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Respect for International Humanitarian Law - A major challenge, a global responsibility

29-10-2008 Statement

Speaking notes of Dr Jakob Kellenberger, President of the ICRC, European Parliament, Brussels, 16 September 2008

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Mr. Chairman,

Excellencies,

Ladies and Gentlemen,

1. I thank Commissioner Louis Michel, Mr. Hans-Gert Pötering, President of the European Parliament, and M. Thierry Cornillet, Standing Rapporteur on Humanitarian Aid, for their invitation to attend this important Conference on the theme Respect for International Humanitarian Law: a major challenge, a global responsibility .

2. The promotion and strengthening of international humanitarian law are central concerns of the International Committee of the Red Cross (ICRC), in its capacity and international mandate to work for the faithful application of international humanitarian law. This role has many facets, including the dissemination of international humanitarian law and the promotion of ratification of relevant treaties, the monitoring of respect of humanitarian law by the parties to an armed conflict, as well as the preparation of new developments in this field.

For the ICRC, an institution that is active in all conflict theatres around the world, the main challenge today is without a doubt the proper application of and respect for IHL by the belligerents, States and non-State armed groups. We sadly live in a world in which reports of direct attacks against civilians, of forced displacement, and of mistreatment of persons detained in relation to an armed conflict and the denial of their basic rights, judicial guarantees and procedural safeguards, are all too common.

3. Some of you will, I believe, be familiar with the ICRC's view that existing rules of international humanitarian law for the protection of victims of war are, on the whole, adequate enough to respond to the challenges of contemporary armed conflicts and that the major dilemma to be met is one of achieving greater compliance with and respect for existing norms by all parties to an armed conflict.

This is one of the major conclusions of a Report presented by the ICRC to the 30th International Conference of the Red Cross and Red Crescent held in Geneva in November 2007, entitled " International Humanitarian Law and the Challenges of Contemporary Armed Conflict " and which sought to reaffirm the basic tenets of international humanitarian law and the continued adequacy of international humanitarian law norms to address the circumstances of contemporary warfare. This conclusion is also reflected in the text and recommendations enshrined in Resolution 3 of the Conference on the Reaffirmation and Implementation of IHL "Preserving Human Life and Dignity in Armed Conflict " .

4. Aware of the need for clarification of key notions like " direct participation in hostilities " , the necessity for developing more detailed rules for internment/administrative detention, judicial guarantees and other areas, the work of clarification to be carried out with regard to new situations of occupation or the gaps in treaty law applicable to non-international armed conflicts, this conclusion will certainly not lead me to say there is no scope or need for the development and adaptation of humanitarian law to new situations. The recent adoption in Dublin of a new international treaty comprehensively outlawing cluster munitions, and for which the ICRC has been one of the leading advocates, testifies also to the continued dynamism of this body of law. What I am suggesting is that any attempt to re-evalu ate the appropriateness of international humanitarian law can only take place after it has been determined that it is the law that is lacking, and not the political will to apply it.

5. It is almost common today to suggest that we live in an increasingly complex world in which the factors and risks of armed violence are evermore difficult to predict and circumscribe. The realities of armed conflict at the outset of the new millennium have also changed, as classical inter-state wars have mainly given way to a wide range of highly complex and drawn-out non-international armed conflicts, often with an international dimension, yet almost always implying a direct and far-reaching impact on civilians. Even in cases where fighting is of low intensity, the humanitarian consequences for the civilian population are very serious indeed.

5. I do not have the time in the course of this brief presentation to review the many dilemmas and impediments to the application of international humanitarian law in present day conflicts. As some of you will know, the ICRC is developing a wide range of initiatives aiming to strengthen international humanitarian law, to clarify some of its key concepts and to reflect upon emerging trends and threats to the implementation of humanitarian law on the battlefield.

The ICRC's Report to the 30th International Conference of the Red Cross and Red Crescent highlights some of the ICRC's main concerns, including inter alia the challenge of implementation of IHL in the so-called " fight against terrorism " , the proliferation and fragmentation of non-State armed groups and the phenomenon of " asymmetric warfare " , the emergence of new actors of conflict such as private military and security companies, or yet the evolving threats linked to new technological developments with potentially devastating humanitarian consequences.

7. I turn now to my main topic this morning: the means and instruments available to the international community in order to prevent and respond to violations of humanitarian law – at the political level and through the implementation at the national and international levels of preventive, corrective and punitive measures.

It is essential that the European Union and its member States continue to act forcefully, whether individually or collectively, in order to impress upon all parties to an armed conflict the fact of their legal responsibility to respect the basic tenets of international humanitarian law. As said before, the principal challenge to the application of international humanitarian law in contemporary situations of warfare remains the lack of political will by parties to an armed conflict to respect IHL and to prevent its violations.

8. I begin by recalling the primary responsibility of States stemming from the 1949 Geneva Conventions and their first Additional Protocol of 1977 " to respect and ensure respect for these Conventions under all circumstances " (Article 1 of the Geneva Conventions) and " in situations of serious violations … to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations'Charter " (Article 89, Additional Protocol I).

9. I need not comment extensively on the obligation to " respect " . The primary responsibility for providing individuals with the protection they are entitled to falls upon the authorities concerned, be they Governments, de facto authorities, armed groups, or any actors exercising control over a given territory. This includes international forces be it for example the multinational forces in Iraq, ISAF/NATO in Afghanistan or the MONUC in the DRC.

10. The second wing of the obligation under Common Article 1 is more difficult to circumscribe. Much has of course been written on the exact nature of the obligation for States to " ensure respect " for international humanitarian law. This provision is today generally interpreted as enunciating both a positive responsibility and a legal obligation for third States not involved in an armed conflict to act, whether through bilateral or multilateral channels, to ensure that the belligerents comply with the law and to use their influence to stop the violations. This should at least entail, in my view, an " obligation of means " for States to take all appropriate measures possible in an attempt to end IHL violations.

11. Over the past 20 years, considerable progress has been achieved in the application and enforcement of international humanitarian law, if one considers in particular the advent and establishment, in the face of the terrible violations of international humanitarian law that occurred in the former Yugoslavia, Rwanda and elsewhere, of international judicial mechanisms to prosecute and sanction individual perpetrators of the worst international crimes. These efforts have culminated in the establishment of the International Criminal Court.

These developments have also served to remind States of their obligations under international humanitarian law to punish and suppress serious violations of international humanitarian law, in particular through the enactment of adequate criminal legislation allowing for the prosecution of war crimes in domestic courts based on the principle of universal jurisdiction.

12. Ladies and gentlemen,

I would like now to conclude this short presentation. I believe it is fair to say that the international community has come some way in past years in its efforts to strengthen international humanitarian law and to develop new mechanisms, new concepts and approaches to increase respect for the law by warring parties. Certainly, achieving co mpliance for humanitarian law will require our constant attention and resolve.

13. It is in this light that I would like to underline the great significance of the political commitments undertaken by the European Union and its member States in recent years in an effort to weigh upon the behaviour of belligerents on the battlefield, to induce a better application of IHL.

I wish to mention here in particular the Guidelines on Compliance with IHL as adopted by the Council of the European Union in December 2005 and which lay the premise for the European Union to incorporate IHL as a core consideration of its Common Foreign and Security Policy and of the Union's relations with third States and third States'groupings. I would like to refer also to the joint EU Pledges related to IHL, its respect and development undertaken at the 30th International Conference of the Red Cross and Red Crescent. I would like to welcome also the recent European Consensus on Humanitarian Aid in its effort to set out a common EU vision for reaching out to victims of armed conflicts and natural disasters.

The challenge will remain of course to determine appropriate mechanisms and courses of action in order for the EU to apply and operationalise the 2005 EU Guidelines. The ICRC stands ready within the limits of its own mandate and modes of operation to support the European Union in this important endeavour.

I thank you for your attention and look forward to our discussions.