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International humanitarian law, human rights and peace operations

04-09-2008 Statement

Keynote address by Dr Jakob Kellenberger, President of the ICRC, at the 31st round table on current issues of international humanitarian law that took place at the International Institute of Humanitarian Law in San Remo, 4 September 2008

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Mr President,

Excellencies,

Ladies and Gentlemen,

Thank you for the opportunity to address this distinguished audience. I am grateful for the San Remo Institute's interest in engaging with the ICRC in discussion of this year's topic " International humanitarian law, human rights and peace operations " .

 
"It is definitely of central importance that peace forces ensure respect for IHL and for the dignity and rights of individuals, particularly by means of and in the framework of their operations in the field, in territories under their control, vis-à-vis individuals in their power, and when able to positively influence the relevant State authorities or armed groups." 
Over the years, the spectrum of peace operations has grown increasingly broad and come to include various dimensions such as conflict prevention, peace-keeping, peace-making, peace-enforcement and peace-building. Indeed, the responsibilities and tasks assigned to peace operations have transcended the traditional monitoring of ceasefires and observation of fragile peace settlements. Contemporary peace operations are more ambitious than their predecessors in that they are supposed to achieve more than simply preventing the resumption or spread of an armed conflict. Today, the international community conceives of these operations as a means of addressing the root causes of the crisis to which they are responding. They take a proactive approach intended to compel those engaging in violence to step back from conflict and embrace peace and security.

Today, the multifaceted nature of these operations, the concept of integrated missions and the ever more difficult and violent environments in which their personnel operate highlight how important it is for the international community to develop a coherent framework that embraces the complexity of peace operations. The topic chosen for this Round Table will certainly help clarify certain aspects of this framework, in particular its legal component.

For forces engaged in peace operations (I will hereafter refer to them as peace forces), the dangerous and volatile contexts in which they operate makes it more likely that they will become involved in the use of force. In such an environment, the question of the applicability of IHL and human rights law becomes acute. This is particularly the case when these forces are involved in peace-enforcement operations. The issue of the circumstances in which IHL applies to peace operations has been discussed extensively for some time and there is a large body of legal literature on the subject. However, a number of matters relating to the legal framework applicable to peace operations are still unsettled and, in light of their importance and consequences, deserve to be closely examined. In addition, the development of peace operations has brought to the fore new issues such as the detention and transfer of individuals and accountability for breaches of IHL and human rights law. The ICRC therefore warmly welcomes and supports the San Remo Institute's decision to resume discussions on this important and very timely topic.

Ladies and gentlemen, interaction between peace forces and the ICRC has developed considerably both at headquarters level and in the field, in particular regarding assistance and protection work in the field and promoting IHL training. Cooperation is all the more essential since peace operation personnel have frequ ently been deployed in countries still plagued by armed conflict and in which the ICRC is also working. Since peace forces have often been involved in hostilities and law-enforcement operations, the ICRC considers it extremely important that those forces be fully acquainted with and adhere scrupulously to the rules of IHL and other relevant bodies of law such as human rights law.

The ICRC has on various occasions shared its observations regarding the applicability of IHL to peace forces. It has always been the ICRC's view that peace forces must observe this body of law when conditions for its applicability are met. Such a position is also reflected in the UN Secretary-General's Bulletin on " Observance by United Nations forces of international humanitarian law " of 6 August 1999 whose developments that led to its adoption were also inspired by the ICRC.

However, within the framework of its dialogue with international organizations and with States contributing to peace operations, the ICRC has frequently been confronted with arguments that deny IHL's applicability. Indeed, practice shows that States and international organizations engaged in peace operations tend not to acknowledge that they are involved in an armed conflict and that IHL applies to their own actions or those of their agents. They sometimes erect sophisticated legal constructions to put across this view. Their denial is in line with their general reluctance to be perceived as a party to an armed conflict, especially when they are part of a peace operation. It also has to do with their political desire to consider their operation as neutral and impartial for as long as possible.

 
"... the fact to resort legitimately or illegitimately to the use of force cannot absolve anyone from his obligations under IHL nor deprive anyone of the protections afforded by this body of law. " 
It has always been the ICRC's position that the nature of the situation and the correlative assessment of IHL applicability must be determined solely on the basis of the facts on the ground, irrespective of the formal mandate assigned to the peace operations by the Security Council and irrespective of the label given to the parties potentially opposed to peace forces. The mandate and the legitimacy of the mission entrusted to the peace forces are issues of jus ad bellum and have no bearing on the applicability of IHL to those operations. On this very point, I would like to quote the preamble to Additional Protocol I of 1977, which reads as follows:

" Reaffirming further that the provisions of the Geneva Conventions and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any distinction based on the nature and the origin of the armed conflict or on the causes espoused by or attributed to the parties to the conflict " .

Strict separation between IHL and jus ad bellum is also crucial for preserving the aims of IHL in ensuring effective protection of all victims of armed conflicts. Therefore, the fact to resort legitimately or illegitimately to the use of force cannot absolve anyone from his obligations under IHL nor deprive anyone of the protections afforded by this body of law.

Therefore, in the ICRC's view, no legal construction can change the reality of the facts on the ground; one cannot simply decide that there is no armed conflict if an objective assessment of the situation proves otherwise.

Ladies and Gentlemen, as I already pointed out, peace forces are more often than not deployed in troubled environments. Therefore, it is a vital issue to determine which situations constitute armed conflict for the purposes of IHL and to identify the laws governing the operations of the peace forces present or participating in hostilities. This afternoon and tomorrow, the Round Table participants will discuss important themes regarding the threshold of IHL applicability and the material field of application of this body of law. Given the features of today's peace operations, the question of the applicability of IHL is of much more than academic interest. It is directly relevant to troops contributing States and to the international organizations using those troops, even if the latter are not formally party to the relevant international treaties.

Concerning the threshold of IHL applicability,   I would like to stress that the criteria used to determine the existence of an armed conflict involving multinational peace forces should not differ from those applied to more'classic'forms of armed conflict. This is particularly important in light of the recurrent attempts to raise the bar in terms of IHL's threshold of applicability when the use of armed violence involves multinational forces deployed within the framework of a peace operation.

In December 2003, the ICRC organized an expert meeting on multinational peace operations. Some of the discussions among the experts focused on issues relating to IHL's material field of application. The meeting failed to produce clear answers to certain important legal questions such as the following: What is the legal framework of reference when peace forces are involved in an armed conflict? In which circumstances does the IHL applicable to international armed conflict constitute the frame of reference? In which circumstances does the IHL applicable to non-international armed conflict constitute the frame of reference? And related to the latter question – Does the involvement of peace forces necessarily internationalize the conflict and trigger the applicability of the law of international armed conflict, even in the event of hostilities against non-State armed groups?

While with regard to the rules regulating conduct of hostilities this probably does not make a real difference in practice, since many of the treaty-based rules governing international armed conflict are generally accepted as also applying in non international armed conflicts as a matter of customary law, the issue is indeed important when it comes, for instance, to the status of persons deprived of their liberty or the legal basis for the ICRC's activities. I am confident that the forthcoming discussions will be fruitful and will lead to practical answers.

I would also like to draw attention to the applicability of occupation law to peace operations, in particular to those operations conducted under United Nations auspices. While such applicability may appear to be a kind of taboo for the international organizations involved as well as for some troops contributing States, one should ensure that occupation law is not discarded outright and that the rights, obligations and protections derived from it are applied when the conditions for their applicability are met. This body of law, which has proved useful in the past, would provide some practical guidance, in particular for situations in which the peace forces are using extensive administrative and/or legislative powers or may have to perform tasks normally carried out by national authorities. I should point out that the ICRC in 2007 initiated a study on occupation and other forms of administration of foreign territory. This study, aimed at clarifying the related legal questions, will also embrace the challenges raised by the applicability of occupation law to peace forces and to the United Nations administration of foreign territory.

Ladies and Gentlemen, we all know that armed conflicts have taken a heavy toll among the personnel of peace operations. The recent tragic attack against UN peace forces in Darfur is a painful reminder of how risky their mission can be. As evidenced by the corresponding war crime under the 1998 Rome Statute of the International Criminal Court, IHL contains a clear prohibition of attacks against personnel and objects involved in a peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians and civilian objects under IHL. This prohibition is considered to be customary law and thus binding on all parties to armed conflict. Therefore, it cannot be said that the protection for peace-operation personnel in armed conflicts suffers from a legal vacuum within IHL. In addition, some practical and legal solutions have been sought and reached outside IHL, an example being the 1994 Convention on the safety of United Nations and associated personnel and its optional Protocol of 2005. The ICRC perfectly understands the necessity for effective protection for peace-operations personnel. It has nevertheless expressed its concern regarding certain provisions of these instruments that overlap rules of IHL. This overlap could lead to situations in which attacks against members of United Nations operations or against associated personnel engaged in hostilities with a combat function, though not prohibited by IHL, would still constitute a crime under the regime of the 1994 Convention. The ICRC believes that development of the legal protection conferred on peace-operation personnel – in particular in situations of armed conflicts, be they international or non-international – must not be engaged in to the detriment of one of IHL's basic principles, which is equality between belligerents, in other words that both sides of an armed conflict have equal rights and duties under IHL.

Ladies and Gentleme n,
"One of the main challenges faced by peace forces dealing with detention is to ensure that they meet their international obligations - stemming in particular from IHL and human rights law - when handling detainees." 
peace operations today are characterized by the recurrent involvement of the armed forces in the detention of individuals. One of the main challenges faced by peace forces dealing with detention is to ensure that they meet their international obligations - stemming in particular from IHL and human rights law - when handling detainees. These obligations include rules applying to the transfer of detainees to local authorities or to other troops contributing States. In relation to these issues, the ICRC is closely following the intergovernmental initiative developed recently by Denmark on " handling of detainees in international military operations " , aimed at drafting common legal and operational standards that would govern detention in multilateral operations. This is an important and difficult task, as one of the main challenges is how to develop common standards that will adequately reflect the detailed legal obligations set forth in IHL and human rights law. These include, in particular, an important set of procedural safeguards for administrative detention as well as the principle of non refoulement, which prohibits a State from transferring a person to another State if there are substantial grounds for believing that he or she runs a risk of being subjected to violations of his or her fundamental rights, notably torture, other forms of ill-treatment, persecution or arbitrary deprivation of life.

Transfer agreements are an increasingly common feature of multinational peace operations. Under these agreements, the receiving State generally gives assurances that the transferred person will be treated in accordance with international law. If, from a legal point of view, such agreements are not prohibited under international law, they do not, per se , relieve the transferring State of its obligations under the non-refoulement principle. Moreover, from a protection point of view, the ICRC is concerned about their actual effectiveness as well as about their ability to remove the risk of torture and other forms of ill-treatment. In practice, it might appear very difficult to monitor compliance with an undertaking not to mistreat individuals in detention since ill-treatment mostly occurs behind closed doors and its existence is denied.

Ladies and gentlemen, there is a range of other topics of equal importance that will be discussed at the Round Table which I simply do not have time to mention. In closing, I wish to raise two final points.

The mandates defined for peace operations by recent Security Council resolutions tend to incorporate the protection of the civilian population as a standard element. It is definitely of central importance that peace forces ensure respect for IHL and for the dignity and rights of individuals, particularly by means of and in the framework of their operations in the field, in territories under their control, vis-à-vis individuals in their power, and when able to positively influence the relevant State authorities or armed groups. The role of peace operations, particularly that of their military and police components, in providing protection and security is often paramount and unique. The ICRC acknowledges that role but considers that when peace forces provide protection and carry out other activities relating to the military and security sphere, this should be done in a manner that makes it clearly distinct from humanitarian action.

    

Participants will deal with civil-military relations tomorrow afternoon. This item has for many years now been a focus of ICRC int erest, since it can have an impact on the ICRC's ability to do its humanitarian work. If confusion arises, this can affect the perception of the ICRC as an independent, neutral and impartial humanitarian actor.

Today, political and military actors sometimes consider armed intervention, in particular within the framework of a peace operation, as an opportunity to test new integrated approaches to conflict management. Humanitarian organizations such as the ICRC that fail to fall into line with these integrated approaches may be perceived as being entrenched behind the inflexibility of their mandates, or simply out of step of the times.

 
"...the ICRC will continue striving to ensure a neutral and independent humanitarian approach that maintains a clear distinction between humanitarian action and political-military action." 
While humanitarian agencies will continue to act impartially to meet the protection and assistance needs of people affected by armed conflict, peace operations are increasingly characterized by their use of humanitarian aid as one of the tools for achieving a strategic or tactical military goal. Peace forces might engage in a kind of barter, giving aid to the civilian population in exchange for intelligence, or to help protect their own forces, or as a means of winning the'hearts and minds'of the local population. The deployment of the Provincial Reconstruction Teams in Afghanistan that incorporate humanitarian action as part of an overall political and security concept is a particularly good illustration of this. The ICRC is also concerned that civil-military activities with a humanitarian component can increase the risks for neutral and independent humanitarian actors. For example, when military forces themselves deliver humanitarian assistance, they take on a more ambiguous role that is likely to create confusi on with other actors engaged in a purely humanitarian mission, and suspicions about those other actors as well. Such confusion undermines respect for and protection of humanitarian personnel, which is contrary to the letter and the spirit of IHL.

On this fundamental question, the ICRC will continue striving to ensure a neutral and independent humanitarian approach that maintains a clear distinction between humanitarian action and political-military action. Not because the ICRC shies away from the military or because it thinks there are not circumstances in which peace forces might be a last resort for the provision of humanitarian assistance, for instance when the security situation prevents humanitarian organizations from carrying out their activities. Rather, it is because the ICRC wishes to avoid the current blurring of lines that results from the involvement of peace forces in roles typically filled by civilians, in particular humanitarian work, and the related lack of security for humanitarian actors.

    

Ladies and gentlemen, you are now embarking on three days of what I am sure will prove to be substantial and comprehensive discussion. I look forward to contributing to those discussions, but more importantly to listening to your views and comments, both on the legal framework applicable to peace operations in general and on the points raised in this address. I thank you for your attention and wish you a very successful Round Table.

Thank you.