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The International Committee of the Red Cross and International Humanitarian Law

20-05-1996 Statement

Comenius University, Bratislava, 20 May 1996 - Intervention by Dr Cornelio Sommaruga, President, International Committee of the Red Cross.

First, I would like to thank you warmly for your invitation and express to our hosts my sincere gratitude for their hospitality. In this historical city of Bratislava, in a renewed University, I would like to speak about humanitarian law, a topic of long history as well as a burning issue of our time.

 1. The right to survival, basis of humanitarian law  

Every people, every civilization , even animals, usually observe restraints in their use of violence within the group, against the same species. Such restraints, historically imposed by the need for survival of the individual tribe, civilization, species, are now extended to all peoples and nations with the universal ratification of the main instrument of contemporary international humanitarian law, the four Geneva Conventions of 12 August 1949 on the protection of war victims, and the recognition, after World War II, of the customary character of the 1907 Hague codification of the laws of war by the International Tribunal in Nuremberg and the International Court of Justice.

Humanitarian law is at the same time rooted in the history of all traditions of humankind , in all parts of the world, and is also very much part of our future , as one essential safeguard for our survival as a species. In the words of Jean Pictet, one of the founding fathers of contemporary humanitarian law, respect for humanitarian law is "necessary to humankind's survival".  

 A llow me to quote Martin Luther King, who wrote thirty three years ago : "The chain reaction of evil - hate begetting hate, wars producing more wars - must be broken, or we shall be plunged into the dark abyss of annihilation". [1 ]

 2. The ICRC as initiator of contemporary humanitarian law and action  

The ICRC initiated contemporary humanitarian law and is the founding body of the world-wide Red Cross and Red Crescent Movement.

After the battle of Solferino, fought in 1859 between Austrian and French troops, on Italian soil, Henry Dunant, a Swiss citizen from Geneva, witnessed the suffering of wounded soldiers left to die untended. With the help of local women he did what he could to care for them without any distinction. This experience prompted Dunant to publish his book "A Memory of Solferino" containing two proposals :

* The first was to create in each country a Society for relief to the wounded which could, in the event of a conflict, help the army medical services carry out their task; that was the origin of today's National Red Cross and Red Crescent Societies.

* The second was that Governments adopt an international Convention to provide a legal basis for the protection of military h ospitals and medical personnel.

The ICRC was founded by Henry Dunant and four other Swiss citizens on 17 February 1863 in Geneva. In the same year, on 29 October, in Geneva, an international Conference of Government representatives and philanthropists adopted 10 resolutions, which brought the International Red Cross Movement into being.

The Geneva Committee then directed its efforts towards the prompt establishment of national relief societies for the military wounded.

In agreement with the Geneva Committee, the Swiss Federal Council invited all States of Europe, the United States of America, Brazil and Mexico to Geneva for a " Diplomatic Conference " held on 8 August 1864.

Already on 22 August of the same year the "Geneva Convention for the amelioration of the condition of the wounded in armies in the field" was signed by representatives of 12 States. This was the First Geneva Convention, the first treaty of the whole contemporary edifice of humanitarian law. In this text the red cross emblem acquired international legal protection for wounded and relief personnel and ambulances.

This first humanitarian multilateral codification established a working pattern for the ICRC :

* assessment of the needs and the possibility

for a new codification, regrettably in general after a humanitarian tragedy such as the battle of Solferino;

* convening of legal and humanitarian experts;

* agreeing with the Swiss Government on the invitation of Government representatives to Diplomatic Conferences in Geneva.

The protection of the shipwrecked followed the protection of the military wounded on land : it was after the disasters a t sea of Lissa in 1866, Cuba in 1898 and Tsushima in 1905 that Governments adapted in 1907 the humanitarian principles of the Geneva Convention to naval warfare. Protection of shipwrecked and of hospital ships is now legally guaranteed in the Second Geneva Convention of 1949.

The third step was devoted to prisoners of war. During First World War, there were only some articles of The 1907 Hague Regulations governing the treatment of seven million prisoners of war. The need was very soon felt to supplement the law in force. The experience of World War I supplied material for the Geneva Convention relative to the treatment of prisoners of war adopted in 1929.

Finally, the protection of civilians was introduced into the Geneva Conventions only after the Second World War; with its millions of civilian casualties, prisoners of war, shipwrecked and wounded.

The four Geneva Conventions of 1949 - relying on past experiences - updated the international instruments of humanitarian law protecting

* wounded and sick (First Convention)

* shipwrecked (Second Convention)

* prisoners of war (Third Convention)

and added a new Convention (the Fourth) for the protection of civilians in occupied territories and civilian internees.

Another innovation in 1949 was Article 3 common to the four Conventions. Prompted by the experiences of the Spanish Civil War, Article 3 protects victims of non-international armed conflicts. It is a very important text, a sort of a mini convention, and not only for non-international armed conflicts. In its judgement in the Nicaragua case, the International Court of Justice declared that the rules of Article 3 "also constitute a minimum yardstick, in addition to the more elaborate rules which are to apply to international conflicts" ; and that "they are rules which, in the Court's opinion, reflect what the Court in 1949 called elementary considerations of humanity". [2 ]

The first case of application of Article 3 was the civil war in Guatemala in 1954. Subsequently it was often the basis for ICRC's offers of services in many other internal conflicts or wars whose international status was not recognized by all parties.

The decolonisation process and the Vietnam war demonstrated the need for reaffirmation and development of the Geneva Conventions, especially with reference to protection of the civilian population and victims of civil wars. This was done in 1977 with the adoption of two Protocols Additional to the 1949 Conventions.

Additional Protocol I extends the protection afforded to victims of international armed conflicts, especially the protection of civilians against hostilities.

Taking into account the many non-international armed conflicts which have taken place since 1949, Additional Protocol II of 1977 develops and supplements the provisions of Article 3 of the Conventions for the protection of the growing number of victims of non-international armed conflicts. This Protocol II is an important instrument of international humanitarian law. Allow me to recall that it was first applied in El Salvador, and that the Statutes of the International Tribunal on Rwanda encompass the crime of genocide, crimes against humanity, as well as violations of common Article 3 of 1949 and Protocol II.  

The 1949 Conventions comprise more than 450 articles and the 1977 Additional Protocols another 130. Today, the issue is not so much to set new standards as to improve compliance with existing rules of international humanitarian law, be they treaty based or customary.

This should be best achieved by combining three approaches:

* by achieving universal adherence by States to all the instruments of international humanitarian law;

* by providing training and education in the rules and principles of those instruments;

* by implementing and enforcing those rules and principles in all armed conflicts, international and non-international

 3. Today's and tomorrow's humanitarian challenges  

The impact of conflict on human lives, economic development and the environment is devastating. [3 ]

Today's conflicts (in Afghanistan, Bosnia, Burundi, Chechnya, Liberia, Peru, Rwanda, Somalia to name just a few) provide a powerful illustration of the absolute necessity of protecting and bringing aid to destitute and starving people and, at the same time, the extreme difficulty of conducting humanitarian operations in a context of anarchy.

Peace, justice and development are linked. Unattended poverty leads to conflict. Unpunished crimes call for revenge : in Rwanda, the great needs are justice and cash, in that order. [4 ]

With so many tragedies of today, one is struck by a feeling of predictability, a social equivalent of Greek tragedy, time-bombs waiting for the moment to be detonated. [5 ]

Collapsed States [6 ]  bring entire populations back to the Stone Age, the only difference being modern weaponry. The new phenomena of destruction of any social fabric, the complete disappearance of any form of authority excepting that of guns, the denial of basic values, and the increasing chaos and anarchy are making conflicts more c omplex, the suffering of civilians ever more cruel, humanitarian workers and the international community more helpless. Instead of having to deal with the usual two parties to a conflict, each with their own strategic Cold War patron in the background, the ICRC today often has to negotiate with groups, clans, bandits, militias and weekend fighters.

The ICRC remains braced for the future, though not without anxiety. Global socio-economic currents threaten to put ever greater strains on populations around the world. The battle for resources will continue to be compounded by deep-flowing political and ethnic tensions.

Each Red Cross and Red Crescent Society should aim at being the independent humanitarian Number One in its own country. At the international level, the Red Cross and Red Crescent Movement should have the ambition to be a worldwide independent humanitarian system recognized as such throughout the world. This means that it has to set up its own humanitarian operations so as not to be confused with governmental or intergovernmental efforts. The Red Cross must avoid becoming or being considered as an implementing agency of a Government or the UN system. This is obviously even more important in the context of conflicts.

I strongly advocate a strict separation of role and tasks. The Governments and the UN should tackle those problems which come within their political mandate, namely conflict resolution by diplomacy and military action, prosecution and trial. Red Cross action in conflict situations is directed by the ICRC, which has been mandated accordingly, and which is generally perceived as neutral, impartial and independent by the parties to conflict. Outside the conflicts, Red Cross work should be coordinated by the International Federation of Red Cross and Red Crescent Societies if the ICRC's role as a neutral intermediary is not needed. But even there, the Red Cross should not represent the United Nations or governmental intentions and activities. It should instead coordinate its own activities with those of others, in complete independence. Such a clear approach will eventually allow the Red Cross and Red Crescent Movement to become the worldwide system of reference in terms of independent humanitarian action.

I am convinced that a clear division of labour, taking into full account the special conditions which prevail in a conflict, will help all concerned to be more effective and efficient in their respective tasks.

The ICRC will continue to collaborate closely with the rest of the Red Cross and Red Crescent Movement to ensure that the possibilities and limits of humanitarian action are understood and that the provisions of international humanitarian law are respected and implemented.

 4. The collective responsibility of the States Party to the 1949 Geneva Conventions  

According to Common Article 1 to the 1949 Geneva Conventions and to Additional Protocol I of 1977, States Party undertake "  to respect and ensure respect for those instruments in all circumstances " .

States Party thus have a double responsibility, individual and collective :

a) for their own behavior , as a party to a conflict, or as a neutral country, for its own authorities, in time of peace and in time of conflict including for the prosecution of grave breaches;

b) for the behavior of other States Party , allies or other countries.

Resolution 1 of the 26th Interna tional Conference of the Red Cross and Red Crescent held in Geneva in December 1995 ("International humanitarian law: From law to action Report on the follow-up to the International Conference for the Protection of War Victims") solemnly reaffirmed "that every State must respect in all circumstances the relevant principles and norms of humanitarian law and that States Party to the 1949 Geneva Conventions and States Party to the 1977 Additional Protocols must ensure respect for the Conventions and Protocols"  

Governments could assume such a responsibility by

*Diplomatic démarches , discrete or public, bilateral or multilateral, direct or through intermediaries (other States, regional organizations, United Nations, independent persons);

*Mobilizing Member States to issue statements and/or to adopt resolutions affirming the applicability of international humanitarian law and denouncing violations which have been committed;

*Using public denunciations or confidential procedures provided for in Human Rights mechanisms, at the United Nations, or with regional organizations;

*Bilateral coercive measures against a State (or any party to a conflict) violating international humanitarian law such as economic pressure, suspension of military cooperation, restrictions or ban on arms transfers;

*Measures decided by the Security Council (unarmed countermeasures or even the use of armed force) and/or by the General Assembly (countermeasures such as suspension of economic, financial and technological assistance and cooperation, sever ing of diplomatic, trade relations); use of armed forces under Chapter VII of the UN Charter should be realized in order to bring to an end massive violations of international humanitarian law;

*Supporting the humanitarian efforts by the ICRC, UN agencies, regional organizations.

 5. The necessary independence of humanitarian action  

    

The main lesson that the ICRC has taken in its long history of bringing protection and assistance to the victims of conflicts is that humanitarian action in a conflict situation must not be compared with assistance in natural or technological disasters or with development aid in peace time.

 Experience has clearly shown that humanitarian assistance must be provided in accordance with five principles if it is to be effective, sustainable and as safe as possible for the victims and the humanitarian field workers in the conflict zone.  

These five principles are : impartiality, neutrality, independence, the consent of parties to the conflict, the basing of assistance on evaluated needs.

 Impartiality - which is directed to the victims - means helping without discrimination as to ethnical or national criteria, religious beliefs or political opinion. Efforts are made to relieve the sufferings of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress. The women of Solferino were saying : "Siamo tutti fratelli" ("We are all brothers") .

 Neutrality signifies not taking sides in hostilities or engaging at any time in controversies linked to the conflict. Neutrality in a conflict excludes advocacy in favour of a party to the conflict.

 Independence means to act without having in mind ulterior, mainly political or military motives and instructions not based on humanitarian considerations.

The consent of the parties to the conflict, in other words the negotiated access, is the only guarantee for sustainable action and for the safety of all involved. A single security incident may jeopardize a large-scale operation.

And finally the principle that assistance must be based on evaluated needs means to engage in a credible and transparent operation which is not subject to pressure from parties to the conflicts, donors or the media.

Any violation of those five principles in fact reduces the credibility of humanitarian action in general and jeopardizes its long-term effectiveness.

 6. Building up a world-wide humanitarian network  

During the 1990s, the ICRC has found itself dealing with new players on what has traditionally been its exclusive turf. ICRC delegates on the ground and the organization as a whole have recognized the need to cooperate with these new players in the interests of the victims. Not least of all, cooperation is needed to ensure that victims (refugees, displaced persons, detainees) do not suffer as a result of confusion and bargaining among local authorities regarding which agencies are permitted to do what. In maintaining relations with, for example, NGOs, UN agencies (UNHCR, WFP, UNICEF, UNDP, WHO, UN Human Rights Monitors), the ICRC hopes to identify complementary roles, to build up synergies and to preserve the special mandate entrusted to it by the 1949 Geneva Conventions.

The ICRC has observer status at the United Nations General Assembly, cooperates with the UN Department of Humanitarian Affairs, and attends meetings of the Inter-Agency Standing Committee as an observer so as to coordinate its activities with those of UNHCR, UNICEF, WFP and WHO in particular.

The ICRC also attends the meetings of regional international organizations, either as an observer or as a guest. In particular, it cooperates with

* the Council of Europe;

* the Organization for Security and Cooperation in Europe (OSCE);

* the Organization of African Unity (OAU); 

* the Organization of the Islamic Conference (OIC);

* the Non-Aligned Movement (NAM);

* the Organization of American States (OAS);

* the Inter-Parliamentary Union (IPU).

 7. Beyond humanitarian action, waging peace   

Humanitarian law has evolved from a few rules protecting only certain categories of individuals (from the medieval knights to today's armed forces), to a set of provisions ensuring fundamental humanitarian guarantees protecting entire populations.

Humanitarian instruments in force form part of international law and are interlinked with the system of international law for arms control or for peaceful settlement of conflicts.

We live in the age of the network, and we need a network for the survival of life on this planet. We are all part of networks.

I want you to join the humanitarian network, in a global view of humanity : not only emergency assistance and protection, and rehabilitation of victims of armed conflicts, rebuilding war-torn countries, but also helping settling conflicts, in co-operation with all, in respecting traditions, mandates and humanitarian rules and principles.

Humanitarian law and its principles are part of a network of solidarity, when this is most difficult : in time of armed conflict.

There are many interrelationships between humanitarian activities and peace :

a) leaving open the possibility of dialogue, avoiding degradation by excessive violence both between adversaries (internationally) and among one's own population (internally);

b) unsolved humanitarian problems (refugees, prisoners, disappeared, missing in action) often become serious political issues. They could hamper the resuming of normal peaceful relations between countries, often years or decades after the actual cessation of the war.

ICRC's humanitarian efforts are nevertheless purposely kept separated from political negotiations by regional or universal organizations to restore peace, limiting its action to strictly humanitarian activities.

The following steps could be considered in a global humanitarian approach :

1. Reflect on the best way to practically implement common values to humankind, including the respect for different values, and peaceful settlement of disputes, and, more generally, controlling violence and intolerance; the choice between war and peace in coming years will depend on the continuance of the arms race, or on disarmament. But more than anything, it will depend on our decision to turn education and the mass communication media into instruments of peace. Peace can be taught, from kindergarten to post-graduate studies ! Peace is made, not found. Peace is not rest. It is life.

2. Reaffirm humanitarian rules (ratify and implement existing instruments) and principles (promote ethical education) applicable in all situations;

3. Create a network of organizations and individuals willing and able to support the humanitarian effort each in their own capacity. Many untapped resources are available and could be used to cope with most challenges this planet is facing today;

4. Negotiate quietly first : behind closed doors people are more prone to listen and accept even difficult messages;

5. Go public in the last resort : public opinion can be a powerful factor of influence on any party to a conflict and should be used to mobilize public opinion, to keep up standards of " public conscience " so that Governments and other parties to conflicts will abide by their humanitarian - or simply human - obligations;

6. Have a global view of humanity : what is happening in Rwanda and Sri Lanka has a direct impact on Europe. Violations of humanitarian law in one part of the world is an abdication of our common humanity, an invitation to further violations all over the world.

7. Synergism : Implement it locally in cooperation with all in respecting traditions, mandates and available resources. As the Commission on Global Governance wrote in its Report : " Enlightened leadership calls for a clear vision of solidarity in the true interest of national well-being and for political courage in articulating the way the world has changed and why a new spirit of global neighbourhood must replace old notions of adverserial States in eternal confrontation... "  [7 ]

8. Work patiently against all odds : there are no instant solutions to conflicts. Assessment of needs, negotiation with all parties, patience and perseverance are necessary, in meeting human distress in increasingly difficult situations.

 9. Considering the crises of today and of tomorrow as a painful growth-process of humankind similar to the transition of one human being from childhood to adulthood : we are all involved in this evolution which first brings more aggressive behavior, more demands for independence, more uncontrollable elements and events. We believe that this outburst of energy (often a mixture of despair, pride and madness) could best be met and checked with a combination of firmness, respect and compassion, which are not contradictory.

The approach adopted by the ICRC since its inception is to call forth man's better nature, good will and cooperation, without passing judgement either on the persons involved or on the causes which prompt their actions. ICRC delegates must appeal to the sense of humanity of the army commander and of the representative of an insurgent movement, so as to obtain their consent to assist the wounded, visit prisoners and protect civilians.

Thus, through deeds more than words, through action more than law, paving the way for reconciliation, so that erstwhile enemies turn to waging peace.

This allow me to conclude by wishing you all the best, in keeping in mind the motto of the Red Cross: "Per Humanitatem ad pacem" (trough Humanity to Peace).

 Notes  

1. Martin Luther King, Jr., Strength to Love, Cleveland North Light Books, 1963, p. 53.

2. International Court of Justice. Case concerning Military and paramilitary activities in and against Nicaragua , Judgement of 27 June 1986 (merits), para. 218

3. CRANNA, Michael (Editor) The True Cost of Conflict, London, Earthscan, 1994, p. 197

4. PRUNIER, Gérard. The Rwanda Crisis 1959-1994. History of a Genocide, p. 354

5. Ibid. p. 346

6. See ZARTMAN, I William (Editor) Collapsed States. The Disintegration and Restoration of Legitimate Authority, Boulder, SAIS African Studies Library, 1995, 301 pages

7. THE COMMISSION ON GLOBAL GOVERNANCE. Our Global Neighbourhood :

The Report of the Commission on Global Governance, London & New York, Oxford University Press, 1995

Ref. EXP(20 may 96)