International humanitarian law and the challenges of contemporary armed conflicts

 Note :  The present report doesn't necessarily reflect the views of the ICRC.  

The workshop, jointly organised by the Swiss Government and the International Committee of the Red Cross (“ICRC”), addressed the principal challenges to international humanitarian law ( " IHL " ) in contemporary armed conflicts. In situations where the protection of human dignity depends on the respect of IHL, it is necessary for this body of law to provide solutions to the new realities of warfare so as to ensure persons affected by armed conflict comprehensive protection of their dignity.

Prof Sassoli of the University of Quebec addressed, among other things, the qualification of the " war on terror " . It was never argued that the Cold War, which opposed communism and capitalism globally, was an actual international armed conflict regulated by IHL, where dissidents could be interned as " enemy combatants " , even though certain " battles " in this war of ideologies did amount to actual armed conflicts, be they international, such as for example Vietnam or Korea, or non-international, like conflicts in Latin America. The same approach must be adopted with regard to the qualification of the " war on terror " . Each component of this struggle must be analysed separately to determine whether it amounted to an armed conflict.

Prof Sassoli emphasised that if a situation amounting to an armed conflict opposed two states it was regulated by the rules of IHL applicable in international armed conflict. If, however, it involved a st ate and an organised armed group, it could not be regulated by these rules even though it may spread across national borders. He discussed the threshold that must be met for a situation of violence to amount to a non-international armed conflict. A number of factors need to be taken into account. These include the tactics used: military operations of a coordinated character would be a factor pointing towards the existence of an armed conflict. Also relevant are the degree of organisation and discipline of the parties to the violence; the intensity of the violence in terms of participants and victims; and whether the non-state party has de facto control over certain vicitms. Less important is the duration of the violence.

Prof Sassoli also examined the protection of persons in situation of armed conflict, which requires the complementary application of different bodies of international law in addition to international humanitarian law. Human rights law applies during armed conflict, even though the application of certain rights may be suspended. Different issues in different situations are regulated primarily either by IHL or by human rights law. For example, while the reasons for internment of prisoners of war are regulated exclusively by IHL, the detention of civilians may, in certain cases, be regulated by IHL and in others by human rights law. The basis for assessing the lawfulness for the deprivation of liberty in non-international conflicts is regulated exclusively by human rights law and national law.

In his presentation, Brigadier Githiora, Head of the Legal Services of the Kenyan Department of Defence, addressed the application of IHL in non-international armed conflicts. He pointed out that it was generally accepted that many of the rules on conduct of hostilities in the treaties regulating international conflicts now formed part of the customary rules of IHL applicable in non-international conflicts, including the principle of distinction, the definition of military objectives, the prohibition of indiscriminate attacks and the principle of proportionality.

The absence of a mechanism for qualifying a situation as a non-international conflict and to trigger the application of IHL in the face of the reluctance of states to accept the existence of a conflict; the absence of monitoring mechanisms such as the International Fact Finding Commission for non-international conflicts; and the minimal training and weak command structures of organised armed groups are obstacles to obtaining respect for IHL in non-international conflicts.

A number of practical ways and incentives for overcoming these challenges were suggested. Organised armed groups could be given the opportunity to express their consent to be bound by IHL, possibly by means of the special agreements envisaged by common article 3 of the Geneva Conventions focusing on selected obligations. Innovative methods of dissemination could be experimented such as radio broadcasts or training techniques based on local folklore. In terms of incentives to respect IHL, members of organised armed groups could be given " combatant immunity " from persecution for mere participation in hostilities – obviously not for any violations of IHL which they may have committed – or amnesties could be declared for such participation. An alternative could also be a reduction in the sentences imposed in proceedings under national law for participating in hostilities. The importance of strategic incentives, such as reciprocal respect of captives and legitimacy as political actors that may be gained from respect for IHL was also mentioned.

Dr Henckaerts, Legal Adviser at the ICRC Legal Division and co-author of the study on customary law, highlighted some further problems related to non-international conflicts: the limited ratification of Additional Protocol II by states involved in such c onflicts; the fact that organised armed groups have not expressed their consent to be bound by IHL; and the absence of detailed rules regulating conduct of hostilities from existing treaty law applicable in non-international conflicts.

The ICRC's study on customary law, which will address the rules applicable in non-international conflicts will contribute some answers to some of these problems: many of the rules of IHL regulating the conduct of hostilities in international conflicts are customary rules also applicable in non-international conflicts. With regard to the fact that organised armed groups have not indicated their consent to be bound by IHL, Dr Henckaerts pointed out the risk that special agreements may only cover certain rules, while parties to an armed conflict are bound by the entirety of the applicable IHL, so such agreements may fall short of their existing obligations. He also considered that the absence of enforcement mechanisms, and in particular the absence of mechanisms for holding the group accountable, were a significant shortcoming of the current system.

In their interventions Dr Shin, Director General of the Treaty Bureau of the Ministry of Foreign Affairs of the Republic of Korea, and Dr Bugnion, ICRC Director of Law and Cooperation within the Movement, presented existing mechanisms for improving compliance with IHL during armed conflicts. While an important number of mechanisms already existed they had been under-utilised. The mechanisms included:

• the enquiry procedure instituted at the request of a party to a conflict envisaged by the four Geneva Conventions. The requirement that procedures be agreed upon by the parties to the conflict had made resort to this process virtually impossible. Model guidelines on the utilization of this procedure may overcome this problem.

• the International Fa ct Finding Commission foreseen by Article 90 of Additional Protocol I. While it has been in existence for a number of years and has expressed its willingness to also investigate incidents arising in non-international armed conflicts, the Commission has not achieved its full potential for lack of political will. One way of overcoming this could be for the Security Council to request the investigation by the Commission of a particular situation in a binding resolution.

• the system of Protecting Powers envisaged by the Geneva Conventions. States had rarely resorted to this mechanism too. A possible way of revitalising the procedure would be by means of a treaty providing for a mandatory and automatic designation of a protecting power.

• cooperation by states with the United Nations, as envisaged by Additional Protocol I. Peacekeeping or enforcement operations could be established to respond to widespread violations of IHL. Notable examples of such cooperation included the Security Council's establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda.

• the possibility of meetings of High Contracting Parties envisaged by Additional Protocol I.

The important role of the ICRC in ensuring compliance with IHL was emphasised. While this could be strengthened further, this should not be done in a way that would compromise its neutrality and impartiality.

Dr Bugnion also reported on the five regional expert meetings organised by the ICRC in 2003 to find ways to improve compliance with IHL by evaluating existing mechanisms and also thinking creatively about other possible approaches, particularly for non-international conflicts. In all seminars states reaffirmed the importance of the obligation to respect and ensure respect for IHL laid down in common Article 1 of the Geneva Conventions.

Participants encouraged the ICRC and its partners to continue their search for new ways to improve compliance with IHL and to revitalise the many and important existing mechanisms.

See the report prepared by the International Committee of the Red Cross