International Humanitarian Law
Extract for ICRC Annual report 2002
The protection of victims of war is largely dependent on respect for IHL. In accordance with the mandate conferred on it by the international community, the ICRC strives to promote compliance with – and contribute to – the development of IHL. Both at headquarters and in the field, the ICRC encourages States to ratify the various humanitarian instruments in order to promote their universal acceptance. The ICRC's Advisory Service on International Humanitarian Law provides States with technical advice to help them adopt national measures to implement these treaties.
Three events were held to commemorate the 25th anniversary of the two Protocols of 1977 additional to the Geneva Conventions. The first was a round table organized by the Swiss Federal Department of Foreign Affairs and the ICRC on " International humanitarian law at the beginning of the 21st century: Challenges and prospects " . The second was an official ceremony held in connection with the loan by the Swiss Confederation of the original Geneva Convention of 1864 to the International Red Cross and Red Crescent Museum for temporary display. The third was the 26th Round Table on Current Problems of International humanitarian Law on " The two Additional Protocols to the Geneva Conventions 25 years later – challenges and prospects " organized by the San Remo International Institute of Humanitarian Law and the ICRC. This event brought together 250 participants to discuss a range of issues relating to the conduct of hostilities and the protection of the civilian population, the use of certain weapons and the repression of war crimes. The round table presented an occasion to look at the future of IHL in light of new types of armed conflicts. In 2002, the ICRC continued making confidential representations to the parties to conflict in cases where this body of law was being violated. When new hostilities broke out, the ICRC reminded the parties involved of their obligations under IHL.
In order to enhance its capacity to protect and assist victims of armed conflict and other situations of violence, the ICRC concluded new headquarters agreements in the year under review with Algeria and Zambia, bringing the number of headquarters agreements signed by the end of 2002 to 70. These agreements give the ICRC various privileges and immunities, and enable the organization and its staff to work in an entirely independent manner. In addition, the ICRC succeeded in its efforts to obtain recognition of its testimonial immunity in the newly-established International Criminal Court (ICC).
Experts from the ICRC's Legal Division attended numerous conferences and seminars on issues relating to refugees and IDPs and to the protection of civilians in armed conflict, where they promoted IHL and stressed the relevance of its provisions and the special role of the ICRC. Whenever new legal instruments are drafted, the ICRC strives to ensure that IHL is taken into account. In particular, since the release of a report in December 2001 by the International Commission on Intervention and State Sovereignty, the Legal Division has monitored very closely the issues arising from the interventions of a State or a group of States with a view to ensuring respect for IHL in all circumstances. It has also been concerned with issues relating to the presence of private companies in countries facing unrest or war, such as the involvement of private military companies in conflict and nonconflict situations, and with broader questions linked to the corporate responsibility of multinational companies active in such countries. The Legal Division has also stepped up its efforts to protect the ICRC logo thro ugh trademark procedures initiated in a number of States.
The horrific events of 11 September 2001 in the United States and the ensuing campaign against terrorism raised a number of questions and concerns on the legal level. One issue was whether IHL is adequate to deal with new situations of violence and new kinds of conflict. In dealing with this issue, it is important to note that the aim of IHL is to limit violence in conflict situations. It protects all individuals who for whatever reason are in the hands of an enemy from arbitrary treatment and abuse. Acts commonly associated with terrorism, such as attacks on civilians and indiscriminate attacks, when committed in armed conflict, are therefore prohibited by IHL. However, IHL is not designed to prevent acts of terror in all circumstances or to combat terrorism in general – it is applicable only where the fight against terrorism amounts to or includes armed conflict. The real problem as regards the application of IHL arises not because it is in any way inadequate, but from a failure to respect its most fundamental rules. If these rules were observed, armed conflict would be the cause of far less suffering. In 2002, the ICRC launched its " Project on the reaffirmation and development of IHL " with the aim of stimulating discussion on the unresolved issues of IHL both within and outside the ICRC.
PROMOTING THE UNIVERSALITY OF IHL
Geneva Conventions of 12 August 1949 and their Additional Protocols
In 2002 the ICRC's Advisory Service organized and took part in a number of workshops, discussion groups and seminars, at national and regional levels, to promote the broadest possible debate on subjects relating to the ratification of IHL treaties and their national implementation. The ICRC was involved in meetings in Argentina, Armenia, Belarus, Belgium, Chile, Côte d'Ivoire, Cuba, Egypt, Georgia, Germany, Hungary, Indonesia, Jordan, Mexico, Panama, Peru, Poland, Russian Federation, South Africa, Sudan, Ukraine, Yemen and elsewhere. Its contribution to these meetings focused on the promotion or implementation of IHL treaties, depending on the audience (government representatives, members of national committees on IHL, university professors, legal advisers within the armed forces, etc.). States not yet party to the Additional Protocols were singled out for special attention. A list of reasons why the Additional Protocols should be ratified was presented together with accompanying documentation and discussed with government authorities.
Rome Statute of the ICC
At the request of States, the Advisory Service also focused on organizing and participating in seminars dealing with the ratification and implementation of the Rome Statute, which established the ICC as a permanent institution with jurisdiction over the most serious crimes of international concern. The Economic Community of West African States (ECOWAS) and the Advisory Service, with support from the Canadian government and the International Criminal Court Technical Assistance Programme, organized the first regional conference on ratifying and implementing the Rome Statute, which was held in January in Abidjan, Côte d’Ivoire. The Advisory Service convened a regional conference on the same topic in Budapest, Hungary, in June, which was attended by representatives of 22 European States; the proceedings were published and widely distributed.
In presentations at various meetings with government representatives the I CRC recommended that matters relating to the ratification and implementation of IHL feature permanently on their agendas. The Advisory Service took part in a number of conferences on the ICC convened by the Organization of American States (OAS), the European Union (EU) and the Commonwealth of Independent States (CIS), and encouraged discussion on the implementation of IHL among member States of these organizations. Contacts were also maintained with NGOs such as the International Coalition for the International Criminal Court, mainly in order to coordinate efforts to promote the Rome Statute.
The Ottawa Convention and the Convention on Certain Conventional Weapons and its four Protocols
The Advisory Service helped to organize and participated in the second seminar for member States of the Southern African Development Community (SADC) and Madagascar, held in South Africa in May. The ratification and implementation of the 1997 Ottawa Convention banning antipersonnel landmines and of the 1980 Convention on Certain Conventional Weapons (CCW) and its Protocols were among the topics discussed. Following this meeting, the Advisory Service prepared model legislation on the implementation of the Ottawa Convention for common-law countries in the process of acceding to it. In July the Advisory Service organized a drafting workshop for member States of the Caribbean Community (CARICOM) with the aim of providing assistance in drafting legislation to enact these and other treaties.
The Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict
In cooperation with Peru’s Ministry of Foreign Affairs and its national IHL committee, the ICRC organized a regional meeting of experts on the protection of cultural property in the event of armed c onflict, which was held in Lima, Peru, in May. Attended by representatives of 13 countries in the region and UNESCO, the meeting emphasized the need to further strengthen the protection of cultural property through ratification of treaties, dissemination of their rules among all sectors of society, and effective implementation of treaty provisions in the national legislation and regulations of each State. A report on the meeting, including all presentations and debates, was prepared and distributed to all participants and the authorities.
MAKING IHL MORE MEANINGFUL
Study on customary rules of IHL
The ICRC continued its study on customary rules of IHL, which was mandated by the 26th International Conference of the Red Cross and Red Crescent. The final publication will consist of two volumes, on rules and on practice. The first will contain a list of rules found to be customary, with a short commentary on why they were so found and indications from practice, where available, as to the scope of application and interpretation of the rules in question. Where uncertainty still exists, trends in practice are outlined. The second volume was drafted in 2000 and has since been submitted to experts inside and outside the ICRC for their comments. This volume contains a summary of practice in the area of IHL compiled over five years of research and is divided into six parts: principle of distinction; specific protection regimes; methods of warfare; weapons; treatment of civilians and combatants hors de combat; implementation and enforcement. This volume continued to be edited, proofread and updated in 2002.
IHL and human rights law
In 2002, the ICRC's Legal Division continued its efforts to clarify the interplay of IHL and human rights law in protecting victims of violence. The ICRC's president addressed the annual session of the UN Commission on Human Rights on the role of IHL and other bodies of law in dealing with the post-11-September reality. In addition, the organization monitored the drafting of resolutions of particular interest to its legal or operational concerns and delivered statements on a wide range of issues, including the rights of women, children, IDPs and missing persons. Between sessions, the ICRC participated in ongoing negotiations and discussions on issues such as the Optional Protocol to the Convention against Torture, the status of mercenaries under international law, basic principles concerning reparations to victims of human rights and IHL violations, etc. The ICRC continued its contribution to the drafting of human rights guidelines for transnational corporations and other business enterprises which is being carried out by the Subcommission on the Promotion and Protection of Human Rights. It also followed the proceedings of that body’s annual session.
During the 57th session of the UN General Assembly the ICRC paid particular attention to legal developments, including the ongoing negotiations in the Sixth Committee on the draft Comprehensive Convention on International Terrorism and the draft International Convention for the Suppression of Nuclear Terrorism as well as the discussions on the legal protection afforded by the 1994 Convention on the Safety of United Nations and Associated Personnel.
Throughout 2002, the ICRC continued working with other international organizations and NGOs on issues of concern to both humanitarian and human rights agencies. This involved providing legal expertise on IHL, taki ng part in numerous seminars and conferences, and giving courses on IHL. The ICRC continued to participate in the Inter-Agency Standing Committee (IASC) reference group on humanitarian action and human rights; in 2002 the IASC published a collection of best practices gathered from humanitarian and human rights organizations in the field entitled Growing the sheltering tree: Protecting rights through humanitarian action . The reference group also completed a document entitled Frequently asked questions on IHL, human rights and refugee law in the context of armed conflict , which will be available in 2003.
NATIONAL IMPLEMENTATION OF IHL
Encouraging the enactment of IHL provisions in national legislation
For IHL to be fully respected, it is of paramount importance that States adopt domestic legislation to implement its rules, in particular those relating to the repression of war crimes and governing the use of the red cross and red crescent emblems and other distinctive signs and signals. To encourage the States in these efforts, the Advisory Service prepared and published a biennial report in 2002, which it distributed to various governments, national IHL committees and National Red Cross and Red Crescent Societies. The publication reported on progress made in around 90 States in implementing IHL at the national level. A series of new fact sheets were also published in 2002 on national measures of implementation, dissemination of IHL, legal advisers to the armed forces, and national measures of personal identif ication; these supplemented existing fact sheets, which were revised and updated.
Supporting the work of interministerial committees for the implementation of IHL
National committees responsible for the implementation of IHL include representatives of the various ministries concerned, and national entities and specialists appointed for that purpose. They are an effective means of promoting respect for this body of law in the States where they have been set up. Their establishment has therefore always been encouraged by the Advisory Service, which also assists them in their work. In 2002 national committees were set up or their mandate redefined in Jordan, the Republic of Korea, and Slovakia. Discussions on forming such committees in the near future in other States, such as Morocco and Sudan, were well advanced.
Organizing a meeting of all national interministerial committees for the implementation of IHL
A meeting of representatives of national IHL committees was held in Geneva in March. The aim was to promote exchanges and develop practical arrangements for direct cooperation between committees. Participants also proposed tools and techniques for strengthening and diversifying their activities, and discussed the desirability of setting up an information-exchange system on national implementation. A report of the meeting will be published.
Providing States with legal and technical assistance
In 2002 the Advisory Service provided technical assistance to many States, including Armenia, Azerbaijan, Bolivia, Bosnia and Herzegovina, Cambodia, Nicaragua, Tajikistan and the United Arab Emirates, in drafting legislation on the emblem. In addition, Colombia, Costa R ica, Estonia, Jordan, Mali and Slovenia were given assistance in amending legislation on the repression of war crimes, the Cook Islands in drafting Geneva Conventions Acts, and Burkina Faso, Colombia and Costa Rica in implementing the Ottawa Convention banning antipersonnel landmines.
Collecting information on national implementation
Information on new national legislation and case law relating to IHL was collected and analysed by the Advisory Service and published twice-yearly in the International Review of the Red Cross. It is worth mentioning in particular that legislation for the protection of the emblem was adopted by Armenia, Azerbaijan, Bolivia, Bosnia and Herzegovina, Cambodia, Nicaragua and the United Arab Emirates. Burkina Faso, Colombia and Costa Rica passed laws prohibiting anti-personnel mines, while Australia, Colombia, Costa Rica, Finland, France, Germany, Ireland, Italy, the Netherlands, Slovenia, South Africa and the Federal Republic of Yugoslavia passed laws relating to implementation of the ICC Statute. This information was also entered into the ICRC database on national implementation of IHL which at the end of 2002 contained updated entries on national legislation and case law in 85 States.
CONDUCT OF HOSTILITIES, WEAPONS AND IDENTIFICATION ISSUES
Biotechnology, weapons and humanity
In September, at an ICRC-sponsored meeting of government and independent experts held in Montreux, Switzerland, the President of the ICRC launched a rare public appeal to governm ents, scientists and industry to assume their responsibilities in the field of biotechnology. While recognizing biotechnology’s enormous potential to benefit humanity, the appeal called attention to the huge risk that it could be misused in armed conflict or as a means of spreading terror. The deliberate spread of infectious disease is likely to become easier and cheaper to achieve, deadlier in its effects, and at the same time more difficult to detect. The ICRC's appeal was launched against the backdrop not only of rapid advances in the biosciences, but also of the failure of States, after nearly 10 years of negotiations, to agree on a protocol for monitoring compliance with the 1972 Biological Weapons Convention. It urged States to adopt at a high political level an international declaration on " Biotechnology, weapons and humanity " containing a renewed commitment to existing norms, as contained in the 1925 Geneva Protocol and the 1972 Biological Weapons Convention, and specific commitments to future preventive action. The appeal received widespread media attention and was welcomed by many governments as an important contribution to international efforts in this field. The ICRC planned to pursue this initiative in 2003 with all key target groups. The concerns it raised were also to be addressed by the 28th International Conference of the Red Cross and Red Crescent.
The ICRC continued to play a leading role in efforts to put an end to the scourge of anti-personnel landmines by promoting adherence to and full implementation of the Ottawa Convention banning these weapons. The organization played a successful role in refocusing the official implementation meetings held in Geneva during three weeks every year on each State Party’s efforts to meet the treaty’s deadlines and implement its provisions relating to stockpile destruction, mine clearance and victim as sistance. ICRC field delegations provided support for some 15 States in developing national legislation to ensure that treaty obligations were translated into national law. In April the ICRC played host to a conference for Southern African Development Community States in which implementation of the Ottawa Convention was a major theme. In November the Moscow delegation hosted a regional conference on the Convention for the CIS that brought together for the first time officials from relevant ministries, clearance specialists and representatives of NGOs. The ICRC also made staff and a travelling exhibition available to a number of other national and regional meetings on the mine-ban treaty. An ICRC expert contributed insights on the negotiating history to a commentary on the Ottawa Convention which was set to be published in late 2003.
Explosive remnants of war and the 1980 CCW
A process launched by the ICRC in 2000 took a major step forward in December when States party to the CCW decided to begin negotiations in 2003 on a new instrument addressing the global humanitarian problems caused by explosive remnants of war. The aim was to agree on measures to reduce the large numbers of civilian deaths and injuries caused each year by unexploded munitions such as artillery shells, cluster bombs, grenades, landmines, rockets and other similar devices. Throughout the year the organization contributed legal expertise and information gained through its field experience to the work of a group of government experts that laid the groundwork for the decision to launch formal negotiations. ICRC delegates and representatives of National Red Cross and Red Crescent Societies gave briefings on these subjects in capitals all over the world and also promoted ratification of the amendment adopted in 2001 which extends the scope of the entire Convention to noninternational armed conflicts. The ICRC will participate acti vely as an observer organization in the negotiations and has called on States to make every effort to reach agreement by the end of 2003.
Small arms and light weapons
The ICRC's contribution to ongoing international efforts to address the issue of small arms and light weapons continued to focus on the ease with which they can be obtained, even by those who violate basic rules of IHL. In discussions with the OSCE and the EU, the organization promoted consideration by arms-exporting States of the intended recipient’s level of respect for IHL. In addition, the ICRC supported National Societies in Sweden and the Balkans that were engaged in raising issues within their own societies about the implications of easy access to militarystyle weapons. Late in the year the organization began discussions with States and NGOs on how best to use the July 2003 midterm review of the UN Programme ofAction on Small Arms to promote progress in controlling arms availability.
Legal reviews of new weapons, methods and means of warfare
For several years the ICRC has sought to ensure that all States establish legal review mechanisms to consider the lawfulness of new weapons and methods and means of warfare, as required by Article 36 of 1977 Additional Protocol I. These efforts appear to have been instrumental in the adoption of such mechanisms in some five or six countries by the end of 2002 and in achieving broader recognition of the need for a rigorous interdisciplinary approach to the conduct of reviews. Previously, fewer than five countries were known to have review mechanisms. An article on legal reviews of new weapons, together with the guidelines for the conduct of such reviews that will be distributed for comment by government experts in 2003, was published in the June 2002 edition of th e International Review of the Red Cross.