Humanitarian law and human rights in the legal arsenal of the ICRC
Graduate Institute of International Studies, Geneva, 16 March 1995. Statement by Dr. Cornelio Sommaruga, President of the International Committee of the Red Cross
Nineteen forty-five - nineteen ninety-five. This year marks the 50th anniversary of events which may be either as horrific or as heralding the dawn of a better world: the liberation of the Nazi extermination camps, the use of nuclear weapons in the bombing of Hiroshima and Nagasaki, but also the end of the Second World War and the founding of the United Nations Organization, which in its Charter was assigned the task of achieving international cooperation " in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. "
Aware of the disasters of the 1939-1945 World War and pressed by the International Committee of the Red Cross, the States, four years later, were to adopt the four Geneva Conventions of 1949, which already indicated a certain affinity of purpose between international human rights law and international humanitarian law.
* * *
I have been asked to talk to you about international humanitarian law and human rights law in relation to the ICRC's legal arsenal. It would seem appropriate, therefore, to introduce you to the ICRC's work first in the field of international humanitarian law, then in that of human rights. At the end of my talk, I shall be looking at the differences between these two areas of law, taking as a basis, at least to some extent, international practice in this regard.
The ICRC and international humanitarian law
The ICRC's role in the field of international humanitarian law may be expressed by means of three key words: development, promotion and implementation.
Let us look first at the ICRC's action in regard to the drafting of rules.
There is no doubt that the ICRC's contribution to the development of international humanitarian law has been absolutely decisive. The institution's very first initiative, in fact, was legislative in nature, since one year after its creation it succeeded in having the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field adopted. The ICRC's efforts to ensure that the law adapts to changes in methods and means of combat and provides responses to the new types of human suffering they generate have never ceased. The diplomatic conferences of 1906, 1929 and 1949, and the one held from 1974 to 1977, are so many landmarks in the history of the ICRC and in that of humanitarian law and international law in general.
The Conference on the Protection of War Victims, which was held in Geneva in 1993 by the Swiss Government on ICRC's initiative, was part of the same process, even though, in response to the needs of the times, it dealt more with the implementation of existing law than with the establishment of new rules. The Intergovernmental Group of Experts, which met in January of this year as a follow-up to that Conference, proposed a series of practical measures for improving respect for humanitarian law, including the following:
- preparation by the ICRC of a report on the customary rules of international humanitarian law applicable to international and non-international armed conflicts;
- the strengthening of the I CRC's ability to provide advisory services to States in their efforts to implement and disseminate international humanitarian law;
- the establishment by the ICRC of guidelines on the exchange of information concerning the implementation and dissemination of international humanitarian law;
- the convening, by the Depositary State, of regular meetings to consider general problems related to the application of the law.
All the recommendations adopted by the Intergovernmental Group of Experts will be submitted to the International Conference of the Red Cross and Red Crescent, which is due to be held at the end of this year.
Weapons are one area in urgent need of new rules. In this respect, the ICRC plays an extremely active role, though at the stage which precedes or runs parallel to the actual legislative process. Several meetings of experts, invited in a personal capacity, have thus been organized by the ICRC in recent years to consider in particular the effects of laser weapons and landmines. The reports produced by the meetings were submitted to the intergovernmental working group in charge of preparing the revision of the 1980 United Nation Weapons Convention whose meetings we attended as -very active- observers. At the same time, in view of the immense suffering caused among the civilian population by anti-personnel mines, the ICRC has launched a campaign calling for their complete prohibition. Let us hope that our appeals will be successful in convincing States to adopt rules which are as restrictive as possible with regard to the use of such dreadful weapons as anti-personnel mines.
The subject-matter of the law governing war at sea has lately been updated, under the aegis of the International Institute of Humanitarian Law in San Remo, the objective being to encourage the establishment of customary law. One of our own experts has taken the leading role in the work, in order to ensure that due account is taken of the principles of humanitarian law. So far, however, no real set of rules has emerged in the area of war at sea.
What about the promotion of humanitarian law?
I would identify two main aspects of ICRC activities which are aimed at promoting humanitarian law. On the one hand, we encourage States which have not yet done so to become party to the 1977 Additional Protocols. May I remind you in this respect that 135 States are party to Protocol I and 125 to Protocol II, while 185 States have acceded to the Geneva Conventions. On the other hand, we must try to ensure that States fulfil their commitment to make humanitarian law known to all those who may be called upon to apply it. When the need arises -as it does in most of the States covered by ICRC delegations- we must make sure our advise and help is available.
I must admit that spreading knowledge of humanitarian law is an enormous challenge for the ICRC. With the current proliferation of non-international armed conflicts we have to identify the new authorities and, generally speaking, achieve much broader coverage than before of the civilian population. And we must also make sure that the rules of humanitarian law are acceptable in all cultures. The advisory services which the ICRC would have to provide according to the recommendations of the group of experts which met in January could give a fresh impetus to these activities, especially since the ICRC has already launched some interesting new experiments in a number of countries.
As to ICRC operational activities humanitarian law offers specific tools enabling to fulfil the task of protecting and assisting the victims of armed conflict. This means that the ICRC plays a decisive and unique role with regard to the implementation of humanitarian law.
In the first place, the ICRC is entitled to visit prisoners of war protected by the Third Geneva Convention and civilians protected by the Fourth Convention, in order to ensure that such persons are being treated in conformity with the relevant instruments. These prerogatives apply in the event of international armed conflicts. You may say that these kinds of conflicts are few and far between at the present time. And yet the ICRC has engaged and continues to engage in activities based on the four Geneva Conventions of 1949 in a number of countries, in particular in the Middle East, without forgetting the very recent conflict between Ecuador and Peru. In concrete terms, in 1994 the ICRC carried out 442 visits in 46 places of detention in Israel and in the occupied territories, and in the same context arranged for the exchange of about 20,000 Red Cross messages; in Iraq, it completed a water and sanitation programme worth about 5 million Swiss francs; and it transmitted to Iran and Iraq, to the States party to the Geneva Conventions which are members of the Security Council and to other bodies a memorandum calling in particular for compliance with the provisions of humanitarian law concerning the repatriation of prisoners of war captured during the Iran/Iraq war. It is worth noting, in this connection, that Iran has still not supplied the ICRC with information concerning some 19,000 prisoners or war, whose identity is known to the institution and who have not been repatriated.
Most ICRC delegations, however, operate in countries affected by non-international armed conflicts. In this case, their activities are based on Article 3 common to the four Geneva Conventions, a mini-convention in itself which, for internal armed conflicts, provides a list of basic guarantees which must be respected in all circumstances, and confers a right of initiative on an impartial humanitarian body such as the ICRC. Yet the number of operations the ICRC undertakes on the basis of this right of initiative is inver sely proportional to the legal scope of a provision which merely entitles it to offer its services. Let me give you just a few examples. In Rwanda, between April and September 1994, the ICRC distributed 47,000 tonnes of food and other basic necessities, handled about 15,000 Red Cross messages, allowing separated family members to keep in touch, and visited about 5,500 detainees. With regard to Chechnya, the ICRC, which began working there in mid-December of last year, launched an appeal for 55 million Swiss francs on 19 January in order to finance several programmes over the next six months, including regular visits to and registration of all prisoners on both sides, the supply of food and material aid to 400,000 displaced persons, provision of assistance to persons returning to their homes by distributing tarpaulins, candles and jerrycans, and the setting-up of a system of Red Cross messages to restore family links. But all these activities were already taking place at the end of last year: the ICRC indeed acts in favour of victims without delay, without waiting to having got the financing for a specific operation.
So far, I have spoken to you only about the practical action taken in the operational area by some 400 delegates and 600 other staff working in the field, in other words, about the tasks which contribute directly towards alleviating the suffering of the victims of armed conflicts. Under the terms of the Statutes of the International Red Cross and Red Crescent Movement, however, the States also give the ICRC a mandate to monitor the faithful application of international humanitarian law. The ICRC is therefore not only the good Samaritan; it also acts as the victims'advocate -but not as a judge- to ensure that they are treated in accordance with humanitarian law. Whether in Bosnia-Herzegovina, Sri Lanka, Chechnya or elsewhere, the ICRC is constantly making representations to the authorities to point out " law has a place in war " , that war is a situ ation which remains governed by law, especially international law, and to ensure that the authorities do not treat a person who is not fighting them as an enemy, and that they treat the enemy humanely, ones he his hors de combat , even if he has been fighting them previously. In principle these representations remain confidential, although the ICRC may, under certain conditions and if justified in the interest of the victims, appeal to public opinion. Owing to the media spotlight focused, at least temporarily on many of the armed conflicts now going on, the ICRC is compelled to do this with increasing frequency.
You are probably wondering whether we are not sometimes overwhelmed with discouragement at the pitiful state of respect for humanitarian law!
First, I would like to say that not all situations can be compared with that of Rwanda, where genocide and armed conflict fed on each other following the events of 6 April 1994. Moreover, we feel that nothing would be more dangerous than to give up demanding a minimum of respect for humanitarian rules, regardless of the situation. On the other hand, in cases where the ICRC is faced with a deliberate intention to disregard humanitarian law, its means are limited. The international community must then take over.
It is up to States Parties to the Geneva Conventions, that have a co-responsibiltiy in ensuring respect of international humanitarian law to take practical measures if needed under the United Nations Charter; I can only support the UN Secretary General when he claims a well-trained multinational rapid intervention force at its disposal for operations designed to ensure law, order and security and to stop flagrant violations of humanitarian and human rights law.
The ICRC and human rights
I shou ld now like to say a word about the relationship between the ICRC and human rights.
As you are aware, the ICRC works in behalf of the victims of armed conflict, on the basis of international humanitarian law. Does this mean to say that human rights lie completely outside the ICRC's scope of action? The answer to this is not quite straightforward, and must be formulated taking into account the three facets of the ICRC's activities which I identified earlier, i.e. the development of the law, its promotion and its implementation.
The interaction between international humanitarian law and international human rights law is a fascinating subject, but one which requires the approach specialists. There is no doubt that international human rights law has helped the development of humanitarian law, especially in the area of judicial guarantees. On the other hand, humanitarian law, which by definition applies to situations of extreme political tension, should help to identify or even to broaden the hard core of international human rights law.
The Declaration of Minimum Humanitarian Standards, known also as the Turku Declaration, illustrates this point. This Declaration, prepared by a group of experts which included an ICRC legal expert, is not restricted to a particular type of situation. In this sense, it forms part of international human rights law, and was in fact circulated in the Sub-Commission on Prevention of Discrimination and the Protection of Minorities, which passed a resolution last year submitting it for the attention of the Commission on Human Rights. From another standpoint, however, the Declaration was mainly intended as a solution to problems brought about by situations of internal violence and contains several clauses inspired by humanitarian law, to which it is therefore closely related.
Lastly, if the term " human rights " is understood to be further removed in meaning from positive law, and hence less technical, than the term " international human rights law " , it may be said that international humanitarian law protects human rights in situations of armed conflict. This means that any development of humanitarian law would have the effect of strengthening the protection of human rights in such situations. Of course, since the setting is always one of armed conflict, the human rights involved are only those deemed to be fundamental.
Does the ICRC help to promote international human rights law?
You will not be surprised to hear that the ICRC does not engage in specific actions to promote the participation of States in the instruments of international human rights law. On the other hand, one may consider that the ICRC is contributing to the dissemination of international human rights law, whenever, for instance, it explains the complementarity between that law and international humanitarian law, or whenever it points out the similarity of content between some of the rules of humanitarian law and some belonging to international human rights law. In this case, necessarily, the message conveyed by the ICRC's dissemination delegates will be chiefly concerned with the hard core of international human rights law.
Lastly, referring to the broader terminology I mentioned earlier, it is possible to consider the dissemination of international humanitarian law as a form of dissemination of the human rights which are protected in situations of armed conflict.
What is the relationship between the actual operational activity of the ICRC and human rights? Does this activity contribute towards respect for human rights?
Here again, the concepts involved have to be clearly identified.
Any action taken by the ICRC with the aim of ensuring that the parties to a conflict comply with the obligations imposed by humanitarian law can obviously be considered as action promoting respect for the human rights that are protected in situations of armed conflict. Similarly, the material assistance provided by our delegates to the victims of armed conflict may be considered as upholding certain human rights, such as the right to food or the right to health. It is also true to say, however, that the ICRC will always invoke international humanitarian law whenever it is applicable. Therefore, going back to the title of my talk, I would say that " in the operational field taken in the strict sense of the term, international human rights law is not part of the legal arsenal of the ICRC " .
And yet, the ICRC is also engaged in activities in situations which are not covered by international humanitarian law, in other words in situations which are not armed conflicts.
Indeed, the Statutes of the International Red Cross and Red Crescent Movement authorize the ICRC to offer its services during internal disturbances and in other situations of internal violence. I should like to give you the definition of internal disturbances recently drawn up by the ICRC on the basis of discussions and practice, which began in the 1970s and with which governmental experts have been associated:
" Internal disturbances are marked by serious disruption of domestic order resulting from acts of violence which do not, however, have the characteristics of armed conflict. They encompass, for example, riots by which individuals or groups of individuals openly express their opposition, their discontent or their demands, or even isolated and sporadic acts of violence. They may take the form of fighting between different factions or against the power in place.
Other types of situation may involve political or social tension which does not degenerate into internal disturbances, but which may cause similar suffering. "
In such cases the ICRC may, if the authorities agree, undertake activities which will not differ fundamentally from those it undertakes in situations of armed conflict. Why is this? Because ICRC visits to persons deprived of their freedom, the provision of material assistance to population groups whose needs can no longer be met through traditional channels, the restoration of family links between people who have been displaced on account of the events, or representations made with a view to limiting attacks on the life or physical integrity of persons affected by internal violence can, as they do in armed conflicts, relieve the most acute human suffering caused by such situations.
The ICRC's activities in situations which are not within the purview of humanitarian law may undoubtedly be seen as safeguarding some human rights held to be fundamental. A more significant point, however, appears to be the fact that, in its contacts with the authorities, the ICRC bases its arguments on the principle of humanity, although the occasional reference to human rights instruments is not ruled out.
The conclusion one may draw is that the ICRC as an institution does not make representations to States on the basis of international human rights law.
The difference between international humanitarian law and international human rights law
All these considerations bring us in the end to the central issue of this meeting, namely, what in essence is the difference between international humanitarian law and international human rights law?
For my part, I wonder whether the answer does not lie in the types of situation governed by these two branches of international law. The fact that internationa l humanitarian law governs situations marked by political, international or internal strife gives rise to two main effects, which are interlinked. On the one hand, the law that applies in such situations must clearly state what obligations must be respected by belligerents. On the other hand, the way in which the application of the relevant rules is monitored must be adapted to such situations.
Nowadays, owing to the proliferation of internal armed conflicts, the system of international human rights law, which is made up of rules coupled to one or more mechanisms for monitoring their application, is tending to come closer to that of international humanitarian law. Thus many of the situations which are dealt with by a body such as the Commission on Human Rights call for the application of humanitarian rules. On the other hand, the quasi judicial means of control instituted by international human rights law have been supplemented by observations in the field, visits to places of detention, the deployment of human rights monitors using working methods often modelled on the ICRC's, and so on.
You may be wondering what the ICRC thinks of this development?
Our first concern, of course, is for the effectiveness of any form of action on behalf of the victims of armed conflict. We believe a few indispensable conditions, however, must be met.
In the first place, the legal context must be quite clear. The authorities have to know what is expected of them, and why. For this, they do not need to be constantly reminded of the legal texts. But those taking action to help the victims of armed conflict must be perfectly aware of the legal basis on which that action rests.
Secondly, the methods used must be tried and tested. Visits to places of detention, and especially any follow-up, the gathering of allegations on which a report to the authorities may be based, and observatio ns regarding the allocation of relief and the latter's effects, all call for a professional and experienced approach.
Lastly, personnel sent into the field must have all the requisite qualities to act in accordance with the principles of humanity, neutrality and impartiality.
In other words in order to be effective and efficient protective action has to be credible.
Having myself seen a great many ICRC delegates at work, and having on several occasions admired the work carried out by numerous intergovernmental and non-governmental organizations involved in the field, knowing as I do that they too pay a heavy toll to the growing insecurity which nowadays surrounds humanitarian work, and aware of the enthusiasm that such work arouses among young Westerners, I know well that the possibilities are boundless.
My concern lies elsewhere. I feel that there must be a degree of consistency between the legal framework and the procedures used to implement it. If a close relationship is not maintained, the resulting proliferation of efforts might only have the effect of weakening the law.
I should like to conclude by leaving the strict scope of the law to mention that, on the basis of its fundamental principles, the Red Cross as a whole and the ICRC in particular will remain committed to promoting ethical values by stressing the importance of respect for human dignity in all circumstances. Indeed the words of Max Huber, one of my great predecessors and an eminent specialist in international law may be recalled at this stage: " The essential and decisive principle of the Red Cross is the idea of man's responsibility for suffering " .
Ref. Exp(16 Mar. 95)