Status of the Protocols additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts
United Nations, General Assembly, 63rd session, Sixth Committee, Item 76. Statement by the ICRC, New York, 24 October 2008
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Thank you, Mr Chairman, for giving the floor to the International Committee of the Red Cross.
The year 2007 was marked by the 30th anniversary of the adoption of Protocols I and II additional to the 1949 Geneva Conventions. Today these international instruments form part of the very foundation of international humanitarian law. Their adoption over a quarter of a century ago therefore represented a milestone in the regulation of armed conflict.
This anniversary deserves sober reflection.
As we speak, armed conflicts continue, inexorably, to cause death, injury, destruction, suffering and loss. The media daily bring us news of the plight of the hundreds of thousands of civilians affected by warfare, frequently subjected to direct attacks, forced displacement, outrages against their personal dignity, sexual violence and destruction of civilian property. These people are being denied the protection to which they are entitled under international humanitarian law. In connection with armed conflicts worldwide, detainees continue to be deprived of their basic rights, including adequate treatment while in detention, procedural safeguards aimed at preventing arbitrary detention, and judicial guarantees ensuring the right to a fair trial. In many instances, humanitarian orga nizations are prevented from doing their work or are hampered in their efforts to do so effectively.
This grim picture is of utmost concern to the ICRC, a humanitarian organization active in theatres of conflict around the world, an organization that has an international mandate to work for the faithful application of humanitarian law. This international mandate was entrusted to the ICRC by the States represented here today.
This picture is also at odds with the comprehensive legal regimes as reflected in international treaty and customary law to protect people affected by armed conflict. There is today a growing commitment to international humanitarian law and a heightened awareness of its basic tenets, as illustrated by the Secretary-General's report submitted to this Committee pursuant to resolution 61/30 of 4 December 2006. The principles and rules of humanitarian law are today the focus of intense and wide-ranging government, academic and media scrutiny.
Moreover, one must welcome the sustained progress in the participation of States in international humanitarian law treaties. In 2006, the 1949 Geneva Conventions achieved universal acceptance. Today 194 States are party to them. There are 168 States party to Additional Protocol I and 164 to Additional Protocol II. Protocol III additional to the Geneva Conventions entered into force in 2007 and to date 33 States are bound by it. Other major humanitarian law treaties are also being accepted by an increasing number of States.
Many members of this learned assembly will be familiar with the ICRC's conviction that the existing rules protecting the victims of war are, on the whole, adequate to respond to the challenges of contemporary armed conflict. We refer here to the Geneva Conventions, their two Additional Protocols, and various rules of customary international law. In our view, the basic pri nciples and rules governing the conduct of hostilities and the treatment of persons in enemy hands continue to reflect a reasonable and pragmatic balance between the demands of military necessity and those of humanity.
The major problem today remains that of achieving greater compliance with these norms by all parties to armed conflict, be they government armed forces or organized non-State armed groups.
This need for compliance with established legal rules is one of the main 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. This was subsequently endorsed by consensus by States and the Red Cross and Red Crescent Movement in Resolution 3 on the reaffirmation and implementation of international humanitarian law of that Conference. The resolution was entitled " Preserving Human Life and Dignity in Armed Conflict " .
This is not to say that there is no scope or need for the clarification or development of humanitarian law in response to new situations. As the ICRC pointed out in its report to the 30th International Conference, humanitarian law is constantly being adapted and refined. For example, we are actively pursuing a range of projects and consultations to clarify key legal concepts such as that of " direct participation in hostilities " and to devise more detailed rules governing internment, i.e. administrative detention in armed conflict and other situations of violence. Recently, the ICRC worked with Switzerland on an initiative on private military and security companies operating in an armed conflict. This seeks to recall and clarify the legal obligations of States and to define good practices relevant to the activities of such companies. In September 2008 this resulted in the so-called Montreux Document. The ICRC also warmly welcomes the historic st ep taken by over 100 States in Dublin on 30 May last when they adopted a new international convention comprehensively outlawing cluster munitions. This new humanitarian law treaty, which addresses the extensive civilian suffering caused by these weapons and seeks to protect future generations from further casualties, demonstrates the continued dynamism of international humanitarian law.
Yet any attempt to review the appropriateness of that law can occur only after it has been determined that it is the law itself that is inadequate, and not the political will to apply it. What is clear however is that humanitarian law can only meet its objectives when it is respected.
All this should encourage us to reflect on the means available to the international community to enhance respect and to prevent violations of humanitarian law, and this in particular through the implementation at the national and international levels of preventive, corrective and punitive measures.
Better implementation of humanitarian law both in peacetime and in armed conflicts is a constant priority for the ICRC. It is essential to recall the States'obligation, stemming from Article 1 common to the four Geneva Conventions, to " respect and to ensure respect " for humanitarian law in all circumstances.
Considerable progress has been achieved in the application and enforcement of international humanitarian law in recent years. One can consider the creation – in the wake of the serious violations of this law that occurred in the former Yugoslavia, Rwanda and elsewhere – of international mechanisms to prosecute individual perpetrators of the worst international crimes. The entry into operation of the International Criminal Court is another remarkable achievement, especially as it is based on the principle of complementarity that affirms the primary responsibility of States to p unish war crimes, as well as genocide and crimes against humanity.
Ensuring compliance requires an understanding of and a commitment to respecting the law on the part of all belligerents. As recalled in previous United Nations General Assembly resolutions on the topic discussed here today, it also requires sustained action by the States. In particular, States enjoy obligations, under the various humanitarian law treaties, to adapt their domestic legal orders and practice so as to ensure the adoption of a wide range of national implementation measures. These include enactment of comprehensive legislation, drawing up of military manuals, and proper training and command supervision within the armed and security forces.
Significant progress has been achieved over the past two years in the domestic legal orders of a great number of States. These States have sought to adapt their legislation and practice to international humanitarian law and resulting obligations. This is reflected particularly in the increasing efforts by States to adapt their criminal legislation to provide for the prosecution of war crimes in their domestic courts and to assert universal jurisdiction over such crimes. Importantly, this is further reflected in the creation by an increasing number of States of national committees and other bodies in charge of advising their governments on matters relating to humanitarian law and its domestic implementation. National humanitarian law committees exist today in 91 States.
States party to Protocol I additional to the Geneva Conventions should also be encouraged to make the declaration under Article 90 of Additional Protocol I and to consider making use, where appropriate, of the services of the International Fact-Finding Commission.
Finally, the ICRC wishes to highlight the developing partnerships and synergies that now promote the i mplementation, dissemination and development of humanitarian law between States, international and regional organizations, the ICRC, National Red Cross and Red Crescent Societies and their International Federation, academic institutions, non-governmental organizations and civil society. In this regard, we would like to highlight the specific role of national Red Cross and Red Crescent Societies as auxiliaries to their government in the promotion of humanitarian law.
The ICRC will continue to work for the promotion, development and national implementation of international humanitarian law and its fundamental rules and values, and encourages States to pursue with urgency and determination the implementation of this law at the national level and to encourage and support other States in this important endeavour.
Thank you, Mr Chairman.