International humanitarian law: should it be reaffirmed, clarified or developed?
01-05-2004 Article, Israel Yearbook on Human Rights, Martinus Nijhoff Publishers, volume 34, 2004, by Jean-Philippe Lavoyer
This article is based on an address before the United States Naval War College, Newport, Rhode Island, on June 26, 2003, as part of a conference on "Current Issues in International Law and Military Operations".
This article was published in "Israel Yearbook on Human Rights", volume 34, 2004, Martinus Nijhoff Publishers
Leiden / BostonThe aim of this paper is to give an overview of some concrete problems of application of international humanitarian law (IHL) and then to look towards possible future remedies. This will be done from the practice oriented, operational perspective of the International Committee of the Red Cross (ICRC).The ICRC is mandated by States, in particular through the 1949 Geneva Conventions  and their 1977 Additional Protocols, as well as the Statutes of the International Red Cross and Red Crescent Movement, to act as promoter and “guardian” of IHL. This role has many facets. It ranges from the promotion of IHL treaties, the monitoring of respect of IHL by the parties to armed conflicts, the dissemination of IHL, to preparing developments of IHL .
For the ICRC, an institution present in almost all the “hot spots” of the world, the main challenge today is without any doubt the proper application of IHL in today’s armed conflicts. Extensive research into recent armed conflicts has led the ICRC to conclude that, on the whole, the existing rules are adequate enough to deal with today's armed conflicts. While the main problem is therefore not a lack of rules, this does not mean that the law is perfect. Like any law, IHL is the result of careful and difficult compromises, in this case between considerations of humanity, military necessity and the need to protect the security of the State. It must be stressed that the ICRC’s conclusion on the adequacy of IHL does not mean that it would in any way ignore the many challenges with regards to the application of the law, including those relating to the fight against terrorism, nor the need for IHL to evolve together with the realities of war.
Especially following the attacks of 11 September 2001, questions have been raised about whether IHL was still adequate to respond to today’s challenges. The debate has taken various forms. At the beginning of 2003, the Swiss Government and the Harvard Program on Humanitarian Policy and Conflict Research organized an informal expert meeting on contemporary challenges of IHL for a group of States and independent experts, as well as the United Nations and the ICRC. The experts identified a number of topics deserving further examination and clarification. But at the same time they also strongly reaffirmed the validity of current humanitarian law and the necessity to apply it. A second meeting is planned for June 2004.
The ICRC for its part has taken a number of initiatives that will be mentioned later in this paper, with a view to reaffirm, clarify or develop IHL.
The first part of this paper will highlight some of the current challenges. It will address two aspects: First, some important general obligations under IHL will be recalled, and second, some special challenges linked to the " war on terror " will be briefly discussed.
1. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, 75 U.N.T.S. 31; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1949, 75 U.N.T.S. 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 1949, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 1949, 75 U.N.T.S. 287 .
2. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977, 1125 U.N.T.S. 609.
3. For a detailed description of the role of the ICRC, see Art. 5 of the Statutes of the International Red Cross and Red Crescent Movement, that were adopted in 1986 (and amended in 1995) by the States Parties to the 1949 Geneva Conventions and by the ICRC, National Red Cross and Red Crescent Societies and their International Federation.
The views expressed in this article are solely those of the author