Strengthening compliance with international humanitarian law

Speech given by Mr Peter Maurer, President of the ICRC, Fourth meeting of States on strengthening compliance with international humanitarian law, Geneva, 23 April 2015

We are gathered here today for the Fourth and last Meeting of States within the joint Swiss-ICRC facilitated initiative on Strengthening Compliance with International Humanitarian Law (IHL).  The importance of this undertaking, which was mandated by the previous International Conference of the Red Cross and Red Crescent, held in late 2011, cannot be overstated. Improving compliance with IHL remains on abiding challenge. But the need to respect, and ensure better respect, for this body of norms has since become ever more necessary, and is now urgent.

The evidence is all around us. Armed conflicts, or the risk of such conflicts, are occurring in practically all regions of the world. We are witness to new power dynamics and strategic realignments internationally, and to the emergence of a range of non-State parties that commit acts that defy the very notion of humanity in war. A host of other factors also lead to and aggravate political instability. This often limits the capacity of communities to find peaceful ways of resolving tensions and disputes.

The complexity of armed conflicts, whether international or non-international, has increased. Fighting in densely populated areas, and the humanitarian tragedies this causes, has become a defining feature of contemporary warfare. In non-international armed conflicts, both traditional and extra-territorial, the non-State parties are more and more fragmented or operate on the basis of shifting alliances, making identification and dialogue with them difficult. Their knowledge and acceptance of IHL is often, non-existent or weak, leading to unspeakable civilian suffering and the prevention of assistance and protection to affected populations. The constant development of means and methods of warfare adds to existing challenges. While some may be used in a way that better distinguishes between combatants and civilians, the full deadly potential and lawfulness of others has yet to be determined.

It is a truism, and yet must be repeated, that the current state of human suffering, and of humanitarian needs caused by armed conflicts around the world, would be far lower if international humanitarian law were properly implemented by the parties on the ground, both State and non-State.

There is - still – an overwhelming implementation gap.

As is well-known, this body of norms does not regulate the right to a first use of force as such, but the way in which force may be used once the threshold of an armed conflict has been reached. It encapsulates a balance between military necessity and humanity, and aims, as much as possible, to spare civilians and civilian objects from the effects of military operations. Its principles and rules - such as distinction, proportionality and precaution in the conduct of hostilities or the humane treatment of persons in enemy hands - were specifically designed for the circumstances of war, the essence of which is not adequately reflected in other bodies of international law.

If the purposes of IHL are to be fulfilled, it must be known, understood, accepted and, finally, implemented by the parties to an armed conflict.  This is a multifaceted process, which requires that appropriate action be taken by actors at the national, regional, and international levels.

Based on its mandate under the relevant treaties, the ICRC aims, through a constant, confidential and bilateral dialogue with States and other weapons’ bearers, to improve their knowledge, acceptance of and adherence to IHL. Our field delegations in some 80 countries, as well as our headquarters services, are also devoted to engaging with a range of other actors in peacetime, from military trainers to academic circles to disseminate and ingrain the real-life value of respect for this body of norms.

 But more must be done. While IHL is being increasingly referenced in international political fora and in specialized bodies overseeing the implementation of other branches of international law, such attention is of a sporadic, and therefore insufficient nature. Focus on IHL is often the result of real or perceived situations of urgency, in which political considerations prevail over the need to soberly and expertly assess both the applicability, and the application of, this body of rules.

 For reasons you have already identified within the current process, the individual IHL mechanisms provided for in the Geneva Conventions and Additional Protocol I have proven unable to contribute to filling the implementation gap. They are stand-alone and can be triggered only by the parties to international armed conflict, which has not happened at all, or at least not in the last decades. With the exception of the International Humanitarian Fact-Finding Commission, there is little expectation that they could be reconfigured to serve the needs of better respect for IHL in contemporary armed conflicts.

The time has come for States to show their commitment to improving respect for IHL through a joint effort. It should no longer be accepted that the Geneva Conventions are practically the only treaties of international law that are not accompanied by a framework within which States can discuss the better implementation of IHL. You have received a Background Document for this meeting in which the contours of a new IHL compliance system are outlined, based on several rounds of consultations among you, as well as on numerous bilateral and other meetings that have been held.

As facilitators, we have done our very best to encapsulate both the guiding principles and those elements of a possible IHL compliance system that have garnered significant support. They are such that no State should feel unwilling or unable to take part. Let me briefly remind you why: the system will not be legally binding but voluntary, as most of you were not favorable to the idea of amending the Geneva Conventions or of adopting a new legal instrument. It has been stressed by you time and again that the future framework must operate in a non-politicized and non-contextual manner, and that dialogue and cooperation must underlie your common effort to improve respect for IHL. The new system must take resource considerations into account, while allowing for universal participation. And: it will be driven by you.

A regular Meeting of States is intended to be the central pillar of the new IHL compliance framework, as just described by Federal Councillor Burkhalter. This Meeting should be annual in order to ensure the effectiveness of efforts to raise awareness of IHL, discuss its substantive content, as well as the legal and practical challenges of its implementation, all with a view to enabling better respect on the ground. We have attempted to address the foundational issue related to its establishment through a hybrid solution, which we hope will meet with your support and bridge the different positions on this question that have thus far been expressed.

The reporting system on national compliance with IHL, which is one of the functions that would be attached to the Meeting of States, has likewise been devised so as to reflect the guiding principles of the current process. Reporting is an indispensable means to allow States to periodically review and assess the efficacy of measures taken at the domestic level to ensure respect for IHL. It should provide a baseline of information, which allows the identification of good practices, capacity building needs, and the identification of challenges in IHL implementation as well as ways of resolving them.

However, national reports will not be individually discussed, but will be consolidated in non-contextual documents that should permit the Meeting of States to examine ways of enhancing IHL implementation in a non-politicized manner, through dialogue and cooperation. National reports will be limited to States’ obligations under the Geneva Conventions and their Additional Protocols, for parties to the latter. The reporting system is not envisaged to be cumbersome, and here, too, we have proposed a hybrid solution in order to marry the different types of reports that have been favored by you in the consultations thus far.

We hope that this Meeting will provide us, as facilitators, with guidance on the outstanding issues related to the reporting system outlined in the Background Document.

A thematic discussion function has likewise generated a wide convergence of views. Thematic discussions will take place in a specific plenary session of the Meeting of States and aim to, among other things, ensure that States are better informed about current or emerging IHL issues, and enable a better mutual understanding of legal and policy positions on such topics. This function will also be organized in a way that would allow for a non-politicized, but interactive debate, in keeping with the guiding principles of the current process.

A fact-finding function has generated divergent views among you in previous consultations. As a result, we have noted that further discussion on this issue should be deferred to the Meeting of States itself, once it has been established. Given that all that is being proposed at this stage is a subsequent discussion, it is to be hoped that this suggestion could meet with your approval.

I would like to stress that, while we are currently engaged in an effort to establish a new IHL compliance framework, the future system will need to remain relevant and credible in the face of challenges to IHL implementation that may arise in the years to come. The rapidly changing nature of warfare demands it. I trust that you will be amenable to imbuing the future framework with the flexibility to evolve, as the need may arise, in keeping with the guiding principles of the current process. 

The IHL framework as I have just described it, will clearly need expert and administrative support. Many of you have suggested that the ICRC should be invited to play a special role in this regard.

We stand ready to perform the expert functions that are referenced in the Background Document given that, as already mentioned, the new system is meant to operate in a non-politicized and non-contextual manner. We will, of course, be constantly following its work with a view to assessing whether our contribution can comport with our mandate, principles and standard working modalities, including confidentiality. We are also willing to support the work of a future Secretariat of the Meeting of States that would be tasked with administrative functions. While this issue will be further discussed at today’s meeting and further, we are ready to explore ways in which a future Secretariat could be linked to the ICRC, while keeping it distinct and different from our bilateral and confidential activities.

A number of States expressed the fear that - given the antagonistic character of international relations today - a new IHL compliance mechanism might be instrumentalized. Therefore, a consensus has emerged that ‘non politicization’ must be a key principle of the process and of its outcome. We have been working to ensure that this imperative is respected when designing the proposal for a regular Meeting of States and the functions that could be attached to it. In other words, while we understand the concerns that have been expressed, they should not be a reason to prevent a good faith and decontextualized debate on some recurring IHL issues within a dedicated forum of States. Failure to discuss such issues may over time lead to even greater challenges.

I would like to recall, in closing - and I don’t think I am overstating - that we are participants in a historic process. We have achieved significant progress in the consultations held thus far aimed at designing a new IHL compliance system. We have the opportunity, at the next International Conference of the Red Cross and Red Crescent in December this year, to take a decisive step towards creating such a framework, and thus of filling a gap of long duration. This process is the first of its kind ever to be undertaken, and will likely be the best chance States will have to collectively contribute to improving respect for IHL for a long time to come. I urge you to recognize your responsibility and to come together now, and at the International Conference, for the sake of the millions of people suffering the effects of armed conflict around the world.