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Is IHL still relevant in a post-9/11 world?

02-10-2006 Article, Global Futures, Number 2, 2006, by Angelo Gnaedinger

Article published in Global Futures Number 2, 2006 (World Vision International) and reproduced here with the magazine's kind permission.

There is much talk today of a post-9/11 world that is profoundly different from the world we knew before that dreadful day. In the view of those who insist that there was a paradigmal shift, this “new world” is witnessing “new conflicts” to which the old rules cannot fully apply. These new conflicts are also portrayed as “asymmetric conflicts” of which the so-called “Global War on Terror” is the most prominent example. The advocates of the “new conflicts – new rules” view argue that international law, in particular international humanitarian law (IHL), is not an adequate tool for dealing with that “Global War on Terror”.

What is IHL? 

IHL is the body of rules that regulates the conduct of hostilities and the protection of persons during an armed conflict. It is important to understand that it does not regulate the use of force; that is regulated by the Charter of the United Nations. It is also crucial to understand that IHL regulates hostilities only during armed conflict. Armed conflict involves the use of armed force by one State against another, or hostilities between government armed forces and organised armed groups, or between such groups within a State. In other situations, such as terrorist attacks on railroads in Madrid or the subway in London, there is no armed conflict, i.e. IHL does not apply. Human rights and various national legislations, however, do apply.

The “global war” itself is a misnomer. Not everything that is undertaken under that designation today amounts to an armed conflict in the sense of IHL. The fight against terrorism encompasses a series of measures – diplomatic, political, financial, etc. – and can in some cases include armed conflict. Thus, the hostilities that started in Afghanistan in October 2001 or in Iraq in March 2003 are armed conflicts. If there is an armed conflict, whatever the cause, whatever the aim, whatever the name, it is regulated by IHL.

It has been argued that respect for the rules of humanitarian law would weaken States’ ability to adequately respond to current security challenges. Taking a closer look at the basic tenets of IHL we will discover that the balance between State security and the preservation of human life, health and dignity is at the very core of the laws of war. These rules were precisely designed to address the very exceptional situations of armed conflict when some other laws may be put on hold.

IHL an obstacle to justice? Nothing is further from the truth 
Another criticism that has repeatedly been levelled at IHL is that its provisions constitute an obstacle to justice. Indeed, nothing is further from the truth. It is well known that persons who take a direct part in hostilities during an armed conflict without being authorised to do so lose protection from attack during such participation and may be prosecuted under domestic law for taking up arms. Moreover, the treaties of IHL encourage States to bring perpetrators of war crimes to justice and, in case grave breaches are committed, they demand it, including by means of the exercise of universal jurisdiction. Of course, they also require that due process of law be applied.

The 1990s saw the emergence of conflicts occurring in “failed states” which, it was argued, were a consequence of the end of the Cold War. These wars are marked by the partial, and sometimes even total, breakdown of State struc tures. In such situations, armed groups take advantage of the political vacuum in an attempt to grab power. A specific feature of such conflicts is a weak chain of command within armed groups, often run by war lords whose political ambitions are outweighed by the personal enrichment they anticipate. Their aim is thus to keep an armed conflict going, not necessarily to win it. In this context, even mutual support between the adversaries becomes possible (e.g. arms trading).

However, it is not because State structures have been weakened or are non-existent that there is a legal vacuum with regard to international law. On the contrary, these are precisely the circumstances in which humanitarian law governs. Article 3 common to the Geneva Conventions requires all armed groups to respect individuals who have laid down their arms and those, such as civilians, who do not take part in the hostilities, whatever the term used to describe the conflict. Customary law rules regulating the conduct of hostilities also remain in force.

Admittedly, humanitarian rules are hard to enforce in this type of conflict, as is the case in “asymmetric” conflicts, characterised by disparity in military strength of the adversaries. The lack of discipline among belligerents and the increasingly blurred distinction between fighters and civilians often cause confrontations to take a brutal turn, in which there is seemingly little place for the rules of law. It must be stressed, however, that in such circumstances it is not the rules that are at fault, but the political will of the parties – and of the international community – to enforce them.

With all who suffer 

Beyond IHL, it has been argued that neutrality, one of the fundamental principles guiding the Red Cross and Red Cr escent Movement, is outdated – and even immoral – in a post-9/11 world. Various State representatives have called on the ICRC, publicly or privately, to abandon neutrality as a remnant of a world gone by. Well-meaning advocates are demanding that we take sides, choose between “good” and “evil”. How is it possible to be neutral between “terrorists” and “innocent civilians”, they ask?

It is rare in any controversy of a political nature to find that one party is completely right and the other completely wrong. More importantly, individual civilians and the civilian population at large suffer terribly in all armed conflicts, regardless of which side is “right” or “wrong”. Given that our primary aim is to assist and protect the victims of armed conflict, we do not and cannot approach the protagonists as “good” or “bad”; we do not side with one party against the other. We do not ascribe fault to a party for having started a conflict, nor do we support any kind of justification for a war. We take the conflict as a fact.

We do not ascribe fault, nor do we support any justification for a war; we take the conflict as a fact. 
[1] Jean Pictet wrote in 1959 that: “certain schools of thought maintain that everything, in the existence of a nation or even of an individual, is subordinate to political or ideological requirements… The Red Cross is not exempt from this pressure, and more and more demands are made upon it to enter the sphere of politics.” … “If anyone presents the Red Cross with the well-known and destructive dilemma embodied in the phrase, ‘whoever is not with me is against me’, may it always reply, ‘I am with all those who suffer, and that is sufficient’.” It sounds as true tod ay as it did in 1959, in the midst of the Cold War.

Pictet knew that those who take sides or interfere may “estrange or deceive one side or the other, push them away and lose their confidence”. No belligerent would consent to our presence if they could not trust the organisation or if they felt it was being used as a Trojan horse to promote its adversaries’ broader political agenda.

The term “neutrality” is used only to characterise our attitude toward any ideology, doctrine, or societal project. It pertains to the reasons invoked by the parties for going to war and to the question of whether the Red Cross and Red Crescent Movement should become involved in defending or promoting a cause (e.g. capitalism versus communism or democracy versus theocracy). Neutrality is a means to an end and not an end in itself. It is a tool to keep channels open for better and more effective humanitarian action.

 Mr Angelo Gnaedinger is Director-General of the International Committee of the Red Cross.  

1. The late Dr Jean Pictet was a prominent Swiss legal expert and senior leader of the ICRC.