St. Bernards – To The Rescue by John Emms – Public Domain
“Nobody is thinking subtly right now,” Dahlia Scheindlin told Masha Geesen of the New Yorker. Maybe so. But the incapacity of legal norms to be effective before and during the current horrific outbreak of violence in Gaza and Israel must be highlighted. A certain threshold has been passed well beyond what is permitted by international humanitarian law (IHL). Thousands of innocent civilians have been killed; children and the elderly have been taken hostage; a million people have been displaced. Marco Sassoli, a leading IHL expert and professor at the University of Geneva, summarized some outstanding violations: “People may not be executed, taken hostage, and only military objectives like rocket launchers and command and control centers may be targeted.”
Who now is defending international law? If international law is “The Gentle Civilizer of Nations,” the title of a book by the Finnish legal scholar Martti Koskenniemi, international humanitarian law has had no perceptible civilizing effect on the present conduct between Israel and Hamas. (As for past attempts to civilize Israeli conduct, the United States has vetoed 53 U.N. Security Council resolutions critical of Israel over the past five decades.) While politicians flock to the region to try to keep the violence from escalating, international lawyers must be wondering about the pertinence of numerous conventions and protocols describing wartime dos and don’ts.
One defender of IHL ought to be Switzerland, home of the International Committee of the Red Cross (ICRC). For if Swiss St. Bernards are called on to help victims in avalanches, Switzerland could play the role of IHL St. Bernards in today’s escalating violence.
Officially neutral Switzerland, especially international Geneva, has a particular role in promoting international human rights and humanitarian norms. First, Switzerland is the depository of the Geneva Conventions and their Additional Protocols. The 1949 documents outline what is permitted and not permitted during conflicts. They have been ratified by all states. So not only is Switzerland the physical host to the ICRC, it also has a central role in promoting and implementing the contents of the Conventions and Protocols.
Common Article 1 of the Geneva Conventions says: “All States and other parties to armed conflict have an obligation to respect and ensure respect for international humanitarian law in all circumstances. They must use their influence to prevent and stop violations of this branch of the law, and refrain from encouraging other parties to commit violations.” The ICRC, as guardian of the Conventions and Protocols, is supposed to ensure that the foundational IHL documents are respected.
Very little has been heard from the current ICRC president, Mirjana Spoljaric Egger, in her role as the head of the world’s primary humanitarian organization. In a statement released on October 11, 2023, she said: “Civilians always pay the highest price in conflict. At this critical moment, we urge the parties to respect their obligations under international humanitarian law and to take every possible step to prevent civilians from further harm. All sides must exercise restraint and protect civilian lives and property.” She also reminded all parties that killing and ill-treatment of civilians were against the Conventions. Timid, technical comments well below a moral outrage at how the fundamental rules of IHL are being violated.
The ICRC’s obsession with confidentiality, a fear that being vocal might jeopardize its access to all parties, offers a possible explanation for its limited response. But remaining technical and timid may have reached acceptable limits. A former ICRC delegate, disappointed at the lack of a strong ICRC condemnation, informed me: “And the present Director of the [ICRC] Law Department didn’t even make any statement whatsoever!”
More generally, the timidity of ICRC leadership in promoting IHL in the current conflict perpetuates its diminishing role in defending humanitarian principles. Looking back; it did not publicly condemn the United States in 2004 when photos of the egregious treatment of prisoners by U.S. soldiers at Abu Ghraib became public. Its former president, Peter Maurer, further jeopardized the organization’s moral authority when he joined the board of the neoliberal World Economic Forum in 2014.
Second, the Swiss have not followed through on a most interesting informal proposal for a peace treaty between Israel and Palestine that started some 20 years ago. Following a conference at the University of Geneva, the former Israeli minister Yossi Beilin and a PLO chief Yasser Abed Rabbo signed a comprehensive agreement on December 1, 2003. It included sharing Jerusalem’s sovereignty, Israel’s leaving 98% of the West Bank as well as the totality of Gaza. The question of compensation and return for Palestinian refugees was also part of what was considered a road map for future peace in the region.
U.S. Secretary of State Colin Powell met the authors on December 5, 2003. A letter of support was signed by former Soviet Union President Mikhail Gorbachev and former Secretary-General of the U.N. Boutros Boutros-Ghali among others. The Swiss government under Foreign Minister Micheline Calmy-Rey supported the initiative and its road map. Unfortunately, the Swiss government reduced its financial support for the initiative from CHF 1 million in 2009 to only CHF 180,000 in 2021. On January 25, 2022, the Swiss Foreign Ministry announced it would progressively disengage its financial support for the initiative at the end of 2023. Twenty years of efforts towards a negotiated peace were abandoned just before the current explosion of violence.
Third, just when the world needs an intermediary to negotiate with Hamas, minimally over the treatment of hostages, the Swiss government, which prides itself on its neutrality and historic role of good offices between conflicting parties, has created a task force to study the legal implications of branding Hamas a terrorist organization.
How to reconcile the Swiss labelling Hamas a terrorist organization with Swiss neutrality and its historic role of mediation? Riccardo Bocco, Emeritus Professor at the Geneva Graduate Institute, told Swissinfo: “Switzerland’s previous engagement with Hamas, despite its global perception, allowed it to mediate previous conflicts and negotiations effectively due to its neutral stance,” he said in a recent interview. “The shift towards declaring Hamas a terrorist organization contradicts Switzerland’s historical neutrality and mediating role. It potentially hampers its capacity to navigate and mediate future regional conflicts and negotiations, such as releasing hostages or facilitating dialogues between conflicting parties,” he added.
When things turn bad, counterfactuals will multiply. If only this had been done, then that could have been avoided. The ICRC might have had a more powerful moral voice defending international humanitarian law; the Swiss government could have continued with the Geneva Initiative to find a peaceful resolution in the region; studying declaring Hamas a terrorist organization lessens the possibility of Switzerland being an honest broker between the two parties.
In Switzerland’s absence as a humanitarian leader, other countries are stepping forward. It seems as if Qatar was influential in having two American hostages released. Russia proposed a draft Security Council resolution calling for a humanitarian cease-fire that also condemns violence against civilians. Qatar and Russia! Where are the Swiss humanitarian St. Bernards?
The post Disappearing Humanitarian Norms: Where Are the Swiss Humanitarian St. Bernards in the Palestinian/Israeli Conflict? appeared first on CounterPunch.org.
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