Convention of Ottawa in 1997... And still, the dramatic happenings in the Balkans – think of Zrebrenica – have altogether been a tragic check on the Geneva Convention and an alarm bell warning of its inadequacy. All this, however, does not mean that there is a legal void in which everything is permitted. The principles of humanity remain ever valid and applicable. Respect for the rules during wars is not a thing of today, but belongs to a sort of code that has always accompanied mankind. Historically, international law was split in two parts: the international law “of peace” and the international law “of war”. Anglo-Saxons have long held to this distinction…
But can’t the transgressors of these humanitarian rules be sanctioned?
Buonuomo: Today the international order has at its disposal the international penal court of the Hague, competent to sanction transgression such as those of war criminals, crimes against humanity, genocide and aggression. However the Court, in general, can take action only in a “complementary” way to that of States, which are the first who must sanction those who violate the Convention. Furthermore not all states recognize the jurisdiction of the Court, which, for that matter, is flanked by penal ad hoc tribunals: for former Yugoslavia, Rwanda, Sierra Leone and East Timor.
Does simple membership of the UN bind a State to any international obligations of a humanitarian sort?
Buonuomo: I’d go further: the mere fact of belonging to the international community means accepting the values universally recognized. Benedict XVI, speaking to the ambassadors, put it clearly: international relations must conform to justice and legality. Justice comes before the law. If then a state becomes part of an organization such as the UN, that has the duty to ban and limit the use of force, it takes on the consequent bonds. There are countries that on the one hand demand United Nations intervention in situations in which they are not directly involved and refuse to acknowledge the intervention of the organization when it doesn’t suit their own interests…

Could the United Nations make itself promoter of a relaunch of the Geneva Convention?
Buonuomo: The UN General Assembly has made many appeals to its members to update the Convention. Furthermore it has put pressure on countries so they take into consideration the various plans for reform put forward by the international committee of the Red Cross, the body that has been charged with the task. But the United Nations can promote the relaunch of human rights in yet another way: for example, a month ago, in the ambit of the reform of the UN proposed by Kofi Annan, a new body was set up, the Peacebuilding Commission, with the task of indicating ways to exit from a conflict, with initiatives for restoring peace. It is, in fact, a body that, in monitoring the situation of an area in crisis, has also to take account of violations of human rights that it comes across. A very useful body…
Can the relaunch of a juridical instrument for limiting the atrocity of conflicts such as the Geneva Convention, help us out of this climate of the clash of civilizations caused by opposing religious extremisms?
Buonuomo: Of course. But I’d like to stress that the ambit in which the Geneva Convention arose also had a religious underpinning. When we speak of ethico-moral principles at the basis of the Convention, the reference is to values taken from the religious heritage, that has respect for life and for the person as its starting point. This also enables us to distinguish between religion and religious fundamentalism, that remains a criminal way of understanding the religious message. The values that lie at the basis of international humanitarian law are shared by all the great religions, and, in particular, Christianity has provided an essential contribution with its conception of the person and his/her dignity. Nor, then, can one deny the contribution of the Church, of the religious orders and of military chaplains in alleviating suffering during conflicts. This just to say that even today, as in the period in which the Convention was worked out, the religious element must be seen as part not of the problem, but of the solution.

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