Afghanistan Analysts Network – English

International Engagement

A Year-Ender: The Dummies’ Guide to the Geneva Conventions

Susanne Schmeidl 9 min

While the Taleban have been stepping up their assassination campaign in the past year, another worrying development occurred: There were several cases of international forces, Special Forces in particular, entering NGO-run clinics on pursuit of alleged insurgents, bullying medical staff for treating insurgents or using clinics temporarily as bases. This clearly violates the Geneva Conventions. Our colleague Susanne Schmeidl answers the question why raiding civilian facilities may not be the best strategy for winning Afghans’ hearts and minds and gives a little lesson of help to our friends on valid International Humanitarian Law.

Sitting back home and reflecting on the ending year 2011, I find, frankly, that it was not such a good one. I cannot help but thinking that there is something really wrong with how the ‘gloves have come off’ in the war in Afghanistan. Civilians are killed on both sides, and more and more friends are among them, such as my journalist friend in Uruzgan who was mistaken for an insurgent in late July, followed by two friends who were killed while hiking in the Salang in August.

As a civilian who has been working in Afghanistan for nearly ten years, I have started to wonder about some of the things I have seen that are making the situation worse in Afghanistan. This includes the insurgency’s tactics of targeted killings of government or pro-government individuals, random killings of civilians during suicide attacks when they are just ‘in the wrong place at the wrong time’, using civilians as shields, attacking NGO or government facilities regardless of their nature (schools, clinics, you name it), and, yes, even religious leaders.

So, if we have not known it already, there is something really wrong with the insurgency and how they are changing warfare in Afghanistan.

But then, there is also something equally wrong with how international military, especially Special Forces, are lowering the bar of their behaviour.

While on one hand they are trying to improve how they are conducting night raids (as for them quitting them is clearly out of the question (read a report by TLO/OSI about this issue here) some of the guys on the ground seem to keep coming up with new ideas that want to make one scream. In the fall this was the raiding of medical facilities in Afghanistan’s contested eastern region as well as intimidating staff working in such facilities. And given that the international military is in Afghanistan to build the capacity of Afghan forces, the latter follow suit. So rather than watching a bad action movie, I feel that I’m caught in one. And the message of such actions seems to be clear: Don’t ever bother to help anybody Special Forces may see as a potential bad guy, or they’ll treat you as one.

Numerous discussions of whether or not the Geneva Conventions apply in Afghanistan aside, it occurred to me that possibly there are simply some misunderstandings about International Humanitarian Law (IHL). After all, soldiers are not lawyers, and it’s been a terribly long time ago that the initial Geneva Convention was adopted, in 1949, with the Additional Protocols (APs) following in 1977; some of us were not even born then.

So in order to make 2012 possibly a better year for some of the civilians out there, here is an attempt to select some of the most pertinent issues out of the Geneva Conventions and rephrase them so that also the Special Forces understand how special the Geneva Conventions really are and why following them is a good way to win the hearts and minds of both the Afghan population and the international civilian actors working in Afghanistan, unless that aim has been abandoned with transition and exit at the horizon.

Let us take it from the top: The Geneva Conventions consist of four treaties, and three Additional Protocols — find the links here — that establish the standards of international law for the humanitarian treatment of the victims of war.

Why do we have these Conventions? They were developed to regulate the conduct of armed conflict and to limit its effects. Yes, any war is dirty, and it means killing people, but the Geneva Conventions tried to ensure that those people that are not taking part in hostilities — civilians, and among them health and aid workers — and those who are no longer participating in hostilities — the wounded and sick — are protected, and not just from the ugly and the bad, but also from the good guys out there. This includes the Special Forces; there are no special categories ore exceptions here.

For the military lawyers out there, yes, we know that there is this entire debate whether the Geneva Conventions apply in Afghanistan or not. After all, so goes the argument, it is not an armed conflict of international character. I know that the argument is that, in this case, the international forces support one party in a local conflict and therefore the conflict remains to be a non-international one. Although this seems to be widely accepted, it never sounded convincing to me. But guess what, there are parts of the Geneva Convention that even apply in such confused and murky situations: Civilians have the right to be protected, regardless of the nature of warfare, that’s where the buck literally stops. I am not so sure about extra-terrestrial conflict, but as alien as Afghanistan may feel to some of us, we are still very much on earth.

As complicated as the Geneva Conventions may be, there is Common Article 3. (NB: Common means that Article 3 is common to all four Geneva Conventions; hence it applies to all types of armed conflict). This was even affirmed by the International Court of Justice in 1986, in the case of Nicaragua, a country a bit closer to home for many Special Forces in Afghanistan.

Common Article 3 is really a minimum yardstick of behaviour nobody should fall below. And even if your enemy does — and yes, we all know that the Taleban are ignoring pretty much all of what is written in this article –, do you really want to be seen on par with them? Think about those who are fronting your bill (taxpayers at home). Many at home possibly want you to behave a bit more like the good guys they see you as.

In a last attempt to not let the bar drop any lower than it already is in Afghanistan, for all those busy good guys that simply slept through some training sessions and don’t have time to google the Geneva Conventions, here is all you ever needed – the Dummies’ Guide to the Protection of Civilians under the Geneva Conventions (emphases are all mine):

Rule 1: EVERY civilian is protected, even if there is a presence of enemy fighters hiding within the civilian population.

This means that you cannot raid a village randomly just because you think there are insurgents hiding. And even if you do, because you have evidence of insurgents present, you have to ensure that you (and of course your dogs as well) are extra polite to the civilians on site.

When in doubt, then a person should be first and foremost considered a civilian, and NOT a fighter, enemy or bad guy. In other words, a civilian is to be considered not a Taleban fighter until proven that he is a Taleban fighter, not the other way around. Hint: In places like Uruzgan even the intellectuals wear black turbans, long shalwar kamiz (the pyjamas worn by men) and a black beard. We understand this makes things a tad bit difficult and complicated, but that’s just the way it is.

If STILL in doubt. A civilian population comprises all persons who are taking no active part in the hostilities. For those who need a mental bridge here:

• First, taking part in hostilities is laying IEDs, ambushing police and military etc. NB: Guys with guns are not necessarily bad guys. There are free and democratic countries such as the US and Switzerland where the civilian population has the right to bear arms, even though they are not in war and don’t fight an insurgency. Afghanistan’s laws also don’t ban private arms possession in general, as long as they are registered and licensed by the Ministry of Interior, and an increasing number of civilians is obtaining weapons licenses due to lacking law enforcement and a deterioration of security.

• Second, providing shelter, food or medical treatment to insurgents does not constitute active support or direct participation in hostilities or automatically makes you a card-carrying member of the Taleban. Many civilians have no other choice than to accommodate Taleban knocking at their door if they want to stay alive, just as they cannot refuse a night raid by Special Forces. Or, can they?

Rule 2: Every party to the armed conflict (or fighter) is bound by the Geneva Conventions, especially Common Article 3. 

What is a fighter? Insurgents of course, but also militia, and yes, also Afghan National Security Forces and the various versions of International Military, which includes Special Forces. Sorry guys, you may have a license to kill (or capture) and carte blanche for many other things, but that still makes you a fighting party to a conflict. The special Common Article 3 of the Geneva Conventions does apply to you as well.

What is a civilian? Farmers, shopkeepers, teachers, health care workers, and other ordinary Afghans who you may think sympathize with the insurgency, but are not actually WITH the Taleban, or Haqqani or any of these other bad guys out there.

What does being bound to Common Article 3 of the Geneva Convention mean? Every party of to the armed conflict, with no exemption to Special Forces, must distinguish between civilian and military objects.

• Civilian objects include, among others, clinics, educational institutions, mosques, public gatherings and weddings — and using them as a temporary military base is really not a good idea as this blurs the lines terribly. Oh, and I nearly forgot, this includes NGO premises as well, Afghan and international. Possibly this term — Non-Governmental Organisation — is not clear enough and should be, in an Afghan context, non-partisan organization or non-Taleban organization instead, or neutral-not-in-support of Taleban organization (albeit that acronym would be a killer).

Rule 3: Everybody, regardless of race, colour, religion or faith, sex(and sexual orientation — ok, I admit I made this up; just checking if you are still paying attention), birth or wealth or any other similar criteria — this includes ‘the good, the bad, and even the ugly* and other would-be insurgents, all have the same right to medical treatment.

• To complicate matters, this also includes member of armed forces who have laid down their arms and those ‘hors de combat’ (not able to fight any longer) by sickness, wounds, detention, or any other causes, shall in all circumstances be treated humanely; yes, even if they are nasty Talebs. So forget the rule that anything inconvenient does not apply. It does.

Rule 4: Medical staff who treat the good, the bad and even the ugly, are simply doing their jobs and complying to the ethical requirements of their medical profession. In plain language: You should not bully health care staff into not providing medical treatment to what might be or possible are Taleban.

And even if these rules were different, which they are not, how is medical staff supposed to distinguish between those who they are treating? Should there be an admission form where patients can tick boxes such as ‘pro-government’, ‘not sure yet’, ‘civilian’, ‘possibly Taleban,’ ‘definitely Taleban’, ‘one hell of a bad motherfucker’? Common Article 3 was made for a reason.

I realize that the above was possibly still too complicated, so I am now trying to boil it down to three simple mantras (three to link it to Common Article 3 — get it?):

Thou shall not attacks civilians (or civilian sites), not even for reprisal purpose, and above all not indiscriminately. (We of course know that Special Forces work very targeted; and here we have to apologize for the ignorant people of Afghanistan’s south, east, southeast, …)

• Thou shall not instill terror into civilians (including health care personnel and NGO workers). I know terror can bedefined in so many ways that this might be a difficult rule. Let’s work with a visualisation: You are fast asleep in the safety of your own home, and, wham! Your house gets broken into. Feeling terrorized already? Not good enough? Let’s try another one: You are working in a coffee shop, selling coffee, and then guys from one gang come in telling you not to sell coffee to the guys from their rival gang or they will shoot you. Can you feel the terror? Telling health care staff to not treat possible, real or would-be insurgents is pretty much the same, after all none of them belong to any of the two rivalling gangs.

Thou shall respect the neutrality of civilians and civilian entities, which means that they are allowed to be impartial or non-allied with or committed to either party or viewpoint in a conflict. This includes that they are allowed to sit on the fence between the good and the bad guys, hoping to be left alone. (Unfortunately Afghanistan, as most war zones, is not black and white; it is rather shades of greys.) Neutrality is real and should be respected, at all times. People should not be forced to choose a side, even if this would make it so much easier for the good as well as the bad guys fighting each other.

And here is another one, especially meant for the insurgency: Thou shall not use civilian populations as shields. And civilians remain civilians when they are standing or driving next to a NATO convoy which you might consider a legitimate target, or work for the Afghan government but not the Afghan National Security Forces. (Note to self: translate this into Pashtu so the Taleban get it.)

In closing, a key lesson learned by a former Chief of Staff of the Nicaraguan National Army: ‘Civil wars do not take place with the approval and participation of the majority of the citizens. ….. Indeed no matter how intractable a conflict, there will always be some sectors of the population that do not want war and most people will not want to become involved.’

As international military actors, including the trainers and mentors, are here to build the capacity of Afghan National Security Forces (ANSF), let’s ensure they also learn this lesson and don’t repeat some of the more misguided things that some soldiers, who have possibly forgotten about the Geneva Conventions and Common Article 3, come up with. Else ANSF will follow poor suit, and how would that look like? .

Many of us, including much of the Afghan population, simply would like the so called good guys to act a bit more like real good guys, so it is easier for us to distinguish them from the so called bad guys, who are working very hard to keep this label for themselves by violating pretty much everything that is in the Geneva Conventions. Let the Taleban keep the upper hand on being bad, this is not a contest worth fighting.

Come on Special Forces, be special, stick to the Geneva Conventions — at minimum Common Article 3. Above all: Don’t be like the Taleban. Keep your gloves on! That’s for now really all I want for the New Year, as peace seems a bit out of reach.

Tags:

Human Rights NATO Justice

Authors:

Susanne Schmeidl

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