Current issues in IHL- interview with Director of International Law and Policy, ICRC

17 May 2017

In October, 2016, Helen Durham, Director of International Law and Policy at the ICRC, talked about some most heated IHL issues when interviewed in Beijing. 

What does the IHL say about terrorism?

International Humanitarian Law or IHL is very clear that acts that aim to spread terror among civilian population are prohibited. And many of the acts today we call terrorist acts were actually clearly breaches of International Humanitarian Law such as the attacks to civilian. So the international community has an obligation to try stop acts of terrorism.

But by doing so, we also have to take into account that we cannot become what we are fighting. So it is very important that we also apply International Humanitarian Law when we are trying to deal with issues of terrorism during times of armed conflict.

Does ICRC have contact with ISIS and other groups fighting in Iraq or in Syria? What penalty could they face if they commit violations of IHL?

The ICRC as an independent and impartial humanitarian organization, really needs to reach out and engage with all parties to an armed conflict. So across the world we deal with many many armed opposition groups. There are some groups like ISIS group and others are very difficult to engage in. And our job is to continue to reach out and try to make sure that anyone who is engaged in conflict understands the basics of International Humanitarian Law.
The International Humanitarian Law applies to everyone. So a non-state armed group or a military officer can all be prosecuted for war crimes. It is very important when we are trying to bring humanity in the midst of war, that we make sure we make those who are responsible and could potentially make victims engaged with the work that we need to do.

Does the IHL offer any protection for peace keepers?

International Humanitarian Law is very clear in ensuring those that are not taking part in conflict have protection. And indeed for peacekeepers we can also look at the International Criminal Court Statute, Article 8, which provides protection for those involved in peacekeeping operations. So the law is very clear in the protection it provides. And obviously when peacekeepers get involved in the conflict itself as a party to a conflict, then the civilian protections that are applied when they are peace keepers are no longer apply. However even those involved in conflict have a range of protections about the use and methods of warfare, and the types of weapons to be used. So it is very important that the international community knows that peacekeepers are protected.

What do you think is the root cause of the current "refugee\migrant crisis"? Did the ICRC do anything to assist these people?

Across the globe there are more refugees and migrants than ever before, I'll say certainly since world war II. There are ranges of reasons why people flee their homes, but very often if states and non-state armed conflicts do not follow the laws of war in fighting, people are much more likely to flee their homes. If your schools are bombed, if your hospitals are destroyed, if there is no infrastructure left, it is very difficult to stay in a place that you call home.
The ICRC and the International Red Cross and Red Crescent Movement do many things globally, to assist those that are moving or fleeing conflict, or migrants. ICRC has particular expertise in immigration detention, in helping families reconnect as many people go missing along the migratory trail. But also our colleagues in national Red Cross and Red Crescent societies also assist the people coming to their own countries. So, as a movement, we care very much about people who are often left vulnerable when they migrate.

What are the major challenges for promoting IHL around the world?

Having spent 17 years in the Red Cross and Red Crescent Movement, I think some of the major challenges we face today in the area of international humanitarian law is bringing back the confidence in the system of this law. We often only hear about the law when it is broken. So people think that actually it is a law that does not work. We, in the ICRC, know this law is very important, and everyday saves thousands of lives. So we must bring back confidence. But I think we are also looking at the changing nature of warfare. Warfare today is much more fragmented in relation to the types of parties that fight each other. It is much more urbanized and it's much more protracted. So these are the real challenges we have to face. I think in the area of new technologies too, cyber warfare, autonomous weapons, and even outer space law, we really need to look at how modern weapon technology can ensurly they follow the principles foundational to International Humanitarian Law.

And finally I think it is really important that we look at the issues relating to compliance with the law. States are often very happy to sign up to new laws. But it is much more difficult to hold them accountable to the obligations that they decide to take up.

What are the frontier IHL-related issues that the ICRC is working on? What diplomatic support does the ICRC expect from States such as China?

The ICRC has a role to develop IHL under the Statutes of the Movement. At the moment, there are a number of key humanitarian issues we are looking at. One of them is to look at how we can strengthen the protection, for people detained during, particularly, non-international armed conflict. And there is a whole piece of work around that. We are also looking at pushing forward with discussions with states to create some sort of compliance forum or a place where states can get together, and exchange best practices on how they can apply with IHL. We are also doing a lot of work in the area of looking at the laws related to peacekeeping and peace operations, and also the types of new weapons. The ICRC has a good dialogue with China, we look forward to engaging further in these key humanitarian issues, and what we really always ask of any state is that they can sit down, talk about issues and come up with solutions that bring humanity into armed conflict.