As the nature of warfare changes, how should international humanitarian law adapt?

What are the challenges associated with protecting victims of modern warfare?

The increased use of private military and security companies in conflict areas, the development of new weapons technology, long-term occupation, unclear rules for detention, particularly during non-international armed conflict, and more generally the lack of compliance with international humanitarian law: these are some of the challenges that are testing the system of laws designed to protect the victims of armed conflict.

In view of the magnitude of these challenges, is international humanitarian law still up to the task?

While preparing for the 31st International Conference in November, the ICRC has been responding with a forceful "yes" – with some caveats – and working closely with States to build consensus around efforts to strengthen several key aspects of international humanitarian law.

A study carried out internally by the ICRC in 2010 concluded that international humanitarian law still offers, on the whole, an appropriate framework for regulating the behaviour of parties to armed conflict – international or non-international. In most cases, what is lacking is compliance. But we also found gaps and weaknesses in four specific areas: in implementation of the law (and in reparations for victims when it is violated), and in protection for the natural environment, for people displaced within their own countries and for detainees.

In our consultations with States, we found that there was interest in pursuing debate on the protection of detainees and on mechanisms for monitoring compliance with international humanitarian law. To advance this agenda, we issued a report entitled "Strengthening legal protection for victims of armed conflicts

Why would States want to tackle the issue of detention at this particular time?

We presented to States concrete problems in this area, and they agreed that some legal guidance is needed in terms of what to do in practice. One example concerns the transfer of detainees between one State and another. When a country makes such transfers, it wants to have safeguards in place – agreed and adhered to by the States receiving the detainees – ensuring that the detainees are safe from abuse.

Another example is what to do when States arrest and intern people for security reasons. Internment is widely used as a means of exercising control over certain individuals without bringing criminal charges against them. Nevertheless, in international humanitarian law applicable to non-international armed conflicts, safeguards are lacking. It is not stipulated on what grounds people can be interned, or whether they have a right to have their case reviewed on a regular basis. States that hold people in these circumstances have an interest in having clear rules.

The conditions in which people are detained is also an issue. Detailed rules exist that are applicable in international armed conflict, but most situations now are non-international: States fighting against non-State armed groups. The rules applicable in non-international armed conflict are not sufficient and need to be strengthened. We need to base our activities not only on humanitarian concerns but also on clear legal standards. This is important when we approach States and non-State armed groups and ask for more humane treatment of detainees.

Is the aim to draft a new treaty covering detention issues?

At this point, we don't have a definite idea about how this process will play out. Different options are available for strengthening international humanitarian law. States will have to make the decision, at a later stage, based on the discussions that will have taken place.

One possibility would be to negotiate a new treaty on detention issues. But other possibilities would also have to be considered, because some States may not see the need to adopt new treaty law.

One of these, for example, would be to use more "soft-law" instruments – i.e. detailed rules that provide guidance without being legally binding. Or we could state more precisely what constitutes good practice.

But will soft-law solutions carry sufficient force?

It's true that soft-law instruments do not carry the same force as international treaties. But even treaties – legally binding though they are – are not always complied with. There are some compliance mechanisms in instruments of international humanitarian law, but only for international armed conflict, and the mechanisms are not very efficient. For non-international conflict, such mechanisms simply do not exist.

Some experts believe that we need a new, independent body to investigate violations of international humanitarian law as they unfold. What is the ICRC's view on this issue?

We believe that all options should be discussed. Creating a new monitoring body is one of them. But our view is that we need to agree first on certain principles: in the report that we submitted to the International Conference we suggested for example that the mechanism, to be effective, should be impartial and independent, that its work should not be subject to the agreement of parties to armed conflict, and that it should be able to make binding decisions.

Wouldn’t some States object in principle to the idea of a completely independent body that has the authority to make binding decisions?

Yes, but there are also some States that are not satisfied by the way things are functioning now, or by what they see as the politicization of international humanitarian law. So they may be interested in having impartial bodies assess situations and determine, on an independent basis, whether there are or are not violations of international humanitarian law.

One mechanism that already exists is the International Fact-Finding Commission. But that commission needs to have the agreement of the parties involved in the conflict in order to do its work. The required agreement is very difficult to obtain in practice. There is always a risk that one party doesn’t want to be monitored. States have the possibility of declaring, at any time, that they recognize that the commission has the legal standing to perform its functions, but a great many have not done so. Whether we need a new mechanism or improvement in existing mechanisms is something we would like to discuss with States.