International law aims to stop war altogether, and IHL aims to prevent and reduce the worst effects of war if it still happens. As such, with the brutality of wars that we see on our screens today, it is easy to think that IHL is bad law. But the law is one thing and its compliance is another: even the best of laws becomes meaningless if it is abused or violated. This is the problem that IHL faces.
In reality, IHL is good law and most widely accepted. The Geneva Conventions are now universally ratified; agreed by every State in the world today. It upholds fundamental values and has deep roots in the principles of humanity in war common across religions and cultures since time immemorial. Most States, including fragile ones, and non-state armed groups today actively respect IHL. On the ground, IHL has saved lives, reunited families separated by war, enabled dignified burial for the war dead, and eased post-war reconciliation. Of course, we don’t see all this in the headlines: legal compliance just isn’t clickbait and what doesn’t shock hardly sells news.
The drafters of the Geneva Conventions themselves were war survivors, who saw and experienced firsthand the horrors particularly the Second World War, from genocide and torture to sexual violence and destruction of cities. This, however, doesn’t mean that the Geneva Conventions are outdated. States have now agreed that IHL remains applicable to cyber weapons used in armed conflicts. In 2024 alone, the International Court of Justice (ICJ) aka the World Court, in at least three different decisions reaffirmed the application of the Geneva Conventions in the context of Gaza and Israel-occupied Palestinian Territories.
IHL legally binds all parties to the conflict, state and non-state; no matter who, how or why the conflict started. The Geneva Conventions protects those who do not and no longer fight in the hostilities. The First Geneva Convention protects the wounded and sick on the battlefield. The Second Geneva Convention ensures the treatment and care for wounded, sick and shipwrecked combatants at sea. The Third Geneva Convention provides for humane treatment and conditions for prisoners of war. The Fourth Geneva Convention requires the protection and care of civilians, including those detained by enemy forces and living under military occupation. Article 3 common to all four Geneva Conventions sets the specific minimum standards for the protection of victims in non-international armed conflicts (i.e. with/among armed groups).
Compliance of the Geneva Conventions begins in peacetime with implementation. Fire drills cannot be done in a fire: implementation is simply challenging in the chaos of war. Common Article 1 of the Geneva Conventions requires States to both respect and ensure respect for the Geneva Conventions. ‘Ensuring respect’ here not only means that States must work together to stop violations, to implement the law, and to hold those responsible for violations to account. Within their own jurisdictions, States also need to ensure that everyone comply with the Geneva Conventions by:
• adopting the necessary laws and policies so that it is domestically operational and enforceable
• integrating the Geneva Conventions into military doctrines and training
• raising awareness and spreading knowledge on the Geneva Conventions to the wider population, including through translation in the national or official language(s)
From here we can see that civil-military coordination and multistakeholder cooperation underpin implementation. These efforts should not only involve the defence, healthcare and judicial/legal sectors, but also other sectors critical to our survival including finance, environment, and technology. Because respect and implementation of the law (or lack of it) would affect us all in times of conflict, it is also important that as many people as possible - including our aunties, uncles and adiks – know about the basics of Geneva Conventions.
Since becoming state party in 1962, Malaysia has played an active role in promoting and applying the Geneva Conventions, at home and abroad. Malaysia is consistently ranked as one of the top 25 peacekeeping troop contributors in the world, having sent over 40,000 members on 38 UN missions since 1960. On the diplomatic front, Malaysia has consistently called for respect of IHL in conflicts including the Fourth Geneva Convention in occupied Palestine. Malaysia has also contributed generously in humanitarian aid for victims of wars such as in Afghanistan, Syria, Yemen, and Ukraine.
At the domestic level, the Malaysian National IHL Committee (Jawatankuasa Undang-Undang Kemanusiaan Malaysia, JUKAM) was established in 2007 as a focal point for effective IHL implementation. Malaysia’s commitment to IHL is also reflected in the national Defence White Paper (2020-30). In 2022, the IHL Handbook for Malaysian Parliamentarians was launched by then Dewan Rakyat Speaker in Parliament with the aim of spreading IHL knowledge to the grassroots. This handbook, now freely available online in BM and English, is published by the International Committee of the Red Cross and Malaysian Red Crescent Society (in line with their legal mandates).
Now, the risks of conflict in our own region have accelerated. With the recent developments around the South China Sea, Taiwan, and US-China relations, these risks could play out not just at sea but also in cyberspace and other domains, using weapons ranging from the conventional to the latest. The effects of existing conflicts nearby such as in Myanmar have long been felt, and threats like the climate crisis could further complicate response. As such, there is an urgent need to update the Geneva Conventions Act 1962 and other laws implementing the Geneva Conventions in Malaysia - not only as a matter of legal obligation, but also as crisis preparedness and preventing violations.
The Geneva Conventions Act 1962 has not been reviewed since it first came into force. A review of the Act can begin with enhancing the protection of relevant emblems and impartial humanitarian organisations. Malaysia should also seriously consider joining some 170 countries that include neighbours Philippines, Singapore, Cambodia and Brunei in becoming party to the three Additional Protocols to the Geneva Conventions. The Additional Protocols among others expand the scope of protection for victims of both types of armed conflicts and legal assessment for the latest weapons.
After 75 years of the Geneva Conventions, and 62 years of Malaysia being its state party, it is time to reaffirm our commitment to its compliance, including by reviewing the Geneva Conventions Act. To prevent and reduce human suffering in the conflicts today and in future, the letter and humanitarian spirit of the Geneva Conventions must be upheld and prioritised. There is hardly an alternative: laws of war that keep getting broken and not acted upon are effectively no law, and without law there is only anarchy and inhumanity.
* Aisya Abdul Rahman is a Senior Law Lecturer at the University of Malaya. She is a former Legal Adviser at the International Committee of the Red Cross and has practiced at the Malaysian Bar. She has technically advised and supported decisionmakers, policymakers and stakeholders in understanding and applying international and domestic law for over a decade.
** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.
