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The International Committee of the Red Cross as guardian of international humanitarian law

31-12-1998 by Yves Sandoz

The ICRC acts as the guardian of international humanitarian law, a complex role that is closely connected with its own foundation and was later formally entrusted to it by the international community. The article presents various aspects of this role and examines its scope in the contemporary context.

 

 INTRODUCTION  

The International Committee of the Red Cross (ICRC) is known first and foremost for its field operations in aid of victims of armed conflict and internal violence all over the world.

Less well-known is the scope of its role as “guardian” of international humanitarian law, the law applicable in situations of armed conflict. This complex function is closely connected with the founding of the ICRC and was subsequently formally entrusted to it by the international community. The present article seeks to define the role of guardian more clearly and to give greater insight into its significance.

The ICRC was founded in 1863 [1 ] to examine the proposals made by Henry Dunant in his book on the Battle of Solferino. Having come upon this terrible battlefield by chance, Dunant reacted to what he saw in just the same way as the ICRC was to react to war throughout its history: his first thought was to bring practical aid to the wounded. Instinctively, he applied the principle of humanity – the endeavour “to prevent and alleviate suffering wherever it may be found” [2 ] – which is still the essential principle of the entire Red Cross and Red Crescent Movement, and immediately did everything possible to organize help for the thousands of wounded men who had been left to die where they fell.

 But this was not all. Feeling that he had to share what he had experienced and a born story-teller, he wrote his book A Memory of Solferino  [3 ] , which met with resounding success in Europe. His role as a witness was, however, only one stage in a much more ambitious programme. He followed it up with two proposals that caused quite a stir and had remarkable results. The first was to declare army medical services neutral and give them a distinctive emblem so that they could function on the battle field. This was the fountainhead of international humanitarian law. The second was to form, in peacetime, voluntary relief societies to act as auxiliaries to army medical services in time of war. This was the origin of the Red Cross Movement [4 ] .

The ICRC was formed to examine these two proposals and to work towards their implementation. Henry Dunant’s book had prepared the ground so well that they were both a tremendous success. At the end of 1863, the very year in which the ICRC was founded, the first voluntary aid societies – the future National Red Cross or Red Crescent Societies – were set up. On 22 August of the following year, 1864, the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was adopted. This was the source of international humanitarian law.

Thus the ICRC has always had a close and special relationship with international humanitarian law, and to this day has invariably acted in accordance with the successive phases of Henry Dunant’s experience. It has worked on battlefields, and has always sought to adapt its action to the latest developments in warfare. It has then reported on the problems encountered, and on that basis has made practical proposals for the impr ovement of international humanitarian law. In short, it has made a very direct contribution to the process of codification, during which its proposals were examined, and which has led to regular revision and extension of international humanitarian law, notably in 1906, 1929, 1949 and 1977.

This special role of the ICRC is now formally recognized in the Statutes of the International Red Cross and Red Crescent Movement [5 ] , which have been adopted both by the components of the Movement [6 ] and by the States party to the Geneva Conventions, that is, practically all the worlds ’States. [7 ]

Article 5 of the Statutes states that the role of the ICRC is “to undertake the tasks incumbent upon it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law” (Article 5.2c), and also “to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof” (Article 5.2g).

Such are the origins and the current expression of this unique role in the international system played by a private institution. This paper will not dwell further on how that role has been discharged throughout its history; instead it will it consider the significance of the ICRC’s role as “guardian” of international humanitarian law in today’s world.

The various facets of this role are not easy to discern and to delineate clearly and in logical sequence, especially as some of its functions overlap. A rough classification may, however, be proposed:

– the “monitoring” function – i.e., constant reappraisal of humanitarian rules to ensure that they are geared to the reality of conflict situations, and preparing for their adaptation and development when necessary;

– the “catalyst” function – i.e., stimulating, especially within groups of governmental and other experts, discussion of problems encountered and possible solutions, whether such solutions involve changes to the law or otherwise;

– the “promotion” function – i.e., advocacy in favour of the law, helping to disseminate and teach it, and urging States to adopt national measures necessary for its implementation;

– the “guardian angel” function – i.e., defending international humanitarian law against legal developments that disregard its existence or might tend to weaken it;

– the “direct action” function – i.e., making a direct and practical contribution to application of the law in situations of armed conflict;

– the “watchdog” function – i.e., raising the alarm, first among the States and other parties directly concerned in an armed conflict, and thereafter among the international community as a whole, whenever serious violations of the law occur.

We now propose to look at these aspects of the ICRC’s role as “guardian” of international humanitarian law in rather more detail.

 1. THE MONITORING FUNCTION  

This first function is a sensitive and complex one. Whenever there are serious and large-scale violations of international humanitarian law, the law itself tends to get the blame. Such violations should of course rouse the international community to action, but it is important to find out exactly where the problem lies rather than rushing headlong into changing the rules, especially as this is nowadays an extremely arduous, costly and unpredictable process.

An increase in the crime rate in a region does not normally cast doubt on the validity of the criminal law, but it does prompt questions about the me ans available for enforcing the law on the one hand, and about the sociological causes for such a development and possible preventive measures on the other. The same applies to international humanitarian law.

Conversely, the lack of means of implementing the law as it stands should never be offered as an excuse for failing to consider whether it is still geared to modern conditions. Individual situations must be looked at dispassionately and in perspective, the aim being to learn from them and to seek appropriate remedies.

It was the inadequacy of the rules protecting prisoners of war, highlighted by events during the First World War, that led to the drafting of the 1929 Geneva Conventions. It was the tragedy of the Holocaust that largely prompted their revision in 1949, and the addition of a Convention specifically designed to protect the civilian population. The bombing of cities during the Second World War, and later episodes of massive bombing, notably over Vietnam, led to the reaffirmation and development of the rules governing the conduct of hostilities, as codified in the 1977 Protocols additional to the 1949 Geneva Conventions.

Are there at present any good reasons to justify further revision or adaptation of international humanitarian law? This is just where the monitoring function comes in, and it must be said that the ICRC, on account of its operational activities in nearly all situations of armed conflict, is particularly well placed to discharge such a function.

Admittedly, practical experience has shown that there is still room for improvement or clarification of international humanitarian law. To start with, the current rules for the repatriation of prisoners of war could well be less categorical. By calling for immediate repatriation, the intention is to counter the tendency to make prisoners pay the price of procrastination and political haggling. In this respect the rules are p erfectly adequate, for large numbers of prisoners and their families are still suffering the anguish of prolonged and unjustified separation.

On the other hand, the problem of prisoners who refuse to go home is not catered for; the rules overlook the fact that prisoners may be in danger on their return. Too much haste is therefore unwise; the prisoner’s own wishes must be taken into account. But it is not easy to determine what those wishes are because the prisoner may have been subjected to propaganda or pressure, or have been given false or incomplete information. Respecting a prisoner’s wishes, therefore, raises the question of how to determine those wishes, and this enters the realm of philosophy: what is the free will of a young man who is under constant pressure and subjected to systematic propaganda? Ideally, a prisoner who says he does not want to be repatriated should be kept for some time in a neutral environment, but is this a realistic option? Moreover, what should be the status of a prisoner who has refused to be repatriated, and to what protection should he be entitled? In short, the first sentence, so short and peremptory, of Article 118 of the Third Geneva Convention (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”) would undoubtedly be the better for a few “ifs” and “buts”.

In this context, it would be useful to have a clearer definition of the expression “active cessation of hostilities” and the point at which the Conventions no longer apply. The exact implications under international humanitarian law of the agreements reached in the peace process relating to the territories occupied by Israel and for the autonomous Palestinian territories and their inhabitants could well be examined from this angle.

The regulations on the protective emblems recognized by the Geneva Conventions also merit reappraisal. The red crescent emblem has in fact acquired a status equal to that of the red cross, contrary to the letter of the First Convention [8 ] which recognized the red crescent only in the case of countries that were already using it. States party to the Geneva Conventions are now free to choose between the cross and the crescent, and indeed some States have changed from the cross to the crescent [9 ] . The third emblem recognized by the Geneva Conventions, the red lion and sun, is no longer in use, and the existing emblems are not acceptable to Israel or some countries where the population is made up of both Christians and Muslims. [10 ]

These are only three examples showing that in certain respects the Geneva Conventions and their Additional Protocols might well need revision. This applies not only to substantive provisions but also to those relating to application. Universal jurisdiction in regard to war crimes has never functioned properly, and the setting-up of an international criminal court to repress war crimes and crimes against humanity [11 ] would be another reason for re-examining the relevant sections of the Conventions and Protocols. [12 ]

A careful look at these texts, however, shows that they remain valid on the whole and that the difficulties encountered nowadays arise chiefly from the fact that the means and the will to implement them are lacking. The problem is therefore more political than legal.

Part of the monitor’s duties is to say so, for it is pointless to seek the wrong remedies for real ills. A general revision of international humanitarian law would undoubtedly be a lengthy, costly and hazardous undertaking. While it might produce a few useful improvements in some areas, it is equally likely that it would provide certain States with an excuse to renege on vital issues that had previously been accepted. Moreover, the objective of universality which has by now been virtually achieved where the Geneva Conventions are concerned [13 ] , with the Additional P rotocols not far behind [14 ] , and which is essential for rules applicable in armed conflict would have to be pursued for many years in regard to the new rules, with all the efforts of persuasion and the laborious procedures of ratification or accession that this would involve. In other words, the cost of any attempt to revise international humanitarian law, as compared with the effectiveness of such a move, appears far too high at present, especially as the basic principles underlying that law – humanity, impartiality and neutrality – are as valid as ever and certainly still of the utmost relevance.

It is indeed still essential that, in conformity with the principle of humanity, humanitarian action in conflict situations should be inspired only by the desire to help the victims; that, in conformity with the principle of impartiality, such action should treat those victims strictly in accordance with their needs and vulnerability, with no trace of racism or discrimination; and that, in conformity with the principle of neutrality, humanitarian action should keep outside the political arena. Only then will it remain acceptable to all parties to an armed conflict and thus retain its effectiveness.

In the last few years, however, there have been armed conflicts in which certain fundamental humanitarian rules have been deliberately flouted, or State structures have been weakened to the point where there were no longer any authorities in a position to make a commitment and honour it. International humanitarian law has had a rough time in such situations, but it would be jumping to conclusions to think that this was because it was unequal to the task. Obviously situations of this kind call for action by the international community, but they certainly do not justify making basic changes in the law. [15 ]

While this conclusion may be drawn in general terms, the same does not apply to particular rules. In accordance with the mandate ent rusted to it [16 ] and with the procedure for revision set out in Article 98 of Protocol I of 1977, the IC RC consulted the States party and held a meeting of technical experts in 1989 to prepare for the amendment of the annex entitled “Regulations concerning identification”. The decisions taken at the meeting [17 ] were later adopted by the States party to Protocol I.

Another area in which revision was called for and could be effected without opening a Pandora’s box was the rules restricting the use of certain conventional weapons. Protocol I of 1977 reaffirmed and developed the basic principles and rules governing the use of weapons, but precise prohibitions and restrictions were introduced in a separate Convention adopted in 1980 [18 ] , which includes a mechanism for periodical revision. [19 ]

In this field, therefore, a review process was regarded as desirable and the ICRC backed those in favour of it, in particular by organizing seminars of experts on subjects needing examination and taking an active part both in the preparatory meetings and at the Diplomatic Review Conference. Two major issues required attention: anti-personnel landmines and blinding weapons. The ICRC was especially well qualified to talk about mines because of all the work done by its surgeons, and at a subsequent stage by its prosthetists, to help the victims of these weapons. The ICRC has set up prosthetic/orthotic centres in 34 countries and developed new techniques suited to local conditions. Mines cause the most appalling injuries and spare no one; it is impossible to observe the damage they do without feelings of revulsion.

The law on the use of mines having proved inadequate, it had to be re-examined, and the review of the 1980 Convention offered a unique opportunity to do so. The ICRC therefore supported the process by offering its legal expertise and above all its first-hand field experience, and by taking the initiative of organizing groups of e xperts to examine certain aspects of the problem. For example, it brought together a group of military experts whose conclusions placed the military value of mines in quite a different perspective [20 ] . It thereby certainly contributed to the not inconsiderable – but still insufficient – gains made during the review procedure. More will be said of this below.

Discussion of battlefield laser weapons began on an informal basis at the 25th International Conference of the Red Cross in 1986. Subsequently there were technical developments in this field but lasers were not yet being used in armed conflicts. The review of the 1980 Convention was obviously an ideal opportunity to try to ban their use before they ever appeared on the battlefield. On this subject too, the ICRC convened several meetings of experts and published a report on their proceedings [21 ] . These proceedings, the resulting report and intense efforts in terms of dialogue and information were decisive for the successful outcome of the review procedure, which ended with the adoption of a Protocol on anti-personnel weapons causing blindness [22 ] . Above all, the Conference established, probably once and for all [23 ] , the principle that it is unlawful to use blinding as a means of warfare.

It is obviously not our intention to report in detail on all the work done to that end, but rather to show how important it is to seize opportunities that arise, to take the initiative at the right time, to proceed calmly and to prepare one’s case thoroughly.

In short, the monitoring function requires constant analysis of failures to observe international humanitarian law, so as to determine whether they are due to shortcomings in the law and, if so, whether these shortcomings are serious enough to justify the risk and expense of embarking on a revision procedure; and then, if the time seems ripe for revision, taking steps to facilitate it and to highlight the humanitarian dimension o f the problems involved, on the basis of experience gained in armed conflicts.

 2. THE CATALYST FUNCTION  

The second function identified here is that of acting as a catalyst. It is not sufficient simply to take note of problems of application of international humanitarian law; those concerned must be encouraged to think about ways of dealing with them. This second function is, in a way, a corollary of the first. When a real problem crops up on the ground it is not enough to say that it cannot be resolved by revising the law. It is essential to go a step further and seek possible remedies, not – and this is important – in isolation, but drawing on the widest possible range of expert knowledge and experience. In short, international humanitarian law must be transformed into a dynamic force so that it can better serve the interests of those it is designed to assist and protect.

This is no place to dwell on the details of the thinking and discussion on this subject, but some points might be mentioned as an illustration.

When, after the Rio Conference [24 ] , the environment was justifiably in the headlines, many initiatives were launched for its protection in time of war. It was even proposed that there should be a fifth Geneva Convention on the subject [25 ] . Full consideration of the matter was clearly necessary, and the ICRC therefore accepted a mandate conferred on it by the UN General Assembly [26 ] . It brought together a number of experts whose findings were summarized in reports submitted to the Secretary-General and examined at the 1992 and 1993 sessions of the UN General Assembly [27 ] . This work and the resulting reports certainly showed where the real problems lay and, incidentally, were useful in drafting a model set of rules to be observed by the military for the protection of the environment in time of war. [28 ]

Another example of this kind of constructive thinking is the effort made to clarify the obligations incumbent on armed forces deployed either directly by the UN or by member States in pursuance of resolutions adopted and mandates given by the Security Council. This exercise revealed that there was frequently gross misunderstanding of the very meaning of international humanitarian law. Some found it inconceivable that forces deployed in such circumstances could be under any obligation arising from that body of law, and regarded it almost as an insult to the UN to suppose otherwise. It took much patient work to pinpoint the various situations in which UN or UN-authorized forces might be involved. While it was quickly recognized that coercive operations of the Gulf war type were fully subject to international humanitarian law, it was much harder to identify the obligations under the law arising from operations on the border-line between peace-keeping and peace-enforcement, as in the former Yugoslavia. Without going into details of all possible kinds of UN intervention, the ICRC’s analysis convinced all concerned that armed forces deployed in pursuance of UN resolutions could have obligations under international humanitarian law, that they should in their own interests recognize its applicability in certain circumstances, and that UN forces should in any event receive training in this regard. After drawing up several preparatory reports and holding a seminar attended by experts in international humanitarian law, senior UN officials and high-ranking military officers who had led UN operations [29 ] , the ICRC prepared a draft entitled “Guidelines on respect for international humanitarian law by UN forces”, now being finalized in close cooperation with the UN Secretariat, which will pass it on to States in due course.

A third example relates to displaced persons. This question, focusing mainly on persons displaced within their own countries, has already been amply d iscussed in many fora because of the magnitude of the problem in humanitarian terms. The Commission on Human Rights has even appointed a Special Rapporteur to follow the matter [30 ] . The numerous debates and studies on the subject have, however, given rise to some confusion. It was, for example, important to make clear that the great majority of displaced persons have fled their homes because of armed conflict and are therefore covered by international humanitarian law. Of course this does not invalidate the work done, because on the one hand not all displaced persons are covered by international humanitarian law, and on the other population movements give rise to specific humanitarian issues which need examination. The main thing, however, was to harmonize provisions or recommendations affording displaced persons better protection with the existing rules. Once again, therefore, the ICRC took the lead by holding a seminar for experts (to which it invited the aforesaid Special Rapporteur, among others) to discuss how the problem related to existing law and to seek possible solutions not only in terms of rules but also in regard to cooperation between institutions. [31 ]

Any account of the ICRC’s work under this heading would be incomplete without mention of the major study the organization is about to undertake to identify the rules of international humanitarian law which form part of customary international law. This study was requested by the 26th International Conference of the Red Cross and Red Crescent [32 ] , and to be of any value must necessarily be far-reaching. Indeed, it is impossible to prejudge the practice and opinio juris of States without verifying these points, and this requires an extensive network of correspondents, great expertise and flawless coordination. The importance of the study is widely recognized [33 ] . It should also be – and this is not its least merit – an ideal opportunity to give new impetus to thinking on int ernational humanitarian law by involving specialists and research workers from all over the world.

Acting as a “catalyst” is therefore an important function, and the examples given above are far from exhaustive. Before leaving the subject we should mention the links the ICRC has forged within the International Red Cross and Red Crescent Movement; with international organizations concerned with matters not far removed from international humanitarian law; with academic institutions interested in the subject; and lastly with the many non-governmental organizations whose work in theatres of armed conflict and other emergencies has led them to undertake a critical analysis of such activities.

Within the International Red Cross and Red Crescent Movement the ICRC shares its thinking with experts of the National Societies and their International Federation. The developments in the law outlined above were preceded by preparatory meetings with these experts, and such consultations also take place in regard to points of international humanitarian law submitted to International Conferences of the Red Cross and Red Crescent. In short, the ICRC systematically involves the National Societies in this task, and several of them carry on the good work in their own countries.

As regards international organizations, it is of course with those whose attitude or action is nearest its own that the I CRC most readily enters into relations. For example, it is in regular contact with the Office of the United Nations High Commissioner for Refugees (UNHCR) for operational reasons, because the two organizations often work side by side in the field, and also to evaluate past operations and plan future ones, because the UNHCR’s role with regard to refugee law is similar to the ICRC’s role with regard to international humanitarian law. The ICRC has established similar regular and fruitful relations with many other organizations. Some of the most important of these are:

(a) UNESCO, which is also the guardian of a Convention (the 1954 Convention on Cultural Property) forming part of international humanitarian law, and whose function and recognized competence in the realm of education are of great interest in another connection, as will be seen below;

(b) the Centre for Human Rights, because human rights law is so close to international humanitarian law and because of the similarity of much of the two institutions’ research, especially studies on various themes entrusted to special rapporteurs by the Commission on Human Rights;

(c) the UN Department of Humanitarian Affairs, which in pursuance of its mandate to facilitate the coordination of emergency humanitarian operations [34 ] studies problems closely resembling those encountered in the application of international humanitarian law;

(d) the UN International Law Commission, whose codifying function also leads it to study problems similar to those of international humanitarian law, as in the case of the draft international code for the repression of war crimes and crimes against humanity. [35 ]

As for institutes and universities interested in international humanitarian law, it would evidently be impossible to list them all here. The ICRC, however, certainly has the will to encourage the establishment and expansion of the widest possible network of such institutions, and to engage with them in a thorough investigation of problems relating to this body of law. One institute at least must be mentioned in this connection, namely the International Institute of Humanitarian Law in San Remo. The ICRC was associated with its founding in 1975 and has cooperated with it ever since. The Institute’s annual Round Tables are prepared and held in very close cooperation with the ICRC, and also with UNHCR and the International Organization for Migration (IOM). The Round Tables have been t he scene of informal discussion on subjects of great current interest, such as conflict prevention (1994) [36 ] , assistance to and protection of the most vulnerable groups (1995) [37 ] , and armed conflicts in failed States (1996) [38 ] . The ICRC also cooperated very closely with the Institute in a major project to determine the state of international humanitarian law in relation to war at sea, which led to the publication in 1995 of the San Remo Manual on international law applicable to armed conflicts at sea . [39 ]

This is not the place to enumerate all the non-governmental organizations (NGOs) with which the ICRC discusses matters of mutual interest; but mention must be made of those which in the last few years have conducted large-scale field operations or contributed valuable thinking in the area of international humanitarian law or related areas. The best-known of these are Amnesty International and Médecins sans frontières. The ICRC has regular exchanges of views with these two agencies and is shortly to hold a meeting with their leadership [40 ] to discuss problems relating to the application of international humanitarian law.

The above outline gives an idea of the scope of the “catalyst” function, which involves enlisting experts in many disciplines to contribute, on the basis of their practical experience and their thorough knowledge of the existing rules, the fresh thinking that is indispensable for the application, interpretation and development of international humanitarian law, to resolve problems and prepare for future developments.

 3. THE PROMOTION FUNCTION  

There is no hard-and-fast dividing line between the “catalyst” function and that of “promotion”. Admittedly, generating interest in the difficulties that arise in apply ing international humanitarian law often serves to make this body of law – about which, alas, little is known in many circles – more familiar and better understood. It is this latter aim that is the purpose of promotion, which in its turn has several aspects.

First of all, States have to be encouraged to ratify the instruments they have drawn up at diplomatic conferences. Indeed it is vital, especially where armed conflicts are concerned, that all parties should be governed by the same rules. Some States might be unwilling to renounce means of warfare forbidden by a treaty if they were not sure that their potential opponents in an armed conflict would also renounce them. Everything possible must therefore be done to ensure that the treaties of international humanitarian law are universally accepted, and that calls for a great deal of effort.

To start with, the reason for the existence of the rules, some of which are admittedly complicated, has to be explained time and time again to members of parliament, ministers, top civil servants, high-ranking military officers and all the other officials who have to adopt the treaty or make recommendations in this respect. That means finding people in the countries concerned who are strongly in favour of the treaty and are prepared to defend it and keep drawing attention to its existence (the diplomats who helped to draft it may be long gone, abroad or to meet their Maker: accession and ratification can be a long process). But sometimes the question of ratification may have to be purely and simply rescued from oblivion. The international obligations of many countries are so extensive and complex that their overworked and understaffed civil services cannot cope with the paperwork. The ICRC’s job is then not so much to answer complicated legal and political arguments as merely to convince the government and the upper reaches of the civil service, by persuasion and perseverance, that the matter is important enough to b e exhumed earlier than others. One of the reasons why the 1949 Geneva Conventions are now almost universally recognized, and the 1977 Protocols additional thereto are well on the way to being so, is that the ICRC, acting through a delegate with special responsibility for the subject and through its delegations abroad, has constantly put the issue on the table. In this it has had invaluable help from the National Red Cross and Red Crescent Societies and from the Swiss government which, as depository of the treaties, has assumed some responsibility for their promotion. [41 ]

A second aspect of the function of promotion – one which has gained in importance lately – is to encourage implementation of international humanitarian law on the national level by means of legislation and other measures. Treaties of international law are often “forgotten” after they have been drafted and signed, and unfortunately this may also happen even when they are theoretically in force. So a number of measures have to be taken in peacetime. Accordingly, the ICRC has for many years past systematically sent States that have decided to participate in the Geneva Conventions or the Protocols additional thereto a note reminding them of the immediate obligations this entails, in peacetime [42 ] . Whether the note has any effect depends on the follow-up that can be given. Thanks to the setting-up of regional delegations, States have been reminded more frequently of this duty, and a certain momentum has been created at regional level, in particular by holding seminars at which officials from various States have been able to compare their experiences [43 ] . The interest and backing of academic experts, members of National Red Cross and Red Crescent Societies and others have also been invaluable.

The matter was carried a stage further in 1995, when governmental experts, recognizing that the ICRC could render great services in this respect, recommended that it step up its efforts to persuade St ates to incorporate international humanitarian law in their domestic law. The 26th International Conference of the Red Cross and Red Crescent, at which the great majority of States were represented, confirmed this recommendation by consensus. The ICRC accepted the challenge by setting up an Advisory Service to coordinate and promote such efforts, and to collect full documentation on domestic legislation adopted in this area [44 ] . Since national measures generally involve several ministries (Justice, Education, Defence and Foreign Affairs), it was recommended that interministerial committees be formed, and several, some including representatives of National Red Cross and Red Crescent Societies, which have a role to play in this regard, have already been set up. In addition, the ICRC has taken the initiative, through its brand-new Advisory Service, of convening a meeting of heads of existing or nascent national committees to share their experiences and make a preliminary assessment of the methods used. [45 ]

The third aspect of the function of promotion worth mentioning is assistance in disseminating international humanitarian law, that is, in making it known to all concerned, which in practice means nearly everyone. This is a treaty obligation for the States party to the Geneva Conventions, and also figures in the two Additional Protocols of 1977 [46 ] . It is therefore included in the national measures States have to take in peacetime, but deserves special mention because of the great efforts required and the vital importance this task has assumed.

Knowledge of international humanitarian law should have both an educational and a preventive effect. It is therefore necessary and right to teach the basic rules at school, even to the youngest children. It may seem absurd to teach them how to behave in case they ever they have to fight in a war, but this apparent objection does not bear scrutiny. The message that has to be conveyed is that certain essential principles must b e observed at all times, even in war; and that message must focus on the principles of humanity (meaning compassion, empathy with the vulnerable and those in distress) and impartiality (respect for any and every individual, due regard for his or her dignity, and recognition of the fact that all persons are equal in the eyes of the law). These are fundamental human rights and should be taught as a complement to human rights instruction.

However, human rights themselves are not systematically taught in schools. The earlier one wants to propagate the message of international humanitarian law, the more important it is to associate it with human rights. This, therefore, is an area where cooperation and complementary action with the major organizations involved in such activities, such as UNESCO, is more vital than anywhere else.

While the concepts can be studied from a wider viewpoint, they can be implemented effectively only at national level. Cooperation with Ministries of Education is therefore necessary, for two reasons. The first of these is that the basic principles of international humanitarian law have to be taught as part of the general curriculum; indeed, it has been pointed out that they need not be given as a special course but can be incorporated in other subjects such as languages, history and geography [47 ] . The second reason is that even the simplest messages have to be tailored to the pupils’ social and cultural environment, and for this there has to be cooperation with local authorities and community leaders. The ICRC therefore tries to plan teaching programmes with Ministries of Education. A recent agreement reached with the Russian Federation is very encouraging in this respect and could open the way to a wide range of such activities all over the world.

The basics of international humanitarian law can, then, be taught to even the youngest children; but that is not enough. The public at large should be made aware of these rules, and the media can play a key role in this regard by referring to fundamental values when reporting and commenting on current events. The media can also have a bad influence, as the conflicts in the former Yugoslavia and Rwanda have all too tragically shown. Dialogue and cooperation with the media are therefore essential, and are especially vital in conflict situations, where the purpose of humanitarian action and the implications of international humanitarian law have to be explained so as to safeguard staff and activities.

International humanitarian law will never be properly understood and assimilated without constant and thorough reflection. It seems essential that it be taught at universities, whether as a separate discipline complementing instruction in human rights or as part of courses on international law. For academic circles will never take any real interest in a subject unless it is steadily developing and lends itself to research and reflection, which must not be confined to faculties of law. Humanitarian action, like some aspects of international humanitarian law, may and indeed should be discussed in other faculties – those of medicine and sociology, for example. The teaching of international humanitarian law at universities, and also – perhaps above all – critical and forward-looking thought on the subject, appear indispensable if future national leaders in government and other spheres are to be aware of the implications.

Finally, it is quite obvious that the armed forces, which have primary responsibility for the application of international humanitarian law, must be taught the subject systematically and in a manner tailored to each echelon. Here too the aim must be to create an impetus, to remind States and the top level of the armed forces that they are bound by treaty to provide such teaching, and to convince them that it is in their own interest. Indeed, all too often soldiers regard international humanitarian law as a hindranc e that can even prevent them from winning the war. Not only is this untrue, but a case can probably be made for the contrary view: an army that respects humanitarian law is more efficient because of its superior cohesion and morale [48 ] . Soldiers who go unpunished for torture, pillage and rape are bound to respect their officers the less for such licence. Authority and discipline will suffer. Many soldiers will wonder what they are fighting for, and whether they are waging a just war. Moreover, as soldiers themselves often argue, a unit that treats wounded and captured enemy soldiers in exemplary fashion tends to cool the enemy’s fighting spirit. Realizing that the men up against them are not the devils they have been said to be, when the worst comes to the worst the enemy troops will not fight as fiercely as they would if they knew that capture meant torture and death. Moreover, although obligations under international humanitarian law are not subject to reciprocity [49 ] , the way soldiers treat enemy wounded and prisoners obviously affects the way they themselves are treated by the other side.

Convinced as it is of this, the ICRC tries to convince others by means of a far-reaching programme directed at political leaders (Ministers of Defence and even Heads of State or Government) and high-ranking military officers (commanders-in-chief, chiefs of staff and officers in charge of training). It arranges for senior officers to attend centralized training courses, often run by the International Institute of Humanitarian Law in San Remo, and regional seminars; helps to draw up national programmes and arranges for those concerned to take part in certain courses where necessary; and prepares, or helps to prepare, tools designed for the task. This programme has expanded considerably and the staff involved, especially local staff working in the ICRC’s regional delegations, have greatly increased in numbers. The ICRC has accordingly stepped up its recruitment and has also formed a pool of offic ers from several countries who, after thorough training and with the agreement of their national authorities, devote certain periods of the year to training activities. In addition, at the request of certain military authorities, special training programmes are set up for soldiers serving in armies dealing with internal disturbances, a common occurrence nowadays. Indeed, the problems arising in such situations are different from those soldiers have to face in armed conflicts, and the humanitarian rules are not the same. [50 ]

The ICRC is of course also anxious to provide training in international humanitarian law for rebel forces, and does all it can to get in touch with their leaders. In the last few years it has had to work out new ways of getting the basic message of international humanitarian law across to all those bearing arms in the midst of conflict, even disorganized forces and fighters practically left to their own devices [51 ] . Although this is not easy, it is vital: the very possibility of conducting humanitarian activities in such circumstances depends on it.

Clearly, then, training and dissemination account for much of the “promotion” aspect of the function of guardian of international humanitarian law. The only tactics open to the ICRC are stimulation and encouragement as far as reflection is concerned, and creation of a sort of snowball effect in regard to training.

 4. THE “GUARDIAN ANGEL” FUNCTION  

The choice of categories in this paper is of course rather arbitrary and subjective and it may well be asked what is meant by this “guardian angel” function. It means, as the phrase implies, watching over the law itself to protect it from those who may undermine or weaken it, either because they disregard it or because they are too close to it. This function is of course connected with the monitoring function and may serve to promote that activity, but it has characteristics of its own and needs constant attention, as the following recent examples show.

When the UN Convention on the Rights of the Child was being drafted, the proposed provisions concerning the protection of children in war fell short of those contained in the Geneva Conventions and the Protocols additional thereto. This inconsistency in the rules would certainly have weakened international humanitarian law, and delegates of governments and the ICRC had to intervene to draw up an acceptable text and introduce a saving clause to safeguard the gains made by international humanitarian law. [52 ]

A second example of this necessary “protection” of humanitarian law to preserve the gains already made can be found in the steps taken to afford better protection for displaced persons, already mentioned above. In this context attention had to be drawn to the fact that persons displaced in armed conflicts are covered by international humanitarian law and are part of the civilian population as a whole, which must be protected from the effects of hostilities. It was particularly important to point this out because the protection of displaced persons can in no way be considered as unconnected with the protection of the rest of the civilian population. Displaced persons are usually resettled in places where living conditions are already very poor. Their arrival makes the situation worse, and action must be taken to prevent or at least reduce any resulting tension between the local population and the displaced persons. Here again, therefore, it was quite justified to draw attention to the existence of international humanitarian law and its approach to the matter before any move was made to draft rules which might have failed to take its provisions into account.

A third example is offered by the Convention on the Safety of United Nations and Associated Personnel, drafted and adopted by t he UN [53 ] . Here too the idea was prompted by a real problem which certainly called for examination and discussion. Yet again, however, it was necessary to defend international humanitarian law, whose very basis might have been challenged. This body of law is of course founded on the idea of separating responsibilities relating to the underlying causes of a conflict from those relating to the conduct of hostilities. This fundamental distinction was threatened by the proposal to penalize all attacks on UN staff, notwithstanding the fact that UN or UN-authorized forces might be engaged in armed hostilities in accordance with Articles 42 ff. of the United Nations Charter. In such situations, penalizing the soldiers of the country in which UN forces were deployed merely because they opposed those forces would discourage them from respecting international humanitarian law – what is the point, they might think, of behaving decently if you are classed as a criminal anyway? It is therefore essential that the soldiers be judged for offences against the law and not for the political decisions of their leaders, for which they cannot be held responsible. A great deal of argument was necessary before this essential distinction was incorporated in the Convention. [54 ]

There have been many other cases in which the gains made by international humanitarian law have been in danger of being undercut, usually, it is true, on account of ignorance rather than malice. Take, for example, the concept of mercenaries in the International Convention against the Recruitment, Use, Financing and Training of Mercenaries of 4 December 1989 [55 ] ; or the International Law Commission’s concept of “serious” war crime, which threatened to weaken the very concept of “war crime” [56 These few examples serve to show that international humanitarian law is unfortunately still not fully understood even in the diplomatic circles that draw up rules overlapping its provisions. It is therefore in real need of a guardian angel that will fly to its rescue whenever necessary.

 5. THE DIRECT ACTION FUNCTION  

This is by far the most important of the ICRC’s functions, and much could therefore be said of it. Henry Dunant began by taking action on behalf of victims of conflict, and direct action to help them is still the ICRC’s top priority. The ICRC is on the scene of every conflict; it visits prisoners to ensure that they are detained in acceptable conditions and can communicate with their families, helps to care for the wounded, and endeavours to protect the entire civilian population from the effects of hostilities, which are taking an increasing toll among civilians. This function has assumed vast proportions over recent years, ever since the Nigeria-Biafra war. Indeed, the great majority of conflicts have occurred in countries most of whose inhabitants, hardly able to make a living even at the start of the conflict, have been reduced to destitution and dependence. The ICRC has consequently acquired considerable expertise in matters as diverse as aid to detainees, tracing the missing, war surgery, rehabilitation of amputees, public health, sanitation, nutrition and supply of safe water, not to speak of logistics, purchasing, transport and warehousing. Its experience has prompted it to think hard and long about emergency operations and their effects in the short and longer term not only on public health but also on the social and cultural fabric of the country concerned; about taking preventive action during the conflict itself to ensure that the population does not become permanently dependent upon aid and to forestall an escalation of violence and hatred; and about the best ways of propagating the message of international humanitarian law in wartime as well in peacetime, as already mentioned above. All this obviously deserves more space that can be given here, but a more precise question can be addressed, that is, the extent to which the role of taking direct action in armed conflicts coincides with that of guardian of international humanitarian law.

International humanitarian law clearly sets out the rights and duties of parties to, and victims of, armed conflicts. The duty of combatants is to spare the civilian population and the wounded, and to treat prisoners well. As for victims, they all have a right to humane treatment; the wounded are entitled to be cared for, prisoners to be detained in good conditions, and the population to enjoy the means essential to its survival. Therefore the ICRC’s field operations are clearly part of its function as guardian of international humanitarian law, because their purpose is to ensure that its rules are applied in practice. The ICRC does this in two ways. The first is to draw the parties’ attention to their obligations as regards the treatment of victims and means and methods of waging war, and to point out any failure to observe these obligations. The second is to protect victims and give them direct assistance to remedy the inevitable shortcomings observed by ICRC delegates in such circumstances.

By what right may the ICRC remind parties to an armed conflict of their obligations – to lecture them, so to speak? That right is conferred on it by international humanitarian law itself, and hence by all the States that drew up and adopted that law. The law provides for its own application “with the co-operation and under the scrutiny” of Protecting Powers [57 ] , and asks the ICRC to offer its services if there are no States assuming that function. It also gives the ICRC a right of initiative in taking any action it considers appropriate to help victims of conflict. As the Protecting Powers system has almost never functioned [58 ] , in practice the ICRC has had to bear the whole burden of this role of scrutiny. For it to be accepted, coming from what is not, strictly speaking, an international organization but an organization over which governments have no hold, this role must obviously be carried out with impeccable honesty and within very definite limits. It is therefore very important that in a conflict situation the ICRC should not assume a moralizing attitude to anything and everything. It must restrict the scope of its message to international humanitarian law, a vast enough subject in itself. This is precisely the meaning of the principle of neutrality, a principle often misunderstood by the public. A firm and clear stance must be taken against violations of international humanitarian law and failures to apply its provisions; neutrality imposes no restraint in this regard. It does, on the other hand, oblige the ICRC to stand apart from the political problems underlying the conflict, because it is obvious that to enter into discussion of these would inevitably mean a loss of confidence and credibility that would jeopardize dialogue and action aimed at promoting respect for humanitarian law. In short, humanitarian matters must keep clear of politics, just as politics must not try to interfere in humanitarian matters.

This first approach, consisting of making contact with all parties to armed conflict and persuading them to comply with the law, requires much patience and perseverance, especially when it comes to reaching the dissidents in internal conflicts. The tangible results obtained may of course seem disappointing if measured only against the yardstick of the violations that take place despite such efforts, but all too often the

considerable successes achieved remain unacknowledged. This is still an essential means of implementing international humanitarian law which is now very widely accepted and recognized as the most original tool available for the purpose. In addition, it often makes the ICRC the only remaining link between the parties, who sometimes wish to use this link for negotiations going beyond problems relating to international humanitarian law. In such circumstance s the ICRC does not rule out facilitating political negotiations and thereby helping to restore peace, as long as it does not itself have to become involved in the basic issues. [59 ]

The second aspect of direct action, that is, practical assistance to victims as outlined above, involves highly complicated operations and raises problems in terms of choices and priorities. The ICRC needs to have an overall picture of all situations so that it can focus its efforts where they are most needed. Public opinion is influenced by situations given prominence by the media and governments are not unaware of this. The result is that some operations attract funds and a host of humanitarian organizations, some reliable and some less so, while others remain outside what has been called the “charity business”. It is therefore the ICRC’s duty to draw attention to operations that are no longer in the headlines, either because they are conducted in remote places or because they arise from situations that stagnate and fester with no newsworthy developments. Defending the forgotten victims of such situations is certainly one of the duties of a guardian of international humanitarian law which, indeed, has to extend its protection without discrimination to all those within its purview. There are so many humanitarian organizations nowadays that sound consultation mechanisms are essential; it would be unpardonable to waste energy and funds when needs are so immense and so far from being satisfied. This is no place for detailed examination of this complex problem, but it has to be mentioned because working for greater efficiency of humanitarian action also contributes to the application of international humanitarian law. Hence the ICRC’s efforts to establish a dialogue with the principal organizations engaged in emergency humanitarian aid programmes, with a view to defining a common code of ethics that will make their activities more effective and enhance their credibility. [60 ]

In short, the ICRC has to assess all the parameters of situations that it obviously cannot handle unaided, so as to identify areas requiring the cooperation of other members of the International Red Cross and Red Crescent Movement (being able to count on National Societies in nearly all countries is a major asset here, insofar as they are strong and efficient); areas in which it has to rely on its own efforts; and lastly those in which it must operate in close consultation with other organizations, governmental or non-governmental, so as to seek complementary action where this is thought necessary.

 6. THE WATCHDOG FUNCTION  

As stated above, the ICRC sees the work it does to encourage parties to armed conflict to comply with international humanitarian law as part of its “direct action” function. This work is indeed closely interrelated with field operations and the observations made during those operations. But many examples show that, even when such encouragement is combined with direct ICRC action and complementary activities by other players, there are still serious shortcomings and grave breaches of international humanitarian law.

This is where the watchdog function comes in, in the sense of sounding the alarm.

The ICRC has often been blamed for failing to speak out when it should and for not doing enough to make the international community aware of unacceptable situations. This was the main criticism levelled at its conduct during the Second World War, conduct which has been closely scrutinized through documents in the organization’s archives and has been the subject of several publications [61 ] . The matter will not be further explored here, but it is interesting to consider briefly what the watchdog function now comprises.

Experience has led the ICRC to adopt a number of policy guidelines governing the manner in which is reacts to breaches of international humanitarian law [62 ] . The restraint it has traditionally observed in this regard has been the most frequent source of misunderstanding concerning the ICRC, being wrongly ascribed to its principle of neutrality. This shows a misapprehension of the principle. In fact, the ICRC’s only concern in relation to breaches of international humanitarian law is to take the most effective action possible – to do everything it can to spare the victims from having to suffer such breaches any longer. It is quite true that the best way of doing this is not necessarily to start with a public denunciation; the ICRC prefers to begin by establishing a dialogue with the parties concerned. It is also important to have reliable information before making accusations. The ICRC exercises this restraint because it wants to maintain its access to the victims. Making accusations before holding talks with the authorities, and, worse still, basing those accusations on unreliable information, would be a sure way of destroying the confidence of the authorities with which the ICRC has to work. Generally, therefore, only if its dialogue with the authorities remains fruitless does the ICRC appeal to the international community, believing that this is the best way to get things moving. Sometimes, of course, denouncing the authorities concerned involves the risk of bringing the whole operation to an end, either because the ICRC’s presence might be declared undesirable or because its delegates would no longer be safe. So the ICRC comes to a decision only once it has thoroughly reviewed and assessed the matter, the overriding consideration being the interests of the victims in the short term and thereafter. This does not necessarily mean that it is a slow process; where time is of the essence, for example in the event of prohibited bombing or shelling, the ICRC ca n act in less than twenty-four hours. [63 ]

Having taken the decision, the ICRC puts it into effect first and foremost on the basis of international humanitarian law, reminding all States party to the Geneva Conventions of their collective obligation to “ensure respect” [64 ] for the Conventions. The way in which this reminder is issued and above all complied with, that is, the way in which it is decided what practical action is required to convince the parties concerned that they have to put a stop to violations, raises a host of questions that cannot be dealt with in a few lines and will therefore not be considered here. [65 ]

The persistence of certain violations of international humanitarian law is no longer the ICRC’s only or even its main reason for appealing to the international community. Indeed, the very wide media coverage of practically all conflicts means that very few violations remain hidden for long and a reaction from the ICRC is rarely called for. And yet there are situations in which it is simply no longer possible to conduct humanitarian activities in all or part of the territory affected by an armed conflict. Nowadays this scenario can be seen in two types of situation.

The first is where the parties to the conflict or at least one of them reject the basic principles of international humanitarian law because those principles do not suit their purposes. This is the case in conflicts based on racism and exclusion, especially where genocidal tendencies emerge; there is obviously no room for humanitarian action when the aim is quite simply to exterminate a race or ethnic group. Exclusion for the purpose of “ethnic cleansing” is also basically contrary to the essential principles of international humanitarian law. That is why the humanitarian activities conducted in the former Yugoslavia, despite their enormous scale, suffered serious setbacks and have left a bitter taste. [66 ]

The other situations in which humanitarian action has reached its limits are those where State structures are disintegrating. Both internati onal humanitarian law and humanitarian activities depend on the possibility of dialogue with authorities which are in a position to honour the commitments they make. When every vestige of authority has disappeared, conflict becomes completely unrestrained, and anarchy and mere banditry take the place of organized hostilities in which at least some principles are respected. Here too, humanitarian action can go no further, for it would be unthinkable to risk delegates’ lives deliberately in circumstances where there is no respect for anything. It was this type of problem that prompted the ICRC to withdraw its delegates from Liberia.

In both of the cases described above, the ICRC must play its “watchdog” role. It must warn the community of nations, and especially the UN Security Council because of its peace-keeping and peace-making role, that the ICRC can do little or nothing in the prevailing circumstances. The magnitude of the problems is far beyond the scope of humanitarian aid, and it is the duty of the ICRC to say so lest humanitarian action become an excuse for political inaction. In such situations, which are fortunately exceptional, all that can be done is to hand over to the politicians.

It must be said that nowadays denunciation often does more to bring the denouncer into the limelight than to make any real improvement in the situation. It is no longer enough merely to inform; those concerned have to be placed squarely before their responsibilities. The watchdog must bark intelligently.

 CONCLUDING REMARKS  

The aim of this article is to give an idea of the magnitude and complexity of the function of guardian of international humanitarian law which the international community has entrusted to the ICRC. The categories chosen to illustrate that function are of course subjective. No matter; they are only a means of describing all its aspects as comprehensively as possible.

The very magnitude and complexity of the task could be discouraging. Not at all: a guardian is not a guarantor, and the ICRC must not and cannot feel responsible for every violation of international humanitarian law. That would be a burden too heavy to bear. On the contrary, the role of guardian is an invaluable complement to humanitarian action in that it generates constant thought about the meaning of such action and how to make it more effective.

Moreover, the role of guardian is not a lonely one. More than ever before, it has to be seen as a force for mobilization, constantly defending humanitarian values in the heat of crises when they tend to be forgotten – in wartime – and insisting on their importance when no one wants to think of them – in peacetime.

But above all, the role of guardian of international humanitarian law should be regarded as an act of faith. It would be intolerable to work in the midst of conflict, surrounded by the horrors of war, without hoping for a better future and without faith in humanity. The guardian of international humanitarian law must also stand by those who in spite of everything and even when things are at their worst are determined to believe in and to defend the values on which that law is built. The author is accordingly very pleased to make his modest contribution to this collection in honour of an eminent figure who has defended those values against all odds, and whose attitude shows us that a guardian simply has no right to feel discouraged.

Today the value of the fundamental principles of international humanitarian law goes beyond their original scope and significance. Humanity in war, compassion for the victims, and impartiality, meaning no adverse distinction based on race, ethnic origin, religion, social class or any other factor, can and must be adopted as basic values in peacetime too. Surely respect for every human being, and compassion for those who suffer, are values on which the future of the world must be built. By defending these values even in war, the guardian of international humanitarian law is also combating the feelings of helplessness and fear that make peoples indifferent to each other and drive them into isolation.

In spite of everything, and sometimes in spite of everyone, the guardian of international humanitarian law must look to the future with confidence.

 Notes:  

* Contribution by Yves Sandoz to the “Mélanges Sahovic” published in the Yugoslav Review of International Law, 1996.

** Publication out of print : The International Committee of the Red Cross as guardian of international humanitarian law , ICRC, Geneva, 1998, 32  pp., 16 x 23 cm, ref. 0700

1. See Pierre Boissier, From Solferino to Tsushima: History of the International Committee of the Red Cross , Henry Dunant Institute, Geneva, 1985, p. 54 ff.; François Bugnion, Le Comité international de la Croix-Rouge et la protection des victimes de la guerre , Geneva, ICRC, 1994, p. 11 ff.

2. On these principles, see Jean Pictet, Red Cross Principles , ICRC, Geneva, 1956; and The Fundamental Principles of the Red Cross , Commentary, Henry Dunant Institute, Geneva, 1979.

3. Henry Dunant, A Memory of Solferino , ICRC, Geneva, 1986 edition.

4. See Bugnion, op.cit., p. 78 ff.

5. These Statutes are rep roduced in the Handbook of the International Red Cross and Red Crescent Movement, 13th ed., ICRC/International Federation, Geneva, 1994, pp. 415-432.

6. These components are the International Committee of the Red Cross, the National Red Cross and Red Crescent Societies (currently numbering 170), and the International Federation of Red Cross and Red Crescent Societies.

7. There are at present 188 States party to the Geneva Conventions.

8. See Art. 38 of the First Geneva Convention; also François Bugnion, The emblem of the Red Cross: A brief history, ICRC, Geneva, 1977; and the articles by Yves Sandoz, François Bugnion, Habib Slim, Antoine Bouvier and Michael A. Meyer in a special issue of the International Review of the Red Cross (IRRC) , No. 272, September-October 1989, devoted to this subject.

9. Malaysia and Bangladesh.

10. Resolution 3, para. 4 (d), of the 1995 Council of Delegates accordingly asked the International Red Cross and Red Crescent Movement to give the matter further thought. See IRRC , No. 310, January-February 1996, p. 143.

11. This is now being done by the UN General Assembly. See resolutions 827 of 25 May 1993 and 955 of 8 November 1994 instituting ad hoc tribunals for the former Yugoslavia and Rwanda respectively; Report of the International Law Commission on the proceedings of its 48th session, May - July 1996, doc. A/51/10; and Report of the working group on a draft statute for an international criminal court, UN General Assembly, March-April and August 1996, doc. 22/A/51/22.

12. Especially Art. 49/50/129/146 common to the four Geneva Conventions, and Arts. 75, para. 7, and 85 of Protocol I.

13. See footnote 7 above. Only Eritrea, the Marshall Islands and Nauru are still not party to the Conventions.

14. At 1 October 1996, 146 States were party to Protocol I and 138 to Protocol II.

15. On this point, see Toni Pfanner, “Le rôle du Comité international de la Croix-Rouge dans la mise en œuvre du droit international humanitaire”, in: Le droit face aux crises humanitaires: de l’efficacité du droit international dans les conflits armés , European Communities Official Publications Office, Luxembourg, 1995, pp. 177-248.

16. Article 98, paras. 1 and 2, asks the ICRC to consult States regularly as to whether the Annex needs to be reviewed and, if they so wish, to convene meetings of experts to prepare amendments.

17. See the preface to the 2nd edition of the Manual for the use of technical means of identification by hospital ships, coastal rescue craft, other protected craft and medical aircraft , by Gérald C. Cauderay and Antoine Bouvier, ICRC, 1995. The new Annex I came into force on 1 March 1994.

18. The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, adopted in Geneva on 10 October 1980.

19. See Art. 8, especially para. 3 (b), of this Convention.

20. Anti-personnel landmines: Friend or foe? A study of the military use and effectiveness of anti-personnel mines , a study commissioned by the International Committee of the Red Cross, Geneva, 1996.

21. Blinding weapons: Reports of the meetings of experts convened by the International Committee of the Red Cross on battlefield laser weapons 1989-1991 ; Louise Doswald-Beck ed., ICRC, Geneva, 1993.

22. Protocol on Blinding Laser Weapons (Protocol IV), adopted on 12 October 1995 (UN/CCW/CONF.I/7).

23. See, for example, Louise Doswald-Beck, “New Protocol on blinding laser weapons”, IRRC , No. 312, May-June 1996, pp. 272-299.

24. United Nations Conference on the Environment and Development (Rio de Janeiro, 3–14 June 1992).

25. See Antoine Bouvier, “Protection of the natural environment in time of armed conflict”, IRRC , No. 285, November–December 1991, pp. 567–578; and Environmental protection and the law of war: A fifth Geneva Convention on the protection of the natural environment in time of armed conflict? Glen Plant, London, 1992.

26. See Antoine Bouvier, “Recent studies on the protection of the environment in time of armed conflict”, IRRC, No. 291, November–December 1992, pp. 554–566.

27. Meeting of experts on the protection of the environment in time of armed conflict, Geneva, 27 – 29 April 1992: Report on the work of the meeting, Geneva, September 1992, submitted under Item 136 on the agenda of the UN General Assembly (Sixth Committee), which led to resolution A/47/37 of 25 November 1992. Meeting of experts on the protection of the environment in time of armed conflict, Geneva 25–27 January 1993: Report on the work of the meeting, Geneva, April 1993, submitted under Item 142 on the agenda of the United Nations General Assembly (Sixth Committee), which led to resolution A/48/30 of 9 December 1993.

28. Annex to the Secretary–General’s Report on the protection of the environment in times of armed conflict (A/48/269) of 29 July 1993: “Guidelines for military manuals and instructions on the protection of the environment in times of armed conflict”.

29. Symposium on humanitarian action and peace-keeping operations, Geneva, 22-24 June 1994, Report, Umesh Palwankar ed., Geneva, June 1995.

30. Mr Francis Deng, who was appointed by resolution 1992/73 of 5 March 1992 during the 48th session of the Commission on Human Rights.

31. Persons displaced within their own country, Report of the Symposium, Geneva, 23-25 October 1995, ICRC, Geneva, 1996.

32. See Resolution 1, para. 4, (and Annex II.II) of the 26th International Conference of the Red Cross and Red Crescent, Geneva, 1995.

33. See, for example, Theodor Meron, “The continuing role of custom in the formation of international humanitarian law,” American Journal of International Law, Vol. 90, No. 2, April 1996, pp. 238-249.

34. See document A/46/182 of 19 December 1991: Strengthening of the coordination of humanitarian emergency assistance of the United Nations Organization.  

35. See the report of the International Law Commission on the proceedings of its 47th session, 2 May-21 June 1995, and the Draft Code of Crimes against the Peace and Security of Mankind (A/CN.4/L.506) of 22 June 1995.

36. See XIXth Round Table on current problems of international humanitarian law, IRRC, No. 306, May-June 1995, pp. 347-354.

37. See XXth Round Table and International Congress: “United for the respect of international humanitarian law”, 6-9 September 1995, which discussed, inter alia, matters relating to the 26th International Conference of the Red Cross and Red Crescent (customary law, advisory service, follow-up to the recommendations of the Group of Intergovernmental Experts for the Protection of War Vi ctims).

38. See XXIst Round Table: “Armed conflicts and disintegration of States: humanitarian challenge”, 2-5 Septem ber 1996.

39. See Louise Doswald-Beck, “Manual on international law applicable to armed conflict at sea”, IRRC , No. 309, November-December 1995, pp. 583-594.

40. From 18 to 20 November 1996.

41. On promotion, see in particular Hans-Peter Gasser, “Universal acceptance of international humanitarian law: Promotional activities of the ICRC”, IRRC , No. 302, September-October 1994, pp. 450-457.

42. See also “National measures to implement international humanitarian law”: Resolution V of the 25th International Conference of the Red Cross, Geneva, 1986; and María Teresa Dutli, “Implementation of international humanitarian law: Activities of qualified personnel in peacetime”, IRRC , No. 292, January-February 1993, pp. 5-11.

43. Among these seminars are:

– Implementation of international humanitarian law: regional seminar for the Baltic States, Riga, Latvia, 22-23 November 1995, Report.

– Regional seminar on the implementation of international humanitarian law and on cultural heritage law, Tashkent, Uzbekistan, 25-29 September 1995, Report;

– National seminars on the implementation of international humanitarian law: regional seminars in Africa: Zimbabwe (10-17 February 1996; 23-26 February 1996 and 2-5 March 1996); Namibia (18-23 February 1996); Zambia (26 February-1 March 1996): South Africa (5-6 March 1996), Report.

– National seminars on the implementation of international humanitarian law: regional seminars in the southern Caucasus: Baku, Azerbaijan (6-7 May 1996 ); Yerevan, Armenia (9-10 May 1996; Tbilisi, Georgia (13-14 May 1996), Report.

44. See Paul Berman, “The ICRC’s Advisory Service on international humanitarian law: The challenge of national implementation”, IRRC , No. 312, May-June 1996, pp. 338-347.

45. Meeting of 24-25 October 1966, Geneva (report pending).

46. Articles 47, First Convention, 48, Second Convention, 127, Third Convention, and 144, Fourth Convention, Art. 83, Protocol I, and Art. 19, Protocol II.

47. See, for example, Study guide of the International Red Cross and Red Crescent Movement, published by the ICRC and the League (now the International Federation) of Red Cross and Red Crescent Societies in June 1991; and Annex II.IV to Resolution I of the 26th International Conference of the Red Cross and Red Crescent, Geneva, 1995.

48. See, for example, Law of war: Prepared for action. A guide for professional soldiers , ICRC, Geneva, 1995.

49. See, for example, Jean de Preux, “The Geneva Conventions and reciprocity”, IRRC, No. 244, January-February 1985, pp. 25-29.

50. See in particular Theodor Meron, Human rights in internal strife , Grotius, 1987, 172 pp. Also noteworthy are the proceedings of a group of experts meeting in Turku, Finland – see Hans-Peter Gasser, “Internal disturbances and tensions: New Draft Declaration of Minimum Humanitarian Standards”, IRRC, No. 282, May-June 1991, pp. 328-336. See also Gustav Däniker, The guardian soldier: On the nature and use of future armed forces , United Nations, UNIDIR, September 1995 (Research papers, No. 36).

51. See ICRC Annual Report 1995, pp. 281-287 (Dissemination of international humanitarian law), ICRC, Geneva, 1996.

52. The Convention was adopted by Resolution 44/25 of the General Assembly on 20 November 1989; Art. 38 refers to children in armed conflicts. On the drafting of the Convention, see Françoise Krill, “The protection of children in armed conflicts”, in: The ideologies of children’s rights, M. Freeman and P. Veerman eds., Martinus Nijhoff, Dordrecht, 1992, pp. 347-356.

53. The Convention was adopted by consensus on 9 December 1994 (Resolution A/49/59 and annex). See Antoine Bouvier, “Convention on the Safety of United Nations and Associated Personnel”, IRRC , No. 309, November-December 1995, pp. 638-666.

54. See Art. 20.

55. See the Report of the Ad Hoc Committee on the drafting of an international convention against the recruitment, use, financing and training of mercenaries. UN General Assembly, official documents: 44th session, Supplement No. 43 (A/44/43) and draft resolution A/C.6/44/L.10* adopted without a vote on 21 November 1989.

56. See the Draft Code of Crimes against the Peace and Security of Mankind prepared by the International Law Commission, document A/CN.4/466 of 24 March 1995; and the ICRC’s statement of 1 November 1995 to the UN General Assembly, with special reference to Art. 22 of the draft.

57. Article 8/8/8/9 common to the four Geneva Conventions and Art. 5 of Additional Protocol I of 1977. See also the commentary on this article in: Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 , Sandoz, Swinarski, Zimmerman eds., Martinus Nijhoff/ICRC, Geneva, 1987, pp. 75-89.

58. See Georges Abi- Saab, Les mécanismes de mise en œuvre du droit humanitaire”, Revue générale de droit international public, No. 1 (1978), pp. 103-129.

59. See François Bugnion, op.cit., footnote 1, pp. 803-808,1096-1110 ff.; Hans Haug, “Can the Red Cross contribute to safeguarding peace?” IRRC , No. 240, May-June 1984, pp. 127-139; and Yves Sandoz, “The Red Cross and peace: Realities and limits”, Journal of Peace Research , Vol. 24, No. 3, September 1987, Special issue on humanitarian law of armed conflict.

60. See Code of conduct for the International Red Cross and Red Crescent Movement and NGOs in disaster relief, Geneva, International Federation/ ICRC, June 1994; and Resolution 4 of the 26th International Conference of the Red Cross and Red Crescent, Geneva, 1995.

61. The best known of these is Jean-Claude Favez’ Une mission impossible , Payot, Lausanne, 1988.

62. See “Action by the International Committee of the Red Cross in the event of breaches of international humanitarian law”, IRRC , No. 221, March-April 1981, pp. 76-83.

63. See Yves Sandoz,”Appel du CICR dans le cadre du conflit entre l’Irak et l’Iran”, Annuaire français du droit international , 1983, pp. 161-173.

64. See Luigi Condorelli and Laurence Boisson de Chazournes, “Quelques remarques à propos de l’obligation des États de ‘respecter et faire respecter’ le droit international humanitaire ‘en toutes circonstances’ ”, in: Studies and essays on international humanitarian law and Red Cross principles in honour of Jean Pictet,  

C. Swinarski ed., ICRC/Martinus Nijhoff, Geneva/The Hague, 1984, pp.17-35.

65. See Umesh Palwankar, “Measures available to States for fulfilling their obligation to ensure respect for international humanitarian law”, IRRC , No. 298, January-February 1994, pp. 9-25.

66. See Michèle Mercier, Crimes without punishment: Humanitarian action in former Yugoslavia , Pluto Press, London and East Haven, Conn., 1995; Yves Sandoz, “Réflexions sur la mise en oeuvre du droit humanitaire et sur le rôle du Comité international de la Croix-Rouge en ex-Yougoslavie”, Revue suisse de droit international et de droit européen , 4/1993, pp. 461-490; Jean-François Berger, The humanitarian diplomacy of the ICRC and the conflict in Croatia (1991-1992), ICRC, Geneva, 1995; and the articles by Milan Sahovic, Bosko Jakovljevic and Konstantin Obradovic in the Revue yougoslave de droit international, Nos. 2-3, Belgrade, 1992.