How does humanitarian law adapt to new developments and what is the ICRC's role in the process?
Extract from ICRC publication "International humanitarian law: answers to your questions"
International humanitarian law is developed by States through codification or State practice. These two processes usually overlap.
Widespread practice of States may crystallize customary international law. It is also State practice, sometimes combined with the activities of non-governmental organizations (NGOs), which may trigger the codification of international law. Codification takes the form of treaties, such as conventions, covenants, protocols, or pacts. For example, a number of States had already passed national legislation which implicitly or explicitly prohibited the use of anti-personnel mines. Yet that practice was not widespread and therefore no customary law had formed. Then in 1997 a conference was convened to develop a specific convention, and the use, stockpiling, production and transfer of antipersonnel mines became prohibited for all States which ratified the treaty.
The ICRCs role in the development of humanitarian law is to:
monitor the changing nature of armed conflict;
organize consultations with a view to ascertaining the possibility of reaching agreement on new rules;
prepare draft texts for submission to diplomatic conferences.
The example of the two Protocols additional to the Geneva Conventions gives an idea of how humanitarian law is made, from the initial idea to its adoption:
- on the basis o f draft rules prepared in 1956, then of resolutions adopted in the 1960s by two International Conferences of the Red Cross and by the International Human Rights Conference held in Tehran in 1968, the ICRC studied the possibility of supplementing the Conventions adopted in 1949;
- in 1969 the ICRC submitted that idea to the 21st International Conference of the Red Cross, in Istanbul; the participants, including the States party to the Geneva Conventions, mandated it accordingly and the ICRCs own lawyers embarked on the preparatory work; between 1971 and 1974, the ICRC organized several consultations with governments and the Movement; the United Nations was regularly given progress reports;
- in 1973 the 22nd International Conference of the Red Cross, in Tehran, considered the draft texts and fully supported the work done;
- in February 1974 the Swiss Government, as depositary of the 1949 Geneva Conventions, convened the Diplomatic Conference on the reaffirmation and development of international humanitarian law applicable in armed conflicts, in Geneva; it comprised four sessions and ended in June 1977; at the final session of that Conference, the 102 articles of Protocol I and the 28 articles of Protocol II were adopted by the plenipotentiaries of the 102 States represented.
A few recent developments
The Protocol relating to blinding laser weapons, adopted at the Vienna Diplomatic Conference in October 1995, prohibits both the use and transfer of laser weapons, one of whose specific combat functions is to cause permanent blindness. The Protocol also requires States to take all appropriate precautions, including the training of armed forces, to avoid causing permanent blindness by the lawful use of other laser systems.
In the case of mines, the field of application of Protocol II to the 1980 Convention was extended by the adoption, in Geneva on 3 May 1996, of an amended version of the Protocol on prohibitions or restrictions on the use of mines, booby traps and other devices. The Convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction, signed by 121 countries in Ottawa on 3-4 December 1997, entirely prohibits anti-personnel mines. This Convention also provides for mine-clearance and assistance to victims of mines.
IHL treaties containing rules applicable to environmental protection include Article 55 of Additional Protocol I and the Convention on the prohibition of military or any hostile use of environmental modification techniques of 10 December 1976.
However, the Gulf War of 1991 revealed that those rules were little known and sometimes imprecise. Therefore, in 1994, encouraged by the UN General As sembly and with the help of experts in the matter, the ICRC drafted Guidelines for military manuals and instructions on the protection of the environment in times of armed conflict.
Another recent development is the San Remo Manual on international law applicable to armed conflicts at sea. The importance of that undertaking, carried out by the International Institute of Humanitarian Law with the support of the ICRC, was recognized by governments in the resolution adopted by the 26th International Conference of the Red Cross and Red Crescent, held in Geneva in 1995.
Although the Geneva Conventions and their Additional Protocols do not expressly prohibit the use of nuclear weapons, the principles and rules of IHL do apply in such cases. Among other things, they require belligerents to distinguish at all times between combatants and civilians and prohibit the use of weapons likely to cause unnecessary suffering. The application of those principles to nuclear weapons was reaffirmed by the International Court of Justice in The Hague in 1996.
A further development was the adoption of the Statute of the International Criminal Court on 17 July 1998. The Statute is an important step towards reducing impunity and ensuring greater respect for humanitarian law. The new Court will have jurisdiction over war crimes committed in either international or non-international armed conflicts. Although IHL already lays down a duty to prosecute war criminals, the new Court adds to the tools available.
The latest development concerns means of combat. In December 2001, the scope of the 1980 UN Convention on prohibitions or restrictions on the use of certain conventional weapons was extended. Previously the Convention had only covered situations of international armed conflict, but the Second Review Conference amended Article 1 to include situations of non-international armed conflict.