Regarding the international community, ongoing hostilities in the Syrian Arab Republic, the rising numbers of civilian conflict-affected [including (1) rising deaths, (2) significant untreated morbidity, (3) the growing internally displaced, (4) burgeoning refugees in contiguous nation states, (5) significant unknown non-combatant detainees – including women and children and (6) the direct, un-displaced conflict-affected] and the “alleged” use of chemical weapons in Syria, two fundamental questions remain to be addressed by the international humanitarian and diplomatic communities in this complex humanitarian crisis:
(1) What is the significance of **Common Article 3** (CA3) of the Geneva Conventions through these hostilities? CA3 states: “The wounded and sick shall be collected and cared for.” The Syrian Arab Republic ratified the 1949 Geneva Conventions on 2 November, 1953 and, hence, is party to the Conventions.
(2) Very importantly: What is the emergent role here for the International Criminal Court (ICC)? Regarding the ongoing conflict and the “alleged” use of chemical weapons, can the UN Security Council not refer these matters to the ICC?
International Humanitarian Law (IHL) should inform the (post Russian-hosted-G20) debate and decision to be taken by the US Congress regarding possible action by President Obama in Syria. It seems to me that the international community has forgotten that there are “rules to war”. These rules of war need to be front and center in media presentations and in this discourse on action in Syria.
The classic rules of war were negotiated and codified at the First (1899) and Second (1907) Peace Conferences at The Hague, Netherlands. These international treaties established terms for conduct of war between nations. The concepts of “jus ad bellum” and “jus in bello” and the military ethical principles of distinction and proportionality – rules of engagement – emerged.
Further legal texts ultimately agreed to in the post-World War II United Nations world, guaranteeing further protections, became known as the Geneva Conventions (1949) (GCs). There are four Geneva Conventions and each one details the protections afforded particular groups – covering the treatment of the wounded on land and at sea, of prisoners-of-war and of civilians – caught in international conflict.
There are two additional protocols to the GCs: Protocol I and Protocol II. These protocols were adopted in 1977 and provide additional detail pertaining to the protections of civilians in conflicts of an international and non-international nature respectively.
Conflicts are not always so easily classified along national boundaries. In such cases, Common Article 3 (CA3) – common to all GCs – can be thought of as the “prime number” equivalent of legal texts, detailing the most fundamental, non-derogable rights of any human being – that in time of conflict: “The wounded and sick shall be collected and cared for.” This is a fundamental tenet of international humanitarian law that bears repeating: in times of conflict, “The wounded and sick shall be collected and cared for.”
Common Article 3 of the Geneva Conventions:
“The wounded and sick shall be collected and cared for.”
It is these “rules” and this IHL framework that should anchor ongoing discussion of action in Syria. All people, including the general public and political leaders, need to be educated and know that decisions taken by state leaders in these matters are neither arbitrary nor free-floating. These decisions are moored in international humanitarian law. This revitalized framework in approaching Syria needs to drive this contemporary course of discussion and inform further international action. As I see it, this is the most rational and deliberate approach that has any distinct possibility of protecting Syrian civilians without additional escalation of hostilities.
For an IHL 101 primer on what is likely to be at the core of President Obama’s thinking on these matters, watch (or read, but, preferably watch) President Obama’s December 2009 Nobel Lecture (links below): “A Just and Lasting Peace” – it is drenched in international humanitarian law.
Catherine Mullaly, MD FRCPC MPH