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Editorial - IRRC March 2004 No 853

31-03-2004 Article, International Review of the Red Cross, No. 853

The invasion and subsequent occupation of Iraq by the Coalition forces have led to renewed attention to certain questions of international law, many of which remain unanswered or at least controversial. Other concerns that have been on the table for some time are related to the alleged change in the nature of contemporary conflicts. This issue of the Review contains articles focusing on certain topical problems that are currently the subject of debate.

Many would have preferred to see a UN-sanctioned operation in Iraq rather than an occupation by a number of States outside the UN framework. But what would the consequences have been for international law? Would a UN administration of Iraq also be considered an “Occupying Power” and therefore be bound by the law of occupation? And is this body of law suited to operations that are mainly deployed to accompany or even bring about institutional change? Sylvain Vité tackles these questions, and concludes that the applicability of the law of occupation to UN administrations is limited and that it is not appropriate in the long run to govern operations meant to bring about, or which result in, institutional change. The arguments put forward by the author, while dealing with UN-mandated operations, could shed some light on the compatibility of similar operations conducted by individual States outside their territory, with the law of occupation.

Visual and other reports on the advances of the Coalition forces in Iraq and the recent security incidents have been widely broadcast. The Coalition’s policy of “embedding” journalists in their armed forces and several deadly incidents affecting journalists or media premises b eg reflection on the status and protection of journalists and the media in times of armed conflict. Alexandre Balguy-Gallois argues for a new instrument reaffirming the obligations of parties to an armed conflict vis-à-vis journalists and their equipment and working environment. To his mind, that instrument should also improve the existing law in the light of developments such as those seen during the Iraq war.

Another specific question that has arisen in recent conflicts in Afghanistan, Iraq and around the world is the function of the military uniform in international humanitarian law. Are combatants obliged to wear a uniform, or is it enough if they distinguish themselves from the civilian population? And does the fact of not wearing a uniform affect a person's entitlement to prisoner-of-war status? Toni Pfanner considers such questions from both an historical and a legal perspective in his article on “Military uniforms and the law of war”.

The context of armed conflict gives rise not only to legal but also to many psychological problems. International humanitarian law protects the giving of spiritual assistance to combatants. Stefan Lunze explains the specific status and protection of religious personnel in times of armed conflict and points out some of the legal, moral and practical problems they encounter.

 
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Armed conflicts always cause human suffering, and the last few decades have experienced an increase in extreme violence and cruel acts perpetrated by parties to armed conflicts, whether international or internal in nature. Jean-Jacques Frésard enquires into two elements that seem to play a part in the behaviour of combatants in the field: obedience to higher authorities, and moral disengagement. Analysing Stanley Milgram’s famous experiment s on the influence of a perceived legitimate authority upon human behaviour, he applies their results to the battlefield and examines further studies on the same subject. Frésard’s article is part of a broader study on the “Roots of behaviour in war”. By conducting comprehensive research into the key factors influencing the behaviour of individuals engaged in hostilities in such a way that they either respect or violate international humanitarian law, the study sought to help improve the communication policies and strategies of the ICRC so as to make them more effective in preventing violations of IHL. A summary of it is published in the Reports and Documents Section of this issue.

 
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That same section contains documents on matters similar to those mentioned above. The applicability of international norms — be they IHL, the law of occupation, or human rights standards — to peacekeeping forces carrying out a UN mandate raises many more questions, which were discussed at an Expert Meeting on Multinational Peace Operations under the heading “Applicability of international humanitarian law and international human rights law to UN-mandated forces”.

Are we witnessing a new kind of warfare today? Have contemporary conflicts indeed changed in nature and, if so, what are the consequences for international humanitarian law? How does IHL deal with the fight against terrorism? How can respect for the rules of law be improved? These questions are the subject of the ICRC’s study on “International humanitarian law and the challenges of contemporary armed conflicts”. An excerpt of the Report submitted to the International Conference of the Red Cross and Red Crescent is published in this issue.

The Review