International law remains one of the strongest tools
59th Annual Session of the UN Commission on Human Rights, Geneva, 18 March 2003 - Statement by the President of the ICRC
Madam Chairperson, Excellencies, Ladies and Gentlemen,
Thank you for the opportunity to address the Commission on Human Rights.
It is a telling sign that the High Commissioner for Refugees and I are addressing this body one after the other. Human rights law, refugee law and international humanitarian law share the common objective of protecting human life, safety and dignity. These bodies of law and their supervisory mechanisms form a interlocking web of guarantees for individuals in particular in times of emergency – when they are most vulnerable.
The development of these bodies of law over the past half century is a remarkable humanitarian achievement. A comprehensive system has been established where no state is above the law and no person falls outside the protection of the law. If correctly and fully applied, international law remains one of the strongest tools the international community has at its disposal to maintain international order and stability and to ensure the safety and dignity of all persons.
This being said, the international legal system has come under close scrutiny; doubts have been expressed about its pertinence with regard to today's reality. The ICRC's impression is that these doubts arise to a large extent from a misunderstanding as to which part of the international legal system regulates a particular issue. Resort to the use of force is regulated by the United Nations Charter – the rules of ius ad bellum .
International humanitarian law - ius in bello - regulates the conduct of hostilit ies and protects persons affected by armed conflict, be it international or non-international. Its objective is to prevent and alleviate human suffering during armed conflict. Its rules apply equally to all parties to a conflict regardless of the lawfulness of resort to force. It operates independently of the rules which regulate resort to the use of force. For the purposes of international humanitarian law and of the protection it affords, there is no just or unjust war.
The ICRC, as promoter and guardian of international humanitarian law, thus does not address the lawfulness of the resort to armed force. Instead, aware of the humanitarian consequences of any conflict, it endeavors to ensure the faithful application of international humanitarian law and to alleviate the plight of persons affected by the hostilities.
Once an armed conflict begins, the rules of international humanitarian law become applicable. As the body of law specifically developed to apply in situations of armed conflict, its provisions cannot be suspended in the very situations of public emergency which it is designed to regulate.
What are these rules? First, a requirement to spare civilians from the effects of hostilities. This premise underlies the principle of distinction, which requires belligerents to distinguish at all times between combatants and civilians and to direct hostilities exclusively against combatants. The implementation of this principle has often proved difficult in the reality of contemporary armed conflicts. It remains nevertheless the cornerstone of international humanitarian law. From it flow the prohibitions on attacks against civilians and civilian objects and indiscriminate attacks.
The principle of proportionality requires belligerents to refrain from an attack on a legitimate military target if it is expected to cause incidental loss of civilian life, injury to civilians, or damage to ci vilian objects which would be excessive in relation to the concrete and direct military advantage anticipated from that attack.
The right of belligerents to adopt means of injuring the enemy is not unlimited: international humanitarian law prohibits the use of means and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. This is injury or suffering going beyond the accepted objective of war: overpowering the enemy. This general prohibition has been given specific meaning in the various treaties restricting or prohibiting the use of particular weapons.
Finally, international humanitarian law lays down minimum protections and standards to be applied in situations where persons are most vulnerable during armed conflict: when combatants are captured, wounded, sick or shipwrecked, or when civilians are interned, detained, displaced or in occupied territory.
It cannot be emphasised enough that the protections to be granted to captured combatants do not amount to impunity. The Geneva Conventions and their Additional Protocols are not an obstacle to justice. They merely require that due process of law be applied in dealing with alleged offenders.
When I addressed this gathering last year, I expressed my concern at the doubts which had been raised about the relevance of international humanitarian law to modern day conflicts and security threats and about its adequacy for dealing with them. I have taken this questioning to heart because, if not seriously dealt with, it can undermine the credibility of a body of law as much as its violation in practice.
Over the past year the ICRC and others have engaged in a rigorous assessment and analysis of the pertinence of international humanitarian law. At this stage, the ICRC is convinced that, on the whole, the law does adequately respond to the needs of modern day conflicts. Its provisions establish a delicate balance between military imperatives and human dignity.
As many of you may know, a group of government and independent experts gathered in Harvard earlier this year to address the issue of adequacy of international humanitarian law. It is comforting that they too concluded that the law was satisfactory. A number of areas where further thought would be desirable were identified. I will turn to ICRC proposals on how to carry this thinking forward in a moment.
This conviction in the continued validity and adequacy of existing law should not however be interpreted as a naïve belief that international humanitarian law is perfect. No body of law can claim to perfection.
Over the past century international humanitarian law has given ample proof of its dynamism and capacity for adaptation and development to respond to changing realities. Looking just at the past ten years, we have witnessed the establishment of international tribunals to try persons accused of violations of international law, including international humanitarian law, the International Criminal Court in particular. A significant number of instruments restricting or prohibiting the use of certain weapons have been developed and States are currently discussing the possibility of negotiating a further protocol to the 1980 Convention on certain Conventional Weapons to address the scourge of explosive remnants of war.
These developments at the international level have been accompanied by a slow, but significant increase in the willingness of national courts to try persons accused of violations of international humanitarian law.
This is encouraging but there is still plenty of work to be done. One obvious area where development of the law would be welcome is that of non-international armed conflicts. These conflicts, which form the majority of today's conflicts, are currently only regulated by a minimal number of treaty rules. Means and mechanisms must be identified to ensure that organised armed groups apply international humanitarian law and to sharpen their sense of accountability.
The ICRC has engaged in an extensive study to determine what the rules of customary international humanitarian law are today, with a particular focus on the identification of the rules applicable in non-international armed conflicts. State practice indicates that many of the conventional rules which regulate the conduct of hostilities in interstate conflicts are also applicable in non-international conflicts. While not a complete solution to the question of the law regulating these situations, the ICRC study, which will be published this autumn, will be a means of strengthening the protection of victims of non-international armed conflicts.
Vigilance as to the development of new weapons remains important. The ICRC is alarmed by the potential hostile use of biotechnology agents and the impasse in diplomatic efforts to strengthen the Biological Weapons Convention.
Last autumn the ICRC appealed to all political and military authorities to strengthen their commitment to the norms of international humanitarian law prohibiting the hostile uses of biological agents and to subject potentially dangerous biotechnology to effective controls. In parallel, it has appealed to the scientific and medical communities, industry and civil society in general to ensure that potentially dangerous biological knowledge and agents are subject to effective controls. There will be a follow-up to this appeal.
Improving respect for international humanitarian law remains a huge challenge.
Without greater respect for existing rules the credibility and protective value of existing and also of any new rules is very limited.
How can respect be improved? First, and quite simply, by spreading knowledge of the rules to authorities, to combatants, including, of course, organised armed groups, and to civil society.
Secondly, by the adoption of preventive steps in times of peace, such as the implementation of relevant treaties into national laws, military manuals and other instruments.
Thirdly, in the heat of conflict, by the mobilisation of all those who can contribute to the better respect of the law. The representations made on a daily basis by ICRC delegates in the field to those participating in hostilities are often a lifesaving contribution.
Under common Article 1 of the Geneva Conventions and of Additional Protocol I all States Parties undertook to “respect and ensure respect ” for their provisions in all circumstances. It is generally understood that these words lay down a responsibility for states which are not parties to a particular armed conflict to ensure respect for international humanitarian law by the belligerents. While the role and influence of third states and international organisations - be they universal or regional - are crucial for improving compliance with the law, resort to these provisions has been inconsistent at best.
Recognising both the potential of this commitment and the difficulties experienced in making it an effective tool in ensuring respect for the law, the ICRC is organising five regional meetings in the coming months to focus on the question of how to improve compliance with international humanitarian law. In Brussels, Cairo, Kuala Lumpur, Mexico City and Pretoria experts will consider how this obligation to ensure respect for international humanitarian law can be operationali sed. Particular emphasis will also be laid on the question of improving the accountability of organised armed groups.
The findings and recommendations of the five meetings will be presented to the International Conference of the Red Cross and Red Crescent which will be held in December of this year.
Furthermore, this year's annual San Remo roundtable jointly organised by the Institute of International Humanitarian Law and the ICRC will have as its theme “international humanitarian law and other legal regimes – interplay in situations of violence” - a topic of interest to us all.
The ICRC stands ready to engage in an ongoing analysis of how to improve this body of law further and of how to contribute to the clarification of certain key concepts of international humanitarian law. But let me be clear on three points: first, any attempt to re-evaluate its adequacy can only take place after it has been determined that it is the law which is lacking and not the political will to apply it.
Secondly, the ICRC will not engage in a development of the law if this is an excuse to reduce existing standards. Such an exercise must have as its aim the buttressing of existing law and the enhancement of its protections.
Thirdly, the real test of the International Community's recognition of the adequacy of international humanitarian law to deal with today's conflicts and of its commitment to the existing rules will be their full respect in concrete conflict situations in the days, weeks and years ahead. Foremost on my mind is the looming conflict in Iraq. The ICRC is determined to pursue its humanitarian activities in that country, to work tirelessly for the full application of the provisions of international humanitarian law and to provide the affected civilian population with critical medical care and emergency relief. This is what the ICRC stands for. This is what it will do, as an independent humanitarian institution, in Iraq as well as in the many conflict situations that fail to make the headlines.
Thank you Madam Chairperson.