Someone recently asked me whether, in the wake of the Richard Goldstone’s qualifications of his infamous report, the UN was losing its credibility to issue fact-finding studies on humanitarian law violations.
In my view, no matter how “credibly” a study is conducted, it is vulnerable to such critiques under the existing system – in which all humanitarian law reporting is partial, ad hoc and selective. That’s because unlike other international regimes, the Geneva Conventions comes with no official monitoring body.
At Foreign Affairs, I discuss this at more length and argue that it could and should be changed:
When the conventions were created, they were meant to be self-enforcing: signatories pledged that their own troops would follow the rules and agreed to bear primary responsibility for monitoring and punishing violations. But the treaties establish no independent organization to monitor compliance with the Geneva Conventions in real time, investigate alleged crimes after the fact, or produce even-handed analyses of each actor’s conduct measured against baseline humanitarian standards set by the treaties.
Without an independent monitoring mechanism capable of making informed, systematic, nonpartisan claims about what has happened on the ground, it is all too easy for countries to exploit the gray areas in humanitarian law. Consider drone attacks in Pakistan, which are criticized for having an undue impact on civilians. No independent body is responsible for systematically counting how many civilian casualties they cause. Nor is there any international institution to aggregate other relevant numbers — for example, civilian casualties from non-aerial attacks worldwide — for comparison. Instead, journalists and think tanks produce wildly conflicting estimates, relying on non-comparable sources and talking past one another. The discussion over drone use is thus stalemated, and it is left to the allegedly offending government to determine whether, in its estimation, its actions are justified.
An independent, multilateral monitoring agency tied to the Geneva Conventions could begin to fill this reporting gap. Such an organization would ultimately need to be designed by states through a negotiated consensus, but it is not too hard to envision what it could look like. Its role could be not to judge or condemn but to report; its data, a gold standard for courts, governments, NGOs, and scholars. The agency could be staffed not by lawyers and advocates but forensic specialists, statisticians, social scientists, and criminal investigators. It could include a mechanism for receiving and investigating confidential reports from soldiers who witnessed war law violations, filling a serious gap in the Geneva regime by formalizing war-crimes whistle-blowing. By limiting its mandate to objective reporting and requiring it to conduct rigorous and systematic investigations in every situation that meets a legally defined threshold for armed conflict, states would have less reason to fault the results of its investigations.
[cross-posted at Lawyers, Guns and Money]