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Improving respect for international humanitarian law: a major challenge for the ICRC

03-06-1995 Statement

Fourth George Seward lecture, International Bar Association, Geneva, 3 June 1994. Statement by Cornelio Sommaruga, President of the International Committee of the Red Cross.

It is a pleasure for me to deliver the fourth George Seward Lecture and to share with all of you who have gathered here in Geneva the current major concerns of the International Committee of the Red Cross (ICRC)

with respect to the implementation, development and dissemination of international humanitarian law.

I am especially happy to review these concerns with a group of lawyers from all over the world because, as a lawyer myself, I am keenly aware of the role you may be called upon to play in this field also as distinguished citizens of all your countries.

I should also like to take this opportunity to talk more specifically about the existing mechanisms to ensure respect for humanitarian law and about the ICRC's current efforts to enhance compliance with the rules applicable in any armed conflict. These efforts are aimed at prompting States to adopt preventive measures, improving faithful application of the relevant provisions and establishing a system of sanctions to repress and put an end to violations.

News about armed conflicts, violence and political unrest reaches each and every one of us daily from all parts of the world. It is accompanied by unbearable pictures of combatants and civilians who have been wounded, tortured, forced into exile, starved or massacred. Yet, the right to assistance, as laid down in the Geneva Conventions, has too often been denied to such victims. Indeed, humanitarian organizations have not only continuously been hindered in their efforts to provide protection and distribute relief to vulnerable groups, they

have even become the targets of warring parties.

In the face of this tragic reality, I should like once again to stress the aims of international humanitarian law, the so called " Geneva law " .

These aims are both modest and of crucial importance. They are crucial because humanitarian law seeks to preserve minimum standards of behaviour in situations where people are caught up in armed conflict, yet at the same time they are modest because war retains its cruelty and still leads to widespread suffering, large-scale squandering of resources and the devastation of entire nations. Moreover, all appeals for compliance with humanitarian law contain an element of defeat for the international community if one considers the fact that States

undertook, in the UN Charter, to find peaceful means for the settlement of conflicts and ultimately to eradicate war.

From its very inception, some 130 years ago, the International Committee of the Red Cross has endeavoured to bring protection and assistance to victims of armed conflicts in two major ways: by developing and ensuring respect for international humanitarian law and by carrying out humanitarian operations in conflict areas to provide relief for the victims.

The first time action was taken to assist wounded people on the battlefield was during the Italian war of independence in 1859. Five years later, an international conference attended by 16 European States

adopted the Geneva Convention for the amelioration of the condition of the wounded in armies in the field, a treaty which contained the first rules for the protection of wounded members of armed forces and aid workers wearing white armbands marked with a red cross. It also laid down the very working principles that have guided the ICRC during this century. Humanitarian law can thus be seen to have emerged from practical experience; in the same way, that law was later developed and its scope of application broadened. Anyone who takes a loo k at the history of the Red Cross will observe that after every major conflict -whether the naval battle of Lissa in 1866, the First and Second World Wars or, the liberation wars of the sixties and seventies- the ICRC submitted proposals for conventions to the international community. History also shows that the international community was only ready to examine and accept those proposals once mankind had experienced yet another tragic event. This was the case, for example, with the proposed convention for the protection of the civilian population which the ICRC submitted for consideration to the international community gathered in 1934 in Tokyo for the International Conference of the Red Cross. It was not until after the Second World War, against the backdrop of massive deportations and systematic extermination of population groups, that the ICRC's proposal was finally discussed and adopted in 1949 as the Fourth Geneva Convention. The same can be said of the process which led to the adoption by the Diplomatic Conference of 1977 of the Protocols additional to the Geneva Conventions. Today, a vast and sophisticated body of rules exists to limit the effects of war; I shall return later to various aspects of respect for these rules and improved compliance with them by warring parties.

I should now like to say a few words about the ICRC's legal status, which derives from the now universally recognized Geneva Conventions and from the Statutes of the Red Cross and Red Crescent Movement. If National Red Cross Societies are organizations based on rules of national laws and their International Federation a non-governmental organization, on the contrary the ICRC is neither an inter-governmental organization like UNICEF or the Office of the United Nations High Commissioner for Refugees, nor is it a non-governmental organization like the Catholic Relief Services, Médecins sans frontières or Amnesty International. At the Diplomatic Conferences of 1949 and 1977, the private mononational ICRC was cited as a model humanitarian organization and received explicitly a mandate through the Geneva Conventions. Today the ICRC's international legal status has been confirmed by the conclusion of 51 headquarters agreements with governments. Such an agreement was recently signed by Switzerland, giving the ICRC full independence and all the immunities indispensable for its work in his home country. In 1990 the international community granted the ICRC observer status at the United Nations General Assembly, thereby providing further recognition of its special nature as a mononational private association of Swiss citizens, with an international mandate and personality, which acts in behalf of war victims with due regard for the principles of neutrality, independence and impartiality. But let me now return to the ICRC's practical activities.

It was in the context of a war between States that the work of the International Committee of the Red Cross first began to take shape. It all started in Solferino where, in the midst of fighting, local people, spontaneously, helped wounded soldiers on the battlefield under the guidance of a Geneva citizen, Henry Dunant. Later on the ICRC broadened its activities to include assistance and protection for prisoners of war. Today nearly 1,000 delegates, working in 60 delegations including all the major conflict areas of the world, pursue a great variety of activities. In certain conflicts, their work is more particularly oriented towards observing the behaviour of military personnel. This enables the ICRC to submit to the authorities any allegations it has received or observations it has made concerning violations of humanitarian law and to supervise the implementation of its recommendations. To provide you with some examples, this kind of work has been carried out inter alia for the past 26 years by our delegates in the Israeli occupied territories. It was also undertaken during the Gulf war and continues today in many conflicts where ICRC d elegates have direct access to the theatre of military operations, such as in the former Yugoslavia, Afghanistan, Rwanda, Angola, Somalia, Tadjikistan, Mexico, Peru and elsewhere.

Another aspect of the ICRC's work consists, as I mentioned earlier, in providing protection for prisoners of war and security detainees. In almost every international conflict since the Second World War, the ICRC has been able to discharge its mandate with respect to POWs. However, it has constantly had to fight serious violations of the provisions of the Geneva Conventions relative to the treatment and repatriation of POWs. As regards security detainees or better we should call them " political prisoners " , a great number of countries have responded positively to the ICRC's offers to send delegates to observe the physical and psychological conditions of imprisonment. For example, 54 countries agreed to ICRC visits in 1992, and 1993, 47 have done so, and allowed us to visit 143,000 prisoners. Our delegates make recommendations to the authorities concerning the treatment of detainees and supervise their implementation. However, the ICRC deplores the fact that a number of States are still reluctant to respond to its offers of services. These include, among others, China, Myanmar, Turkey and Algeria.

In various conflicts, particularly those in Africa, relief work plays a primary role. Ethnic strife and power struggles regularly disrupt the agricultural, economic and commercial life of many countries, leading to serious interruptions in the food supply, dangerous conditions and massive population displacements. In such situations ICRC delegates not only provide protection, as I outlined before, but also supply food and shelter. Some of these relief operations also include measures to preserve livestock and to enable minimal agricultural subsistence. To take but one example, in Somalia in 1992 and 1993 the ICRC carried out food distributions of an enormous size while at the same time providing seed to farmers and organizing the vaccination of more than 3 million head of livestock. I should also mention the ICRC's medical work, which includes evacuations of wounded soldiers and civilians caught in the crossfire. This was the major task of ICRC delegates during the shelling of Beirut in the early 1980s and is one of their major activities today in Kabul and in Rwanda. Hundreds of wounded people have been carried away by ICRC delegates and by local Red Cross and Red Crescent personnel. Thousands have been treated in ICRC hospitals set up directly in or around combat zones. Just one figure to give you an indication of the magnitude of the problem: in 1992, 32,800 surgical operations were performed in 10 ICRC hospitals throughout the world.

The ICRC performs its legal work and operational activities in parallel. Over the years, international humanitarian law has become a complex field which has its own dynamics, its own time frames, its own conferences and historic commemorations. However, the ICRC continues to propose new humanitarian instruments, taking account of its experience in the field and current developments in the means and methods of warfare. This is necessary because its delegates in the field, who are in direct contact with the evolving reality of conflict,constantly have new legal and practical problems to solve. It is in order to respond to their requests for assistance that the ICRC strives to find new means, both in emergencies and in the long term, to protect people from the effects of modern weaponry and to ensure greater respect for civilians.

To give you a brief overview of the current problems the ICRC has to deal with in the legal field, I shall refer to three major conflicts of recent years which have raised important issues in relation to humanitarian law.

As a result of the Gulf war, awareness of international humanitarian law was heightened among governments, at the United Nations and in international public opinion. Indeed, the coalition forces declared war against Iraq with the stated intention of ensuring respect for humanitarian law in relation both to the sovereign rights of Kuwait and to the ban on aggression contained in the UN Charter. The ICRC took advantage of that momentum to urge all the parties involved to respect and ensure respect for the Geneva Conventions and their Additional Protocol I, an obligation which is laid down in the first article common to those treaties. Moreover, because of the Gulf war several issues pertaining to the conduct of hostilities have received and will continue to receive special attention, namely, collateral damages, the use of the environment as a means of warfare, the sanctions and embargo regime and the use of mines. This fresh attention paid to the legal dimension of the conduct of hostilities and to protection of the civilian population also gave a new impetus to the ratification process of the Additional Protocols.

The cases of Somalia and of the former Yugoslavia will serve to illustrate a different but central issue in relation to the universal application of international humanitarian law. Prior to the Gulf war, UN peace-keeping operations were confined to maintaining cease-fires and providing contingents to serve as observers for agreements concluded between belligerent States. Since then, such operations have increased in number and their scope has changed significantly. The UN operation in Somalia known as UNOSOM II was the first peace-enforcement mission carried out by UN contingents duly mandated by the Security Council. Despite previous agreement, the operation generated hostility and led to violent clashes between UN forces and local armed factions. In the former Yugoslavia, the Security Council mandated UN protection forces to defend designated security areas by using all necessary means, including recourse to force. Thus in Somalia, humanitarian rules were violated by UN forces in efforts to restore law and order and in the treatment of detained people. In the former Yugoslavia, force was used by UN contingents both in self defense and to ensure compliance with UN resolutions and protection for humanitarian convoys.

Why are UN contingents bound to respect the rules of international humanitarian law? One of the main reasons is that the Geneva Conventions constitute an universal standard since they have been ratified by 185 States. The UN cannot violate the minimal rules the international community sets for itself. The second reason is that the armed forces which make up UN contingents are all bound by humanitarian law and any member of those forces who violates its rules in the course of UN duties is subject to court-martialling by the States providing military staff to the UN. The third reason is that, despite the fact that the UN does not have the legal capacity to become a party to the Geneva Conventions, that it has no combatants and that it cannot detain people as prisoners of war, it nevertheless does use force. In such situations, the universally valid humanitarian rules must be applicable. While this applicability does not prejudge the legitimacy of the resort to force, it bears on the way in which force is being

used.

Although this position has been found by the ICRC to enjoy considerable support, it is still under review at UN headquarters in New York. Despite some joint UN-ICRC activity in training advisors on humanitarian law for UN contingents, the UN has still not taken the decisive steps one is entitled to expect from such a prominent international body. Yet explicit support for and full compliance with humanitarian law would tremendously strengthen and promote the universal significance of that law.

In a great number of internal conflicts, such as those in Angola, Georgia, Bosnia-Herzegovina, Afghanistan, Rwanda, Burundi and Liberia -to mention only the most flag rant cases- the basic rules of humanitarian law have been violated in such a grave, repeated and systematic way as to give rise to fundamental questions about its implementation. Calls for the protection of conflict victims often make no sense owing to the absence of responsible and accountable political and military leaders. For the same reasons, negotiations are conducted with great difficulty and recommendations seldom implemented. Moreover, Red Cross delegates face increasing danger since they no longer enjoy all the necessary guaranties to work in conflict areas. Although I cannot provide you with the solutions to these problems, I am convinced that the international community will have to find new ways to respond to such situations or else run the risk of abandoning countless people to situations of total anarchy and writing off entire sections of countries or even continents when it comes to building international

security, world order and lasting peace. Let me put this in the form of a question: can the international community afford to leave part of humanity behind on entering the new millennium? For the ICRC, whose activities are based on the very principle of humanity, this option is totally unacceptable.

Ever since the initiative was taken to adopt the original Geneva Convention in August 1864, the ICRC has had an historical, moral and legal responsibility to work for the development of and respect for international humanitarian law. To explain how it discharges this responsibility, I should like to review five areas in which it is active and takes initiatives.

First of all, the ICRC strives to promote the universal ratification of the existing humanitarian law treaties. Although 185 States are party to the four Geneva Conventions, only 132 and 122 States respectively have ratified their Additional Protocols I and II of 1977. Priority must therefore be given to ratification of these Protocols by all States, especially the m ost influential ones. These Protocols are enhancing the protection of the civilian population in international and non international conflicts. To obtain ratification by the United States of America, Japan and India, among other States, would constitute an important milestone and give greater authority to the whole body of humanitarian law. The ICRC also supports the ratification process of the 1980 UN Convention on specific conventional weapons which is aimed at preventing the infliction of unnecessary and indiscriminate injury.

Secondly, the ICRC makes ongoing efforts to urge the parties to the treaties to implement national measures in crucial areas such as the protection of the Red Cross and Red Crescent emblems and the prosecution of perpetrators of grave breaches of humanitarian law. In follow-up to the International Conference for the Protection of War Victims, a governmental meeting which was held in Geneva last year, States recently received from the ICRC a substantial document which outlined several urgent problems relating to the situation of war victims.

Thirdly, the ICRC is concerned with the respect for international humanitarian law and measures designed to ensure compliance with its rules. This concern is at the core of the ICRC's humanitarian diplomacy, which has both a preventive and a limiting effect on violations. A large gap still exists between the declared intention of the international community to prosecute violators of international law, including the humanitarian rules, and the actual efforts currently being made to stop grave and repeated massive violations of those rules. This is evidenced by the international community's inability to put an end to the widespread practice of ethnic cleansing in the former Yugoslavia, to halt the politically and ethnically motivated massacres in Rwanda and to break through the sieges imposed on tens of thousands of people in Bosnia-Herzegovina and in Afghanistan. When violations bec ome policies and humanitarian negotiations fail, measures of another nature are needed. While it is not up to the ICRC to prescribe to States or to the international community and its political and military organizations the action to be taken, it is the ICRC's duty -as the custodian of international humanitarian law- to continue reminding the States which violate that law and those which strive to ensure respect for its basic rules that the international community must live up to the standards it sets for itself.

I should also like to mention the recent progress made towards establishing a system for the repression of violations of humanitarian law. While that law provides for the repression of grave breaches at the national level, such repression is dependent on the adoption of national implementation measures linked to penal legislation. From the point of view of effective deterrence, it is therefore important that a universal criminal tribunal be established. The decision of the United Nations Security Council to set up an international tribunal to try persons accused of having committed serious violations of humanitarian law in the former Yugoslavia since 1991 was a step in the right direction. It is, however, essential that this tribunal start functioning rapidly and effectively. I should also like to mention the progress in the work of the International Law Commission, which has resulted in the draft statute presently under consideration on a future international criminal tribunal and the draft Code of Offences against the Peace and Security of Mankind. These developments should ensure that those responsible for crimes perpetrated during conflicts, whether international or internal, are duly prosecuted. Beyond the fact that the crimes would thus not go unpunished, this system would have a long-term deterrent effect. At stake is the fate of thousands of people caught up in the horrors of armed conflict. This is why the legal discussions and subsequent setting up of a uni versal tribunal should be carried out very seriously and without delay.

The fourth area concerns the development of international humanitarian law. As with other laws and treaties which must be brought in line with the evolving realities of society, humanitarian law has to be adapted and developed, and new measures introduced to cope with the inventiveness of peoples and nations at war. The ICRC strives to be a driving force behind this process, in which the United Nations and the Depositary State for the Geneva Conventions also have a major role to play. Here I shall mention only five developments in the area of law which the ICRC has induced in recent years: these are the review of the law of naval warfare, the limitations on the use of laser and other directed-energy weapons, the total ban on anti-personnel mines, the protection of the environment in times of armed conflict and the proposed code of conduct for situations of political violence.

Lastly, the ICRC is involved in the multifaceted task of spreading knowledge of humanitarian law. Efforts in this area are intended to have a widespread preventive effect by instilling in people's minds the basic principles of humanity, the fundamental human rights applicable in war and the treaty obligations undertaken by States with respect to the behaviour of their armed forces and paramilitary troops. Governments in particular have the obligation to inform citizens about the rules and principles of humanitarian conduct and the efforts being made to spread knowledge of these rules among their potential enemies. The media should also help inform the public and be ready, especially in periods of mounting tension, to share the burden of such dissemination activities. As for the Red Cross and Red Crescent Movement, it has a very special responsibility in this field. National Red Cross and Red Crescent Societies, the Magen David Adom and all institutions close to the Movement are expected to join the ICRC in spreading the humanitarian message. Of course, we may yet have to go beyond the provisions of the Geneva Conventions since each culture and religion has its own concept of respect for human life and of assistance and compassion for the needy. However, all mankind shares a common goal in aspiring to social order and the absence of war. It is the role of the Red Cross and Red Crescent Movement to help societies attain this goal by spreading the values of non-violence and respect for human dignity, solidarity and tolerance.

Let me conclude by mentioning the ICRC's efforts to place respect for international humanitarian law at the top of government agendas. From 30 August to 1 September of last year, an exceptional Conference for the Protection of War Victims was held in Geneva by the Swiss government on ICRC's initiative. It was attended by 164 State

representatives who expressed their governments'determination to live up to the obligations stemming from the Geneva treaties. The follow-up to that Conference should enhance the credibility of humanitarian law and deepen the commitment of States to it, while increasing awareness of the situation of thousands of people caught up in conflicts through the world. Moreover, the 26th International Conference of the Red Cross and Red Crescent, which is to be held at the end of 1995 in Geneva, will provide a crucial opportunity for the international community to confirm its will to repress violations of humanitarian law and, ultimately, to eradicate all forms of armed conflict.

The ICRC firmly believes that the erosion of humanitarian values is not a foregone conclusion, but on the contrary a challenge to be taken up. In its efforts to rise to this challenge, the ICRC is not alone; however, it still needs more committed people. I therefore hope that my lecture has convinced you of the vital importance of contributing to a world more imbued with humanity.

Per Humanitatem ad Pacem is the motto of the International Red Cross! Help us to realize it.

[Ref.EXP(3 June 94) ]