Home
International humanitarian law: extract from ICRC Annual Report 2009
19-05-2010 Annual Report
The protection of war victims is largely dependent on respect for IHL. In accordance with the mandate conferred upon it by the international community, the ICRC strives to promote compliance with IHL and to contribute to its development.
The ICRC’s capacity to protect and assist people affected by armed conflicts and other situations of violence is substantially enhanced by the 84 headquarters agreements it has signed with the governments of the countries in which it works; the privileges and immunities thus conferred on the ICRC, including its testimonial immunity, enable the organization and its staff to work in an entirely independent manner. With 13 other States or competent entities, the organization’s privileges and immunities are established by legislation or other arrangements.
The Legal Division provided legal advice on a daily basis to the ICRC’s field delegations, notably regarding confidential representations reminding those involved in armed conflicts and other situations of violence of their obligations under IHL and other relevant bodies of law, and regarding the legal frameworks governing the situations of violence in which the ICRC is carrying out its activities.
If IHL is to be fully respected, it is of paramount importance that States accede to the relevant international instruments and adopt national measures to implement IHL norms in their domestic law and practice. Such measures touch upon many different areas, such as the repression of war crimes, the use and protection of the distinctive emblems of the red cross, red cres cent and red crystal, and the prohibition of or restrictions on the production and use of certain weapons.
Throughout 2009, the ICRC’s Advisory Service on IHL engaged in active dialogue with national authorities worldwide in order to promote accession to IHL treaties and their domestic implementation. Governments in many countries thus received the necessary legal and technical advice to develop domestic legislation.
The ICRC also organized, or contributed to, a range of national and regional conferences, seminars and workshops in relation to IHL and its incorporation into domestic law. These included events in Amman (Jordan), Bangkok (Thailand), Beirut (Lebanon),Cairo (Egypt), Kathmandu (Nepal), Lima (Peru), London (United Kingdom of Great Britain and Northern Ireland), New Delhi (India), Mexico City (Mexico), Pretoria (South Africa), Rabat (Morocco), Santiago de Chile (Chile), St Petersburg (Russian Federation), Tehran (Islamic Republic of Iran) and Yaoundé (Cameroon).
In order to assist States further in their implementation of IHL treaties, experts convened in Nairobi (Kenya) in February at a meeting jointly organized by the ICRC and the United Nations Environment Programme (UNEP) to discuss the implementation of legislation to protect the environment in armed conflicts. They examined guidelines with a view to improving domestic implementation of international treaty law and customary rules on environmental protection. At another expert meeting on children in armed conflict held in Geneva (Switzerland) in December, 45 participants worked on developing guiding principles for national implementation of the law relating to children associated with armed forces or armed groups.
With the ICRC’s help and encouragement, States pursued their endeavours to establish interministerial committees entrusted with the national implementation of IHL. In 2009, Mexico and Switzerland created a national commit tee, bringing the total number worldwide to 93. In order to promote dialogue and cooperation among national IHL committees, the ICRC held regional meetings of such committees in different parts of the world and continued to support their activities. At a meeting of Commonwealth national IHL committees organized by the ICRC in New Delhi in October 2009, governments were encouraged to draw on their national committees to strengthen their capacities, commitment and activities regarding IHL, discussed IHL developments and shared experiences and information on the domestic implementation of treaties across the Commonwealth.
The ICRC also maintained an active dialogue with international and regional organizations such as the Commonwealth, the League of Arab States, the Organization of American States, the Council of Europe, the European Union, the Inter-Parliamentary Union and the Inter-Parliamentary Assembly of the Commonwealth of Independent States. It took part in meetings of States party to various IHL treaties and related instruments such as the Mine Ban Convention, the Hague Convention on Cultural Property and its Second Protocol of 1999, the Convention on Certain Conventional Weapons and the Rome Statute.
The year was marked by the following progress in State participation in IHL treaties:
1 State (Afghanistan) acceded to Additional Protocol I
1 State (Afghanistan) acceded to Additional Protocol II
15 States (Australia, Austria, Brazil, Chile, Dominican Republic, Finland, France, Germany, Greece, Guyana, Italy, Kazakhstan, Nicaragua, Poland, United Kingdom of Great Britain and Northern Ireland) ratified or acceded to Additional Protocol III
1 State (United States of America) ratified the HagueConvention on Cultural Property
5 States (Bosn ia and Herzegovina, Dominican Republic,Germany, Italy, Jordan) ratified or acceded to the SecondProtocol to the Hague Convention on Cultural Property
4 States (Algeria, Mauritius, Netherlands, South Africa)ratified or acceded to the Optional Protocol to theConvention on the Rights of the Child
2 States (Chile, Czech Republic) ratified the Rome Statute
1 State (Costa Rica) acceded to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity
1 State (Costa Rica) acceded to the Protocol for theProhibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare
3 States (Bahamas, Dominican Republic, Iraq) became party to the Chemical Weapons Convention
3 States (Kazakhstan, Qatar, United Arab Emirates) became party to the Convention on Certain Conventional Weapons; 7 States (Colombia, Costa Rica, Ecuador, Georgia, Guatemala, Tunisia, United States of America) became party to the revised Framework Convention
3 States (Kazakhstan, Qatar, United Arab Emirates) became party to Protocol I
- 1 State (Qatar) became party to Protocol II
- 1 State (Georgia) became party to Amended Protocol II
- 4 States (Kazakhstan, Qatar, United Arab Emirates,United States of America) became party to Protocol III
- 2 States (Kazakhstan, United States of America) becameparty to Protocol IV
- 11 States (Canada, Chile, Costa Rica, Ecuador, Latvia, Mali, Pakistan, Peru, Qatar, United Arab Emirates, United States of America) became party to Protocol V
20 States (Albania, Austria, Burundi, Croatia, France, Germany, Japan, Lao People’s Democratic Republic, Luxembourg, Malawi, Malta, Mexico, Nicaragua, Niger, San Marino , Slovenia, Spain, Former Yugoslav Republic of Macedonia, Uruguay, Zambia) ratified the Convention on Cluster Munitions
Throughout 2009, the Legal Division attended numerous conferences, seminars and courses and provided States, intergovernmental organizations, NGOs and other interested bodies with expertise on a variety of IHL-related topics. These activities helped promote and ensure compliance with existing treaty and customary rules of IHL and highlighted their continued relevance to contemporary armed conflicts. They also helped clarify the legal system applicable in different situations and the precise content of IHL key provisions, identify current challenges to IHL as well as possibilities for further clarification and development of the law, and explain the specific role of the ICRC.
60th anniversary of the 1949 Geneva Conventions
On 12 August 2009, the ICRC commemorated the 60th anniversary of the signing of the Geneva Conventions in 1949 with a speech by the president to the diplomatic and academic community in Geneva. Today, the four Geneva Conventions enjoy universal adherence and continue to constitute the bedrock of IHL. Their relevance in contemporary armed conflicts is undeniable. Throughout the year, the Legal Division participated in numerous conferences organized to mark the anniversary, including in Brussels (Belgium), Stockholm (Sweden), London, Jerusalem (Israel) and St Petersburg. In addition, the Swiss Federal Department of Foreign Affairs and the ICRC organized a major international conference in Geneva on 9 and 10 November. Beyond celebrating the 60th anniversary, the conference provided a forum for experts to look at the decades ahead and study the current relevance of IHL with resp ect to new threats, new actors and new means and methods of warfare. It also examined existing instruments for the implementation of IHL and their potential adaptation to current realities and challenges.
Study on customary international humanitarian law
The Legal Division continued to promote its study on customary international humanitarian law. Workshops and round-tables on customary IHL were organized in Bad Mergentheim (Germany) with the German Red Cross, in Beirut for Arabic IHL experts and in Cambridge (United Kingdom of Great Britain and Northern Ireland) with the British Red Cross and the Lauterpacht Centre for International Law among others. In addition, a follow-up conference to the 2008 conference was held at Galatasaray University in Istanbul (Turkey). In 2009, the study continued to be used as a reference by courts, rapporteurs, government lawyers, academics and organizations, which should contribute to strengthening the protection of conflict victims over time.
The British Red Cross and the ICRC continued their joint project to update the collection of the practice of States and non-State actors in the field of IHL underlying the study. The collection will be published online as a free-access database, to be launched in 2010 and updated regularly.
Interpretive guidance on direct participation in hostilities
In 2009, the ICRC published Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. Based on six years of expert consultation and research, the Interpretive Guidance sets out the ICRC’s recommendations as to how existing IHL relating to civilian participation in hostilities should be interpreted in contemporary armed conflicts. Its primary purpose is to enhance the civilia n population’s protection against erroneous or arbitrary targeting. It does so by clarifying the generic distinction between civilians and combatants, as well as between civilians who are and those who are not “directly participating in hostilities”.
Throughout 2009, selected national and multilateral authorities and their armed forces in the field familiarized themselves with the Interpretive Guidance as part of their dialogue with the ICRC, as did many political, military, judicial, humanitarian and academic target groups around the world.
Legal framework applicable in non-international armed conflicts
In 2009, the Legal Division carried out a comprehensive internal study on the legal framework applicable in non-international armed conflicts. The study aimed primarily to identify the main humanitarian concerns arising in contemporary non-international armed conflicts, including factors potentially affecting the parties’ compliance with IHL. Its second objective was to assess to what extent existing treaty and customary law provides adequate legal responses. The study offers an analysis of 36 specific issues, covering such areas as: the notion of non-international armed conflict; the protection of persons deprived of their freedom; the rules applicable to the conduct of hostilities; the prohibition of or limitation on the use of certain weapons; the protection of certain categories of persons, such as women, children and IDPs; protection of the natural environment; humanitarian assistance; and existing international mechanisms aimed at improving respect for IHL.
Based on the study’s conclusions, proposals were being prepared on how to move forward in 2010, in terms of both substance and procedure. The aim is to clarify or further develop specific aspects of the law in order to strengthen the protection of persons and objects affected by non-international armed conflicts.
Cluster munitions and the Mine Ban Convention
In addition to its outreach efforts among signatory and non-signatory States to work for the rapid entry into force of the new Convention on Cluster Munitions, the ICRC continued to provide its legal and humanitarian expertise during the negotiations on cluster munitions among the States party to the Convention on Certain Conventional Weapons, which have yet to reach an agreement on the matter.
The ICRC was closely involved in preparations for the Second Review Conference of the States Parties to the Convention on the Prohibition of the Use, Stockpiling, Production andTransfer of Anti-personnel Mines and on Their Destruction, which was held in Cartagena, Colombia, in December 2009. The Conference adopted a high-level political declaration, review and action plan with input from the ICRC, which provided detailed comments on successive drafts. As in 2008, the ICRC drew on its legal and field expertise to help analyse requests for extension of clearance deadlines, while focusing on the core humanitarian objectives of the Convention. It also pursued its efforts, both bilaterally and internationally, to ensure that the three States that had been unable to destroy anti-personnel mine stockpiles within their deadlines would do so in the near future. An expert meeting jointly organized by the Norwegian Red Cross and the ICRC adopted an Appeal to the Review Conference and a set of recommendations for States and supporting organizations on how to improve future implementation of victim assistance obligations under the Mine Ban Convention, as well as under the Convention on Cluster Munitions and the Protocol on Explosive Remnants of War. The outcome of all these efforts was reflected in the final results of the Review Conference.
Controlling arms availability through responsible arms transfers
In 2009, the ICRC continued to promote stricter controls on arms availability through the implementation of national and regional arms transfer instruments and the adoption of a global, legally binding arms trade treaty. UN discussions on an arms trade treaty drew on the ICRC’s views on the objective, scope and parameters for such an instrument, as did regional seminars in Addis Ababa (Ethiopia), Amman, Dakar (Senegal), Kuala Lumpur (Malaysia) and Mexico City (Mexico) organized by the European Union and the UN Institute for Disarmament Research in cooperation with the host countries.
Occupation and other forms of administration of foreign territory
The ICRC project on occupation law completed its external consultations by organizing a third and last meeting with some 15 legal experts to tackle the issue of the use of force in occupied territory. The participants identified the relevant legal frameworks and clarified how they relate to each other. They also detailed the circumstances and conditions under which the use of force would fall under the law enforcement or conduct of hostilities paradigms.
The ICRC also made substantial progress towards implementing the second project phase by drafting a detailed report summarizing the main findings of the three expert meetings convened in 2008 and 2009. The report will be published in 2010.
Private military and security companies
The operations of private military and security companies in situations of armed conflict continued to attract public and media attention. Such companies and the States responsible f or their actions were briefed on their obligations under IHL through continuous dialogue with the ICRC, and States were encouraged to tackle questions relating to private military and security companies using domestic regulation.
Various events that addressed the legal issues raised did so with the participation of the ICRC, which continuously promoted and widely shared the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict . The document was agreed in 2008 by the 17 governments involved in the three-year intergovernmental process jointly conducted by the Swiss Federal Department of Foreign Affairs and the ICRC. By the end of 2009, another 17 States had expressed their support for the document, bringing the number of supporting States to 34. The general public was able to learn about the Montreux Document from a brochure published by the Federal Department of Foreign Affairs and the ICRC.
Air and missile warfare
In 2009, the ICRC continued to be actively involved in the IHL in Air and Missile Warfare project of the Harvard Program on Humanitarian Policy and Conflict Research. The Legal Division attended the final expert meeting in May and provided substantial comments on the various drafts of a manual restating the law applicable in air and missile warfare. The publication of the manual in 2010 will conclude the project.
Other matters
Many other key issues received the Legal Division’s special attention. These included, for example, the protection of women and children in armed conflicts, humanitarian assistance, the protection of journalists, multinational forces and cyber-a ttacks.
The work of the UN General Assembly during its 64th Session was closely followed by the ICRC, particularly legal developments on issues such as targeted killings, “terrorism” torture and IDPs. The XXth Annual Informal Meeting of Legal Advisers of Ministries of Foreign Affairs listened to an ICRC statement on respect for IHL and the role of the UN Security Council.
The ICRC kept abreast of developments by observing the deliberations of the Human Rights Council and its Universal Periodic Review system year-round, especially those related to the protection of human rights of civilians in armed conflict, and by participating in an OHCHR expert meeting.
International initiatives to ensure better protection of IDPs were bolstered by contributions from the Legal Division. These included the African Union Convention on IDPs, negotiated with the ICRC’s participation and adopted in October, and various key documents, most notably the ICRC report entitled Internal Displacement in Armed Conflict – Facing up to the challenges and the Movement policy on internal displacement and its commentary, both published in November.
-
Share
|
Back to top
