Challenges faced by ICRC and international humanitarian law (IHL)
Speech delivered by Jakob Kellenberger, President of the ICRC, at Georgetown University, Washington.
There is a special relationship between the ICRC and international humanitarian law, which expressly recognizes the mission of the ICRC and provides a legal basis for the mandate conferred on it by the international community. The ICRC has been at the origin of or involved in the codification of most of international humanitarian law as it stands today.
Challenges facing the ICRC
The ICRC's most important operational challenge is to ensure access to victims of armed conflict and other situations of violence. Direct access to those people is essential if we are to understand their situation and try to address their needs. However, in a changing conflict environment, access is becoming more difficult because of security constraints.
Security presupposes acceptance of the ICRC's presence and activities by all belligerents. To remain close to the victims and to communicate with all existing or potential parties to a conflict, the ICRC has developed a network of more than 230 delegations, sub-delegations and offices throughout the world. It works constantly to expand its network of contacts with all weapons bearers, and with those who can influence them.
However, such contacts are useless without the capacity to deliver on the expectations created by th e ICRC's presence and mandate. It is therefore by being effective in the field and taking action to relieve the suffering of those affected by armed conflict that the ICRC gains its acceptance.
Today, a humanitarian response is provided by a wide range of actors. These include international and local humanitarian agencies, governmental or non-governmental, and, in some regions, military units. Under the terms of its mandate, the ICRC stands for humanitarian action that is neutral and independent. By not taking sides between parties to a conflict, we improve our chances of bringing protection and assistance to those in need. It is a real challenge to ensure that this identity is clearly perceived and respected by all concerned, especially the belligerents, but I am convinced that this identity produces tangible benefits for the victims.
The diversity of the humanitarian sector and the magnitude of the needs it seeks to address make efficient coordination among different actors imperative. The ICRC therefore welcomes any serious effort to improve coordination in the humanitarian field and closely follows and promotes initiatives that have that aim. However, credible independence is not compatible with participation in initiatives where the organization does not retain its own decision-making capacity or where the perception of its identity risks being blurred by association with others whose agendas may go beyond an exclusively humanitarian response.
The interpretation and development of international humanitarian law
For many years, if not decades, understanding and interpreting international humanitarian law was primarily the preserve of government and military experts and others involved in commanding armed forces or instructing them on how to behave in war. Over the last few years, however, issues relating to international humanitarian law have become front-page ne ws. The Geneva Conventions, war crimes, prisoner-of-war status and Common Article 3 are now debated in the public domain.
International humanitarian law is a body of rules, developed over centuries, that today governs armed conflict between States, between States and non-State armed groups, or between such groups themselves. Its main treaties, the four Geneva Conventions of 1949 for the protection of victims of war, were adopted after the carnage of the Second World War. The treaties were crafted as a fine balance between legitimate military necessity and the basic demands of humanity that continue to hold good even in war.
International humanitarian law governs only armed conflict involving organized armed forces, whether State or non-State. It does not apply to situations in which other, peacetime measures may be relied on to achieve the same result.
By way of illustration, let us consider the humanitarian law rules on the taking of life and the detention of persons. Under international humanitarian law, attacks may be directed only against military objectives, which include personnel and objects. However, international humanitarian law also recognizes that in the uncertainty of battle civilian lives may be lost, and attempts to prevent and limit that outcome. Similarly, international humanitarian law recognizes that detention for imperative reasons of security, without criminal charges, might be necessary, but provides that such detention must end as soon as the reasons for it cease to exist.
Interpreting if and when a given situation amounts to war is one of the main challenges facing humanitarian law. Most recently, the challenge has been to determine to what extent the global " war on terror " is governed by international humanitarian law. In the ICRC's view, depending on the facts, some situations may be classified as armed conflicts for which humanitarian law is the appropriate legal framework while others cannot. It is bot h practically dangerous and legally inappropriate to resort to the laws of war in a situation that does not meet the criteria for their application.
There is therefore also no " one size fits all approach " to the status and rights of persons detained in the fight against terrorism. Those involved in war in the legal sense will be protected by international humanitarian law. The protection of others is governed by other bodies of law, such as human rights law and domestic law.
As with any body of law, practical problems many arise that call for existing concepts or rules to be further developed. Allow me to cite the example of Article 3 common to the Geneva Conventions, which applies to armed conflicts between States and non-State armed groups or between such groups themselves. Common Article 3 is, and must remain, a legal baseline from which no departure may be allowed. According to the explicit wording of the Article, its provisions constitute a minimum standard which the parties to a conflict must apply in all circumstances. The Geneva Conventions, in which the Article is contained, have gained universal acceptance. There is no State in the world today that is not party to those treaties.
When Article 3 was drafted in 1949, it was meant only to cover armed conflicts within the territory of a State. Over time, however, it was recognized that its provisions are so fundamental that the prohibitions of murder, mutilation, torture, cruel treatment, outrages upon personal dignity – in particular humiliating and degrading treatment – the taking of hostages and the denial of a fair trial constitute customary law and must be observed in any type of armed conflict, whether international or non-international. It thus applies to all persons detained in armed conflict, regardless of who they are and regardless of who the detaining authority may be.
Common Article 3 expresses minimum obligations with respect to persons detained. However, it does not provide guidance for all aspects of detainee operations to which it may apply. It does not, for example, spell out procedural safeguards for internment, which is a form of deprivation of liberty for imperative reasons of security recognized by humanitarian law. In the ICRC's view, other bodies and sources of law, as well as appropriate policies, should be relied on in order to develop a regime that would comply with Common Article 3.
Internees must, among other things, be informed of the reasons for their detention and a procedure provided to allow them to effectively challenge it. The reasons for detention must be evaluated by an independent and impartial body with the authority to order release if those reasons no longer exist. Humane treatment covers a number of additional requirements including contacts with family members. In no case may persons be held in unacknowledged detention.
Setting out the principles, as well as the specific procedural safeguards, required by the logic and spirit of Common Article 3 is a task that lies ahead. The ICRC has developed guidelines on complying with Common Article 3 that are part of its dialogue with detention authorities in different operational contexts.
Common Article 3 was the subject of important legal and policy debates in the United States in the process leading from the Supreme Court's decision in the Hamdan case to the enactment of the Military Commissions Act of 2006. Common Article 3 is now recognized by the US as a legal minimum standard applicable to those detained in the fight against terrorism.
The Department of Defense has been very explicit in its instructions aimed at ensuring the application of Common Article 3 to persons under its authority. Positive recent legal and policy developments also include the disclosure of the CIA detention programme, as well as the transfer of 14 detainees previously held incommunicado to Guantánamo Bay, where the ICRC was able to visit them .
However, there remain concerns and questions with regard to the Military Commissions Act of 2006. These relate in particular to the definition of unlawful enemy combatant, to the normative distinctions made between the various prohibitions set out in Common Article 3, to certain aspects of procedure before Military Commissions and to the fact that the Act does not provide more clarity regarding the future of the majority of detainees, i.e. those who will not be brought before the Military Commissions.
The implementation of international humanitarian law
Better implementation and enforcement of humanitarian law remains an abiding challenge. This is primarily the responsibility of parties to armed conflicts, whether State or non-State. Implementation presupposes access to and understanding of the law, as well as proper training and command supervision. It also means that appropriate sanctions, including criminal, will be applied against those who violate the rules.
Important strides have been made over the last 15 years with regard to the creation of international mechanisms for individual criminal responsibility. Ad hoc tribunals have been established, as well as a permanent International Criminal Court and special or mixed tribunals. Some States have also proved more ready than others to exercise extraterritorial jurisdiction in order to prosecute and punish serious violations of humanitarian law.
While individual criminal prosecution of violators may thus be said to have undergone some development, improving compliance with international humanitarian law by parties as a whole, while an armed conflict is ongoing, remains the main challenge. Violations and abuses must be prevented from happening to begin with if the law is to fulfil its protective role. While certain mechanisms are provided for in the treaties, the main problem is not so much a lack o f structures, but a lack of political will.
The work of the ICRC is, among other things, aimed at encouraging parties to armed conflicts to implement international humanitarian law in order to prevent and alleviate suffering. The methods by which we do this are many and span the range from public dissemination and training to confidential representations to the authorities in the event of violations. The ICRC's role, and that of other humanitarian actors, is important, but cannot be a substitute for the responsibilities that lie squarely with the parties to an armed conflict.