Implementation of international humanitarian law: challenges and new approaches
3rd International Security Forum, "Networking the Security Community in the Information Age" 19-21 October 1998, Kongresshaus, Zurich, Switzerland, by Yves Sandoz, ICRC Director for International Law and Communication.
Complexity and diversity are the hallmarks of the armed conflicts taking place throughout the world today. They reflect an international situation which is shifting between two poles. The first of these is a new world order, a more structured world which is better suited to deal with the universal dimension of such major problems of our time as underdevelopment, uncontrolled demographic growth, unemployment, mass migration, drugs, weapons transfers, international crime and the environment. The second is the weakening of States or even the disintegration of political entities as a result of the current questioning of the validity of borders and social groupings which were artificially created during the colonial era and the Cold War.
Moving towards the first pole should mean a strengthening of coordinating bodies, international agencies, supranational jurisdictions and the capacity of the United Nations to take action, culminating eventually in the emergence of a new international order in which war no longer has a place, in keeping with the ambitions of the UN Charter.
At the beginning of his term of office, UN Secretary-General Boutros Boutros-Ghali expressed the hope - in his Agenda for Peace - that the world would resolutely follow that path.
However, the end of the colonial era and of the Cold War, both welcome developments in themselves, have drawn the world in the opposite direction. New quests for independence and identity often find expression in territorial claims or extreme nationalist movements w hich create serious instability and sometimes give rise to major abuses such as forcible displacements or even the massacre of entire populations in the name of " ethnic cleansing " .
Such abuses are aggravated by the frustration felt by young people in most of the world's nations, which are unable to check mushrooming demographic growth or to offer their young a proper place in society. This frustration may drive young people to embrace extremism of all sorts and to resort to wanton violence. Terrorist acts can lead to a mounting spiral of measures and counter-measures which heighten tension and foster feelings of rejection between peoples, as shown by the recent attacks on US embassies and the measures taken following those attacks.
Admittedly, the two poles mentioned earlier are not necessarily contradictory, because a better-organized world obviously does not preclude respect for cultural identity. Yet their valid objectives will not easily be reconciled in a climate imbued with misunderstanding and suspicion, particularly since we find ourselves in a general environment in which the economic difficulties encountered even by wealthy States are encouraging the latter to look inward and cut their spending on poor countries and on a more balanced international structure.
This does not mean, of course, that we must take the morbid view that the situation is now worse than ever before. We must keep in mind the positive features of our times: the end of colonialism, the defeat of apartheid, the affirmation of human rights and the end of the Cold War. Nor must we forget the Holocaust, which took place barely 50 years ago, and the massacre of Cambodia's civilian population under Pol Pot: there are no " good old days " .
Even so, the transition period we have now entered will certainly last for some time to come and will continue to spark such tragic upheavals as those we are w itnessing today.
The humanitarian organizations will therefore have to go on dealing with conflicts of great diversity and complexity in which structured armed forces, be they governmental, opposition or international (particularly UN troops), will coexist with disorganized forces, which may be out of control or have no other objective than the immediate satisfaction of individual needs.
1. Validity of the principles underlying international humanitarian law
The first question to be asked is whether the underlying principles of international humanitarian law and emergency humanitarian action are still relevant today. An examination of the three principles which, in our opinion, are the very foundation of international humanitarian law and which must guide emergency humanitarian action in armed conflicts, namely the principles of humanity, impartiality and neutrality, will serve to answer that question.
The first principle is that of humanity. Humanitarian action in conflict situations must be motivated solely by the desire to help the victims, according to their needs and on the basis of a sound and independent evaluation. It is a question of being sensitive to the sufferings of others, discerning the essentials, refusing to become trapped in routine and avoiding fatalistic acceptance of the unacceptable.
The second principle of humanitarian action is that of impartiality. Humanitarian action does not " sort out " victims according to any criteria other than their needs. It does not succumb to the temptations of racism and exclusion.
The principle of neutrality supplements the first two. A humanitarian operation is not a militant operation, and to attach any political objective or connotation to it would undoubtedly impair its credibility for all concerned in a confli ct situation, and consequently its acceptability and efficacy.
I am convinced that these three principles remain perfectly valid today. They are indispensable in the long term for creating the atmosphere of trust without which humanitarian action would be inconceivable. Yet a mere complacent proclamation of these principles is not enough. It is their practical application which gives rise to thorny questions and which must be closely studied.
In view of the complexity of today's world, we have to examine very carefully to what extent international humanitarian law is geared to present situations.
2. Special difficulties encountered in the implementation of international humanitarian law
While the principles of international humanitarian law remain an indispensable basis both for the law itself and for humanitarian action, if we want to gain a better understanding of the situation we should take a close look at the practical difficulties encountered in some types of conflict.
There are two categories of conflict which give rise to particular problems, owing either to lack of will to apply international humanitarian law or to inability to ensure that the law is respected. One of these types of conflict is aimed at excluding certain sections of the population, and the other occurs in countries where State structures are in the process of disintegration.
2.1. Conflicts aimed at exclusion
There are conflicts in which certain rules of humanitarian law are challenged and where the real problem is not the ability but the willingness to apply those rules. One example of this is the practice of " ethnic cleansing " , which is aimed at displacing sections of the population by force or even exterminating them. In this type of conflict, a mounting spiral of propaganda, fear, violence and hatred creates a sort of momentum, reinforcing group identity at the expense of national identity and ruling out any possibility of cohabitation with other groups. Taking this attitude to its logical conclusion, exclusion becomes a necessity and may even lead to extermination.
International humanitarian law prohibits forcible displacements and is obviously incompatible with attempts at genocide. Any action, therefore, which is designed to protect or assist the people vulnerable to displacement or, at worst, extermination will obviously stand in the way of those who pursue such objectives, whether they admit it openly or not.
Some serious security incidents which have affected humanitarian organizations recently are certainly not unrelated to this state of affairs, which may arise even when the objectives outlined above are pursued by very small minority groups. Once they have decided to target a humanitarian activity which interferes with their plans, even a handful of well-organized and unscrupulous individuals can cause a great deal of trouble for humanitarian agencies. The latter clearly cannot take chances with the lives of their staff and are hardly in a position to stand up to a direct terrorist threat. This has to be said, even though such acts, fortunately, are still rare.
The response of humanitarian action and law to these conflicts, which are sometimes referred to as conflicts aimed at asserting " identity " , obviously calls for careful consideration.
International humanitarian law cannot function properly unless the parties to the conflic t are convinced not only that its rules are important, but also that application of those rules will not hinder them in the pursuit of their military objectives. This is the real crux of the problem in this type of conflict.
The objective of some of the parties involved is not just territorial. They are no longer willing to tolerate cohabitation on their territory with " ethnic " (a much-abused term which needs defining) or religious minorities. Their war objective thus entails acts which are condemned by international humanitarian law, since in such cases civilian communities, which should be spared the effects of armed conflict, become the actual targets, and are subjected to harassment or forcible displacement.
Hence the ambiguity of any dialogue concerning respect for international humanitarian law which does not recognize this fundamental contradiction.
Such ambiguity is dangerous. The risk involved in humanitarian action will be considerably increased if it is undertaken on the basis of agreements wrested from the parties, whose real aims it opposes. Bringing humanitarian assistance to people in their home areas helps to keep them there. That is a basic objective of humanitarian action, because forcible displacement is against the law and because it has tragic consequences for the populations concerned (famine, disintegration of the social fabric, personal anguish, separation of family members, etc.).
In the event, however, this humanitarian objective is diametrically opposed to the political objective, which is precisely to induce people to leave their normal places of residence. This political objective in fact represents such an enormous challenge to humanitarian work that the resulting situation is far beyond the capacity of humanitarian organizations. How can we combat the systematic harassment of whole populations?
Moreover, if successfully pursu ed, this political objective will produce a practically irreversible situation, at least in the short term, since it implies sowing hatred and mistrust between the members of different communities. By enlisting the help of compliant media to magnify every incident and by always casting the blame on " the others " , those responsible exacerbate tension among the communities concerned and direct against those " others " a resentment which has been quite legitimately aroused by the hardships of war, the loss of loved ones and the destruction of property.
In Bosnia-Herzegovina in particular, where the different religious and cultural communities used to live in harmony, a process was set in motion whereby individuals were forced to adopt a position in relation to their neighbours, of whose religion they had often been unaware, and even to themselves, in the case of the many children born of mixed marriages. But nothing spreads more easily than hatred and mistrust and no one is safe from such practices: witness what happened during the Second World War. The situation therefore rapidly deteriorates to the point where minority communities have no choice but to leave. Sooner or later, they themselves end up wanting to leave.
This painful and complex situation raises a number of issues relating to international humanitarian law.
The way in which the conflicts in the former Yugoslavia and, even more tragically, the conflict in Rwanda evolved revealed a steady erosion of the fundamental values of international humanitarian law. The question then arises as to whether the attempt to save whatever can be saved at all costs, through dialogue and agreements between the parties, should lead to the development of new rules. In other words, is there a need to devise a form of international humanitarian sub-law which is fully acceptable to all the parties in a situation of this kind, taking as a basic premise the forcible displac ement of populations for reasons of " ethnic cleansing " ? The question can obviously be seen as provocative, and clearly shows that this is the point where international humanitarian law reaches its limits. It is of course out of the question that the ICRC, in fulfilling its mandate " to prepare any development [of international humanitarian law ] " , should agree to compromise on essential values just because rejection of those values is posing a fundamental challenge to the functioning of the law.
While the search for ways of assisting the victims of these situations must continue, I believe that no erosion whatsoever of the basic humanitarian rules may be tolerated; otherwise we risk seeing the collapse of the entire edifice of international humanitarian law.
Action can and must adapt, even to barbarity, but not the rules.
2.2. Armed conflicts in countries where State structures have broken down
These conflicts are characterized not by any specific war objective but by the circumstances in which they take place, namely the absence or disintegration of any type of organization (civil, social, religious or even military) within the State or within the warring factions. The goals pursued in such cases are often unclear, precisely because of the lack of any structure. The situation frequently degenerates into sheer banditry, a struggle where the main objective becomes personal survival.
In such conflicts there is loss of control by the central government, which is no longer able to exercise its authority over its territory or its population, and a breakdown in the " chain of command " within some or all of the warring factions.
The first of those elements is not sufficient in itself, since any form of internal conflict is bound to entail some loss of control by the government over its territory and its population. It is more the weakening or even the complete disappearance of the chain of command which is the characteristic feature of a " destructured " conflict.
A proliferation of factions involved in the struggle may be a warning sign heralding a complete loss of control. This development does not necessarily imply, however, a breakdown in the chain of command. In situations such as that in Afghanistan, and even to some extent in Bosnia-Herzegovina and Sudan, several of the warring factions managed to remain in command of their troops. The evacuation of the Tall-al-Zaatar camp in Lebanon in 1976, to take a less recent example, meant negotiating with some fifteen factions, but proceeded virtually without incident once their consent had been obtained. Even though it may face considerable difficulties, humanitarian action in such situations is thus still possible. It requires a great deal of patience and determination, since the purpose of humanitarian law and action has to be explained to and accepted by all the factions involved, through a very lengthy process of confidence building. But such a process can ultimately bear fruit, as is shown by the humanitarian operations which the ICRC has been able to conduct in Afghanistan for many years, to take a particular example.
The collapse of central structures observed in situations such as those in Somalia and Liberia, on the other hand, raises problems which are even more acute and at times insoluble.
The first question that may be asked in such circumstances is whether international humanitarian law is applicable at all. Can it really be said that there is an " armed conflict " when State structures are falling apart?
Governments often have a tendency to deny the very existence of a conflict on their territory. The Security Coun cil has asserted, however, that factions fighting each other in a State which is " disintegrating " should be considered as parties to the conflict, and that such clashes between factions are sufficient to constitute an armed conflict. One may refer in this respect to the many resolutions passed by the Security Council in 1992 and 1993 concerning the conflicts in Somalia, Bosnia-Herzegovina, Liberia, Cambodia, Rwanda and Georgia. These statements endorsed the opinion on Article 3 common to the four Geneva Conventions given by the International Court of Justice in its judgment of 27 June 1986 in the case of military and paramilitary activities in and against Nicaragua (Nicaragua v . United States of America).
While these decisions, which are aimed at closing some all too convenient loopholes in the obligations arising under international humanitarian law, must be welcomed, we can hardly speak of that law in situations where the armed forces of the ruling power terrorize or even massacre the population, unopposed by any other armed forces, however poorly organized, or by any " mass uprising " of the population. Such situations do of course involve serious violations of human rights and even, in some cases, violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. They do not, however, strictly speaking fall within the scope of international humanitarian law, since it is not a matter of regulating relations between parties to a conflict but, at worst, of stopping a massacre. Efforts must then be concentrated on urging the international community to react, and that reaction should translate into firm, rapid and effective decisions by the Security Council. This is, alas, not always the case.
There is also the question of whether international humanitarian law is adequate to deal with situations of total anarchy, where practically all organized authority tends to d isappear. Once again, it is chiefly the responsibility of the international community - and in particular that of the Security Council - which must be invoked, in whatever way and on whatever basis possible. It seems outrageous to waste time on legal wrangling in such extreme situations, which are admittedly exceptional.
Then, in " destructured " conflicts more specifically, there is the problem of the nature of outside intervention and that of the application of international humanitarian law to the intervening forces.
The solution to the first of these problems should ideally be sought in the United Nations Charter. But the Charter does not really envisage the possibility of a collapse of State power. The whole system set up by the Charter, as far as United Nations operations in the event of a threat to peace are concerned, rests on the idea of a dialogue with a government. The Security Council may initially request provisional measures; it may then impose sanctions not involving the use of armed force; and, finally, it may use coercion. All such measures stem, however, from the assumption that the objective is to exert pressure on a government which may be recalcitrant, but which does exercise power. There is not really any provision in the Charter for the eventuality of the absence of power in a Member State.
At present, therefore, intervention by forces of the United Nations or regional organizations in these circumstances is not untainted by a certain ambiguity, as it is often based on pseudo-agreements delivered by pseudo-governments. The problem of the application of international humanitarian law arises again in relation to the outside forces, especially if they become involved in armed clashes. In such situations the forces have to play more of a policing role, to restore order, and they are often faced with m any questions to which there are no clear answers. For instance, do they have duties similar to those of an occupying force under the terms of the Fourth Geneva Convention? What should they do with any prisoners they take? How should offenders be tried and punished when there are no courts in a position to dispense justice? All these are thorny questions which should be clearly identified and considered very carefully.
Another important question arising in these contexts is that of the responsibility borne by private companies which, in order to be able to pursue their activities, make up de facto for the shortcomings of the public authorities, often by mandating specialized security firms to take over policing duties which are normally the preserve of the State.
Indeed, no one has yet considered all the implications of these situations, and attempts have been made to apply remedies which were obviously not suited to the ills they were supposed to cure. The collapse of the State and " destructured " conflicts, as mentioned earlier, raise a problem which does not fit into the patterns either of international humanitarian law, or of human rights law, or of the United Nations Charter, all three of which require for their application the existence of some sort of State structure. The matter therefore calls for close study.
What can be said is that international humanitarian law has had a rough ride in recent years, particularly in cases where certain fundamental humanitarian rules were deliberately flouted and where all structures and order in the countries concerned were so badly shaken that there was no authority left to undertake or fulfil any form of commitment.
3. Does international humanitarian law need to be revised?
Is there a need, then, for a fu rther revision or general adaptation of international humanitarian law? That would be a rather hasty conclusion.
There is no doubt that the practical application of international humanitarian law in armed conflicts has revealed certain problems which merit examination or clarification, in areas such as the repatriation of prisoners of war, the definition of the end of hostilities, or the protective emblem.
Furthermore, some of the mechanisms provided for in international humanitarian law have not lived up to expectations, in particular the system of Protecting Powers and the International Fact-Finding Commission. A thorough review of the reasons for these failings is called for, and could lead to certain amendments or new initiatives.
Finally, the proliferation of humanitarian organizations has given rise to a number of unfortunate incidents and prompted some pertinent questions as to the competence and the criteria for action of some of those agencies. The establishment of codes of conduct and of more precise standards for protection and assistance operations must therefore continue, with a view to improving the consistency and the quality of humanitarian action and to defining more clearly the accountability of humanitarian organizations.
A careful look at the humanitarian Conventions, however, shows that their substance remains valid on the whole and that the difficulties encountered nowadays arise chiefly from the fact that the means and the will to implement these instruments are lacking. The problem is therefore more political than legal, and it is pointless to seek the wrong remedies for real ills. A general revision of international humanitarian law would undoubtedly be a lengthy, costly and hazardous undertaking. While it might produce a few useful improvements in some of the areas mentioned above, it is equally likely that it would provide certain States with an excuse to renege on vital issues th at had previously been accepted. Moreover, the objective of universality, which has by now been virtually achieved where the Geneva Conventions are concerned, with the Additional Protocols not far behind, and which is essential for rules applicable in armed conflict, would have to be pursued for many years in regard to the new rules, with all the efforts of persuasion and the laborious procedures of ratification or accession that this would involve. In other words, the cost of any attempt to revise international humanitarian law, as compared with the effectiveness of such a move, appears far too high at present.
While such a conclusion may be drawn in general terms, it does not apply with respect to the rules restricting the use of certain weapons. Protocol I of 1977 imposes on States a permanent obligation to determine the lawfulness of any new means of warfare that they may consider acquiring or developing. Indeed, specific prohibitions or restrictions on the use of certain conventional weapons have been introduced in a separate Convention, adopted in 1980, which makes provision for a regular review mechanism.
In that particular case, therefore, it was appropriate to remain open to the possibility of embarking on a review procedure. The ICRC lent its support to those who sought a review of the rules in this area, notably by taking the initiative of organizing seminars of experts on issues which needed considering in more depth and by playing an active part in preparatory meetings and in the sessions of the diplomatic Review Conference. Two subjects in particular called for examination: landmines and blinding weapons. The ICRC was particularly well qualified to speak on the first of these issues because of its action in behalf of mine victims, carried out initially by surgeons and at a later stage by prosthetic specialists, who have set up orthopaedic centres in 34 countries and have developed new techniques appropriate to local conditions. Landmines c ause the most appalling wounds and spare no one. How was it possible to accept such carnage without protest? As the law had proved inadequate, it had to be reconsidered and the opportunity offered by the review of the 1980 Convention was one not to be missed. The ICRC therefore gave its backing to the review procedure by sharing its legal expertise and especially its first-hand knowledge of conditions in the field, and by having specific aspects of the problem examined by groups of experts. In particular it brought together a group of military experts, whose conclusions showed that the military utility of landmines was far more limited than was generally believed. In this way the ICRC certainly contributed to the not negligible yet still insufficient progress achieved under the review procedure.
The question of anti-personnel laser weapons was first considered informally at the 25th International Conference of the Red Cross in 1986. These weapons have since become technically more sophisticated, although they have not yet been used in an armed conflict. The review of the 1980 Convention therefore offered a unique opportunity to try to impose a preventive ban on their use. On this issue, too, the ICRC convened several meetings of experts and published a summary report on their proceedings. The work they did and the published report, combined with intense activity in terms of dialogue and information, played a decisive role in the review procedure. This led to the adoption of a Protocol on blinding anti-personnel weapons and, more important, established in a probably decisive and definitive manner the principle that blinding as a means of warfare is unlawful.
Another area in which a legislative initiative has borne fruit is that of repression of violations. The system of repression provided for in international humanitarian law has not been very successful, and the setting-up of an international criminal court may be extremely useful in this vital area. A law which is not backed up by penal sanctions cannot be effective.
The future international criminal court, coming after the ad hoc Tribunals for the former Yugoslavia and Rwanda, will thus serve as a useful complement to the system set up by the Geneva Conventions. The ICRC played an active part in the preparatory work and therefore warmly welcomed the adoption of the new court's Statute by a Diplomatic Conference in Rome last July. It is to be hoped that States will endorse and ratify this treaty without delay and will give the new court the means it needs to function properly.
To sum up, in the face of frequent and large-scale violations of international humanitarian law, the situation needs careful analysis. In the first place it must be determined whether such violations may or may not be attributed to shortcomings in the law; then, should that appear to be the case, it must be decided whether the shortcomings are such as to justify the risks and the cost of a revision of the law; and lastly, if the time seems ripe for such a revision, appropriate initiatives must be taken to bring it about and to highlight the humanitarian aspects of the problems, especially on the basis of the experience gained in armed conflicts.
Finally, let it be said that the security of humanitarian workers, so difficult in many situations but so vital for humanitarian action, still depends first and foremost on understanding of and respect for the underlying principles of international humanitarian law, and that it is vital to maintain a dialogue with all concerned, through channels and approaches which must constantly be reviewed and adapted to the circumstances.
During the first Periodical Meeting of States party to the Geneva Conventions, which took place in January of this year, both the issue of the protection of humanitarian personnel and the difficulties created by conflicts which occur in disintegrating States were discussed at length. The participants came to the conclusion that these problems did not have their roots in international humanitarian law and that this law - in particular Article 3 common to the four Geneva Conventions - is still relevant.
The doubtful advisability of embarking, with a real chance of practical improvement, on a global revision of international humanitarian law on the one hand, and on the other hand the difficulties encountered in particular in the situations described above, lead us to the question of preventive action.
4. Can preventive action be taken to avert large-scale violations of international humanitarian law?
While I cannot claim to give a definitive answer to so complex a question, I should like to offer a few thoughts.
The difficulty of working in the area of preventive action should lead those embarking on such a course to resist two pernicious tendencies. The first is defeatism, which tends to denigrate a task whose most visible aspects are its limits and failures: massacres and rapes make headlines in every newspaper, but those that have been avoided pass unnoticed because there can never be any certainty about the actual outcome of preventive work. The other tendency is to withdraw into one's shell and even to embrace a sort of racism. The horror of certain situations prompts some to protect themselves psychologically by reductive reasoning: those people are too different from us, we can do nothing to help them, let us leave them to fight it out among themselves, we hear. That, of course, reveals a very short memory and a failure to recognize that the sad privilege of being the scene of massacres and other atrocities is not reserved for any particular region. It also implies an i nexcusable lumping together of executioners and their victims: the suffering of a child or a mother cannot be measured on a different scale according to race or origin, and it is discouraging that people should constantly need reminding of that fact.
So what can we actually do? Here I should like to touch on four types of complementary action that are now being taken and could be further developed: the dissemination of international humanitarian law; an examination of the practical problems involved in applying that law, with a view to clarifying or adapting it; the development in peacetime of national measures to ensure better application of the law in the event of war; and, lastly, the international repression of violations.
4.1. Dissemination of international humanitarian law
In recent years the ICRC has made considerable efforts to make international humanitarian law better known. The main objective of those efforts is naturally to spread knowledge of the law among those who are primarily required to comply with its provisions, namely members of the armed forces. Teaching of the law has often been neglected or taken lightly; if it is to be done efficiently, it must become an integral part of military instruction and be taken seriously by the military hierarchy from top to bottom. That hierarchy must be convinced that compliance with international humanitarian law by the armed forces is not only a humanitarian imperative but also helps to enhance their military efficiency, because the ethics and discipline inherent in respect for the law are obviously positive factors in that regard. A dialogue with the senior military authorities of States, and in particular with those in charge of training, is therefore a priority. The ICRC is also helping, in States which so desire, to introduce and follow up teaching programmes in international humanitarian law and to organize international seminars to help train senior army officers for the task awaiting them in that area.
In addition, in recent years it has responded to an increasing number of requests for definition and teaching of the humanitarian precepts that armed forces and the police must comply with in situations of internal strife which are below the threshold of armed conflict and are therefore not covered by international humanitarian law.
I should mention, however, that although a dialogue with properly organized armed forces is still a priority, other channels are also being used to spread knowledge of international humanitarian law.
Nowadays, the protagonists in conflict situations are no longer just the members of organized armed forces, so an effort must be made to reach all persons bearing arms. That is obviously more difficult, but dialogue must be sought with all the parties involved before field operations begin. Admittedly, such a dialogue with parties other than the organized armed forces can usually take place only after the conflict has broken out, since it is in times of conflict that such irregular groups are formed. Nonetheless, it can still have a preventive function because many conflicts drag on and on. As mentioned earlier, however, the dialogue is extremely difficult, if not impossible, in some particularly chaotic contexts.
That is why the ICRC has sought to gain a better understanding of the cultural contexts in which it operates and has explored all possible means of reaching its target groups. A prime example of this approach is the mobilization of African musicians who enjoy a high degree of popularity across the continent.
The objective of preventing violations of humanitarian law by spreading knowledge of its rules must therefo re be taken further. Wherever possible, an effort is made to introduce the rudiments of the law and the principles and values on which it is based into school curricula at a very early age. Often coupled with the teaching of basic human rights, this effort is based on the idea that combatants and all those who have to comply with humanitarian law cannot be expected suddenly to start behaving in accordance with the law unless they have been imbued with its values from their most tender years. Clearly, an institution like the ICRC cannot provide such teaching on a long-term basis. Its role is to try to convince governments and to identify partners in different countries to promote the idea and develop it further: National Red Cross or Red Crescent Societies first and foremost, but also government officials and those in academic circles can fulfil such a function.
Raising awareness in government circles and among the general public also implies winning over the media, whose support is essential.
In short, the broad dissemination of international humanitarian law and instruction in its principles are obviously a vital plank in any policy aimed at securing greater respect for the law.
4.2. National measures of implementation
We cannot expect international humanitarian law to be properly applied in times of armed conflict unless sound preparations have been made in peacetime. In addition to the dissemination efforts mentioned earlier, States must adopt many legislative and other measures, for instance concerning the protection of the red cross/red crescent emblem and the punishment of breaches of international humanitarian law, which call for specific penalties in national legislation, the development of civil defence and the protection of cultural objects.
At the 1995 International Conference of the Red Cross a nd Red Crescent, some countries would have liked to introduce a compulsory system whereby States would have to submit periodical reports on the measures they adopted. The compulsory nature of such a system put the majority of States off the idea, although they did acknowledge the importance of such national measures. Instead they urged the ICRC to offer advisory services in that field. The ICRC has now set up such services; they are not only assisting States which request help, notably by developing contacts between them, but also encouraging them through constant dialogue to adopt the necessary measures. Since those measures generally affect several ministries, the creation of interministerial committees has been encouraged, and national and regional seminars are held regularly in order to exchange experiences, promote the process and plan further activities.
4.3. Repression of violations of international humanitarian law
Every law implies penalties for violation of its rules. While international humanitarian law indeed provides for penalties, putting them into effect is unquestionably a serious weakness. In this respect the legislative developments mentioned earlier are most welcome. But it is first and foremost at the national level that this weakness must be tackled, by insisting on the responsibility of each State for introducing adequate measures in its national legislation and resolutely prosecuting those responsible for violations. The reluctance often evinced by belligerents to prosecute and punish offenders within their own ranks must, however, be taken into account, particularly if the violations stem from decisions taken at the highest military or political level. Meetings with legal experts and judges working in different legal systems to consider the relevant measures to be taken on the national level are therefore essential to complement the efforts being made in the sphere of in ternational law.
Current difficulties in ensuring respect for international humanitarian law in armed conflicts and the serious violations of its provisions that we are witnessing today raise fundamental questions for the international community. The answer to these questions lies far beyond the scope of international humanitarian law and it is unrealistic to think that it will be found simply by reforming this law. On the other hand, the efforts made to achieve greater respect for humanitarian law, to implement it in peacetime, and to disseminate and provide instruction in its rules remain essential, not only to avoid the most serious violations but also because its underlying code of ethics promotes the peace-making process.
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** This text is a revised, expanded and updated version of paper presented to the Malta Conference on the Law of Armed Conflicts in a New Strategic Environment (October 1996).
Ref. LG 1998-080-ENG