Striving to improve respect for international humanitarian law
Keynote address by Dr. Jakob Kellenberger, President of the International Committee of the Red Cross, XXVIIIth Round Table on Current Problems of International Humanitarian Law. San Remo, 2 September 2004
Mr. High Commissioner for Refugees,
Mr. President of the Institute,
Ladies and Gentlemen,
I thank the Institute of International Humanitarian Law for organizing this Round Table and thank all of you for your interest in engaging with us in reflection and debate on this year’s topic – that is, “Strengthening Measures for the Respect and Implementation of International Humanitarian Law and Other Rules Protecting Human Dignity in Armed Conflict”.
The protection of human life and dignity is a fundamental objective – one that lies at the very core of international humanitarian law and the other bodies of law we will discuss in the coming days. As affirmed in the Declaration of the 28th International Conference of the Red Cross and Red Crescent in December 2003, " The inherent dignity of every human being can best be promoted and safeguarded through a complementary application of, in particular, international humanitarian law, human rights law and refugee law[, as appropriate ] . "
International humanitarian law, when properly applied, affords vital protection to the lives and dignity of those who are vulnerable in times of conflict. Its provisions are aimed at protecting civilians, peop le deprived of their liberty, the wounded in war, and those under foreign or military occupation. Parties to an armed conflict have the responsibility to implement and respect these laws and the international community has the responsibility – some speak of obligation – to ensure this respect.
Where international humanitarian law is not respected, however, human suffering becomes all the more severe and the consequences become all the more difficult to overcome. It has, as far as the consequences are concerned, to be reminded that past wars are among the causes of new wars. This is particularly evident for wars which have been waged in total disregard of the rules of international humanitarian law. This is not a particularly encouraging statement with some past and present wars in mind. Political quick fixes will however never heal the wounds of humiliation and other wounds in the near or medium term. It is important to think of this in time. Deliberate targeting of civilians, indiscriminate attacks, forced displacement of populations, destruction of infrastructure vital to civilian populations, the use of civilians as human shields, rape and other forms of sexual violence, torture, destruction of civilian property and looting – these and other violations of international humanitarian law cause untold suffering in armed conflicts throughout the world. As witnessed most recently in Darfur, for example, we have to recognize that the ability of humanitarian organizations to protect the civilian population in armed conflict is often extremely limited. Indeed, the objective of protecting human dignity through ensuring respect for the law involves staggering practical challenges. This statement is far from new. Some of you may, while following the Darfur tragedy, have thought of the report of the International Commission on Intervention and State Sovereignty entitled " The responsibility to protect " , published in December 2001, and noted how far we are from a world w here all States take this responsibility seriously, even with regard to their own civilian population. I hope the behaviour of the main violators of international humanitarian law will not in the end be honoured by an international community which agrees to safe areas conceived as a plan to re-engineer the social structure of Darfur. We do not oppose safe areas as short term, transitional measures for imperative security reasons, but we firmly oppose them as a disguised way to political re-engineering of the social fabric of the region.
The ICRC, cooperating closely with the Sudanese Red Crescent and other National Red Cross and Red Crescent Societies, is providing non-food assistance to 300 000 internally displaced persons in 30 locations in Darfur. As you know, the ICRC has a special responsibility for IDP's as a consequence of armed conflicts. The ICRC provides also food to more than 50 000 and may go up to 400 000 by the end of 2004. Among the other activities I mention the rehabilitation of four hospitals with 860 beds.
Sudan is at present the largest humanitarian operation of the ICRC. 175 Delegates and almost 1 200 Sudanese ICRC staff are working in Sudan, more than 90 Delegates and 400 Sudanese staff directly for the operation in Darfur. The Institution has the ability to cross the lines and is in contact with all parties to the conflict.
The struggle to uphold humanitarian law and protect human dignity is further complicated by new or aggravated characteristics of armed conflict – new actors capable of engaging in violence; the fragmented nature of conflicts in weak or failed States; the overlap between political and private aims; an increasingly sophisticated technology employed by those who possess it; asymmetrical warfare; an uncontrolled availability of large quantities and categories of weapons; and an increasing involvement of civilians in armed conflict. These and other characteristics of contemporary armed conflicts have caused some to question the pertinence of current international humanitarian law, making the challenge of ensuring respect for international law all the more difficult.
Some of the new characteristics of armed conflicts might contain the potential for clarification of existing law – for example, the notion of direct participation in hostilities and related conduct of hostilities issues, or the concept of occupation. Nevertheless, the ICRC joins with the participants in the 28th International Conference in declaring that we are “[c ] onvinced that the existing provisions of international humanitarian law form an adequate basis to meet challenges raised by modern conflicts.” Its provisions establish a delicate balance between military imperatives, on the one hand, and the requirements of humanity, on the other. The problem of respect for the law is not primarily related to the adequacy of the rules themselves, but is mainly the result of a lack of political will on the part of the parties to armed conflicts to adhere to the law.
It is for this reason that we are gathered today: to discuss what measures can and should be taken to strengthen respect for international humanitarian law and the provisions of other bodies of law applicable in armed conflict. Each one of us, in our respective capacities and with our distinctive mandates and experiences, brings significant insights to these deliberations. We look forward to hearing you r thoughts and contributions in the coming days.
Measures aimed at improving respect for the existing rules of international humanitarian law are central to the mandate of the ICRC. In its daily work in situations of armed conflict, it reminds the parties of their obligations under international humanitarian law, and it tries to protect the lives and dignity of those made vulnerable by the conflict and provide them with assistance. Through these and other activities, the goal of improving respect for international humanitarian law both in peacetime and in time of armed conflict will remain a permanent institutional priority.
Over the years, States, supported by other actors, have devoted considerable effort to devising and implementing peacetime measures, as required in various humanitarian law treaties. Dissemination of international humanitarian law among armed forces and armed groups has been reinforced. International humanitarian law has been increasingly incorporated into military manuals and doctrine. Domestic legislation and regulations have been progressively adopted or adapted. Other necessary structures have been put in place to give effect to the rules contained in the relevant treaties.
International humanitarian law is increasingly being considered as part of the political agenda of governments. In many States, specific advisory bodies have been created. For example, National international humanitarian law Committees – which advise and assist governments in i mplementing and spreading knowledge of humanitarian law – have been established in 68 countries.
Additionally, by encouraging the national prosecution of war crimes and, more significantly, by establishing international bodies such as the ad hoc international criminal tribunals and the International Criminal Court, the international community has concentrated its efforts since the early 1990s on the repression of serious violations of international humanitarian law.
The ICRC has been active in advising and assisting States and other actors in these significant developments. It regularly assists with dissemination activities for armed forces and in efforts to develop within academic circles and civil society an awareness of international humanitarian law. Through its Advisory Service, in particular, the ICRC continues to encourage and give technical advice to States on the ratification and national implementation of international humanitarian law treaties. It has promoted and continues to promote the ratification of the Rome Statute of the International Criminal Court.
This question was the focus of a series of regional expert meetings the ICRC conducted last year on the subject, “Improving Compliance with International Humanitarian Law”. Those of you who participated in these expert seminars – in Cairo, Pretoria, Kuala Lumpur, Mexico City, and Bruges – will recall the dynamic and forward-thinking discussions on measures that might be taken to improve respect for the law during armed conflicts. Participants discussed a range of measures, including existing international humanitarian law mechanisms and what new proposals might be considered. Significant emphasis was placed on ensuring better compliance with the law in non-international armed conflicts. The innovative proposals made during the series of seminars have provided a rich source of inspiration for the ICRC as it considers what initiatives might be undertaken in the future.
I highlight some of these seminars’ conclusions, in particular those that the ICRC will give priority in its future efforts to create conditions for better respect for humanitarian law.
Any discussion on how to strengthen measures favoring respect for humanitarian law during armed conflicts must begin with a reflection on the obligation contained in Article 1 common to the four Geneva Conventions and Additional Protocol I – that is, the responsibility for States to “respect and ensure respect” for these instruments in all circumstances.
In addition to a clear legal obligation on States to “respect and ensure respect” for international humanitarian law within their own domestic context, common Article 1 also requires that States neither encourage a party to an armed conflict to violate international humanitarian law nor take action that would assist in such violations. Furthermore, as recently affirmed in an Advisory Opinion from the International Court of Justice, common Article 1 is generally interpreted as enunciating a responsibility on States not involved in armed conflict to ensure respect for international humanitarian law by the parties to an armed conflict, by means of positive action. Third States have a responsibility, therefore, to take appropriate steps – unilaterally or collectively – against parties to a conflict who are violating international humanitarian law, in particular to intervene with States or armed groups over which they might have some influence to stop the violations.
Cases where States are prepared to take action to secure respect for international humanitarian law in conflicts in which they are not involved are rare. Are they rare because we are not doing enough to spur them on, or are they rare because other interests carry more weight for States? For its part, the ICRC is convinced of the significant role third States can play, and continues to encourage States to consider taking such positive action.
In addition to common Article 1, the Geneva Conventions and Additional Protocol I provide for a number of other implementation mechanisms, which will be discussed in greater detail in Session Two. I would like to highlight two of these mechanisms that, in the opinion of the ICRC, have particular potential and should be utilized and strengthened.
First, renewed attention should be given to the International Fact-Finding Commission, established pursuant to Article 90 of Additional Protocol I and formally accepted by 67 States. This independent body of international experts stands ready to aid in the efforts to improve compliance with humanitarian law. The Commission offers two potentially valuable services: to enquire into alleged grave breaches or other serious violations of the Geneva Conventions or Additional Protocol I, and to facilitate through its good offices the restoration of an attitude of respect for these treaties. Although its formal competence extends only to situations of international armed conflict, the Commission has expressed a willingness to conduct investigations into non-international armed conflicts.
Despite the Commission’s own efforts, and the support of the ICRC and others, no cases have yet been referred to it. This is due, in large part, to a lack of willingness by the parties to an armed conflict to request or give their consent to an investigation, which is required before the Commission can act. The potential influence of the Commis sion must not be discarded prematurely, before it has been given the opportunity to show what it can provide. We should continue to strive to improve awareness of the Commission and advocate its use. Third States or others with influence over parties to an armed conflict should encourage the parties to agree to a Commission investigation. The United Nations could be encouraged to utilize the Commission, perhaps through a Security Council mandate pursuant to Chapter VII of the UN Charter.
Finally, more emphasis should be placed on the second potential role of the Commission – its " good offices " function. Through its good offices, the Commission's efforts to restore respect for humanitarian law have the advantage of being " forward-looking " and may be welcomed by the parties to a conflict as less threatening to State sovereignty.
A second potentially valuable measure to be kept in mind are meetings of the High Contracting Parties, provided for in Article 7 of Additional Protocol I. " The depositary of this Protocol shall convene a meeting of the High Contracting Parties, at the request of one or more of the said Parties and upon the approval of the majority of the said Parties, to consider general problems concerning the application of the Conventions and of the Protocol. " Although some might consider that a discussion of specific situations of violation would have more potential impact, nonetheless, a discussion of " general problems " would provide a significant opportunity to achieve State consensus on interpretations of general issues of international humanitarian law.
The regional seminars resulted in a wealth of proposals for new measures or mechanisms for improving respect for humanitarian law. Proposals included a system of either ad hoc or periodic reporting and the institution of an individual complaints mechanism; the creation of a committee of States or of independent international humanitarian law experts to serve as a " Diplomatic Forum " for addressing situations of humanitarian law violations; and the establishment of an Office of a High Commissioner for international humanitarian law that could be created as a " treaty body " to the Geneva Conventions and their Additional Protocols. Although these and other proposals likely will provide inspiration for future developments, participants nonetheless expressed some concern that the general international atmosphere at present is not conducive to the establishment of new mechanisms.
Given that the majority of contemporary armed conflicts are waged within the boundaries of States, the lack of respect for humanitarian law in situations of non-international armed conflict is of particular concern. How we can achieve better compliance in this type of conflict must therefore be a priority. This challenge was the subject of considerable discussion at the ICRC regional expert seminars in 2003, as well as in other fora, such as a joint ICRC-African Union meeting in May 2004 and the recent Informal High-Level Expert Meeting organized by the Government of Switzerland and the Harvard Program on Humanitarian Policy and Conflict Research.
A second useful strategy in non-international armed conflicts is to encourage armed groups to issue unilateral declarations, stating clearly their commitment to comply with humanitarian law. The aim of such declarations is to provide a self-disciplining effect on the armed groups, in particular where groups are concerned about their public image and reputation. Although there is a risk that unilateral declarations might be made for purely political motives, they might still serve a positive function as an additional tool of leverage to encourage compliance with international humanitarian law.
A similar strategy would be to encourage armed groups to adopt internal codes of conduct on respect for international humanitarian law.
A final tool that, depending on the context, is worth considering is a possible grant of immunity from prosecution for mere participation in hostilities. Given that armed group members are likely to face maximum penalties for their participation in a non-international armed conflict – even if they respect humanitarian law – they have little legal incentive to abide by the norms. A State grant of immunity to armed group members for participating in the hostilities – which of course could never include an amnesty or immunity for alleged war crimes – might provide armed groups with an incentive to comply with humanitarian law. Indeed, Protocol II additional to the Geneva Conventions encourages States to grant the " broadest possible " amnesty to persons who have taken part in hostilities at the end of an armed conflict, on the understanding that such amnesties are usually necessary to foster national reconciliation.
The ICRC often uses these and other tools or mechanisms in its attempts to influence armed opposition groups party to non-international armed conflicts to increase respect for international humanitarian law. At the suggestion of participants to last year's regional expert seminars, the ICRC is currently undertaking a study of " best practices " of these tools, with the intention of better understanding where they have been most successful and thereby strengthening its work with parties to non-international armed conflict.
We discussed the issue of incentives which might lead non-State actors involved in armed conflicts to greater respect for international humanitarian law last week with our international advisers who have very different backgrounds and come from different cultures. The main conclusion of the discussion was that the degree of sensitivity shown by armed non-State actors with regard to such incentives depends crucially on the objectives of their armed struggle.
Informed by its operational efforts and analysis of armed conflicts, the ICRC continues to contribute to the interpretation, clarification and, if proved necessary in light of changing realities, the development of international humanitarian law.
A number of other subjects are also priorities for the ICRC in the coming years, including initiatives on biotechn ology, arms and humanity; and the problem of “the missing” – that is, people unaccounted for as a result of armed conflict or internal violence.
Through these and other initiatives, the ICRC continues to strive to support humanitarian action as a whole and to strengthen the protection of war victims.
As we are all well aware, a lack of respect for the law often leads to a lack of respect for humanitarian action. Threats and attacks deliberately targeting the ICRC – as well as other humanitarian organizations and their personnel – have raised questions about the ability of these organizations to fulfill their mandate and have generated debate concerning the future of humanitarian action.
The ICRC believes that the security of humanitarian action can best be fostered through increased respect for the rules of international humanitarian law and the rigorous preservation of space for independent and neutral humanitarian action. The preservation of this space also requires that States refrain from giving a humanitarian label to the activities of their armed forces, and from integrating humanitarian action with their political, military or economic response to crises. But in saying so, I am not overlooking the fact that there can be situations where humanitarian organizations are not in a position to carry out their activities, and humanitarian activity by the military mi ght be necessary. But it must be proven – when giving humanitarian tasks to the military – that there are urgent needs requiring humanitarian action that humanitarian organizations are not in a position to meet.
The blurring of lines between military and humanitarian activities clearly adds to the security risks faced by humanitarian organizations. In the future, as now, the ICRC will continue to carry out independent and neutral humanitarian action in order to secure and maintain worldwide access to those adversely affected by armed conflict. Credible independence and neutrality offer the best likelihood of being accepted by all parties to a conflict, be it local, regional or global. Sustained dialogue with all actors involved in armed conflicts – however they may be qualified by the international community – is essential to the ICRC's security policy. The ICRC is aware of the fact that it is more important today than it was in the past to project a credible and clear identity in all contexts in which it is working.
Ladies and Gentlemen,
I often ask myself whether the global environment has become more favourable or more hostile to progress, compared to, say, 10 years ago, in terms of respect for international humanitarian law and other bodies of law protecting human life and human dignity and shall conclude my talk by offering some personal thoughts which might be of interest with regard to this issue.
On the one hand, the environment has become more hostile in terms of respect for international humanitarian law because the number of armed groups that simply do not care, about others or about their own members, seems to be on the increase;
it is more hostile, because of a growing tendency to dehumanise or demonise the adversary. The link with the rise of fundamentalism – not only Islamic fundamentalism – is obvious. Nor am I thinking only of religious fundamentalism. Fundamentalists, as you know, they think they are always right. They reduce the richness and complexity of human beings to some very few features – or even to a single one – and they are very good at explaining the world in very simple terms, which is what makes them so successful. Their horror vision is a complex human being who takes on many different identities;
it is more hostile because some people continue to have serious difficulties in achieving a decent balance between legitimate security concerns and the obligation to respect human dignity;
it is more hostile, because expectations of reciprocity in terms of respect for international humanitarian l aw no longer play an important disciplining role. Which measures could compensate for this loss is one of the interesting questions we have to ask ourselves. Among such measures, I would include training and educational programmes, and the determined fight against impunity;
it is more hostile, because the High Contracting Parties may be less inclined to take the potentially awkward steps of approaching other Parties with a view to securing their respect for the Geneva Conventions, when doing so might result in losing their support in connection with other, mainly security-related issues.
On the other hand, the environment has become more favourable to progress in terms of respect for international humanitarian law
because international humanitarian law has a visibility and attracts a level of attention one would not have dreamed of ten or fifteen years ago. Debates related to Iraq, Sudan and oth er places have contributed to underline the intrinsic value of this body of law. The interest in the ICRC's educational programme for young people aged between 13 and 18 to help them embrace humanitarian principles, to give but one example, is amazing – all the more so when one considers that the States that have introduced the programme belong to different civilizations;
it is more favourable, because the normative development in the field of international humanitarian law over the last ten years has been quite remarkable, the adoption of the Rome Statute of the International Criminal Court standing out as particularly important;
it is more favourable, because the space for impunity, even if a lot of tenacity and some patience are needed, will gradually narrow, thanks to the ICC, thanks to the ad hoc tribunals, thanks to progress being done in the different national legal orders in order to have the basis for prosecuting crimes under the Rome Statute and other legal instruments;
it is more favourable, because persons whose lives and dignity are under threat can make their voices heard better than in the past;
it will be more favourable if the commitment contained in the Declaration to the 28th International Conference of the Red Cross and Red Crescent " to protect human dignity in all circumstances by enhancing respect for the relevant law and reducing the vulnerability of populations to the effects of armed conflicts " will be taken seriously.
The attitude of States with regard to Article 1 common to the Geneva Conventions remains crucial. To the extent they take this Article seriously there is real hope for improvement. It is useful to point out, particularly at this time, that respect for human life and dignity is also a long-term security investment. Open and hidden forms of humiliation have the opposite effect. States may no longer have the same influence over the behaviour of armed no n-State actors that they had during the Cold War and before the latest acceleration in the process of globalisation, but they still hold considerable sway. There are, to be sure, armed actors pursuing goals totally irreconcilable with the rules of international humanitarian law, and incentives to respect the rules of international humanitarian law will have no influence on them. But others may be susceptible to the types of incentives mentioned above, which we therefore have to try, while remaining sufficiently pragmatic in specific situations.
If I remain confident in progress implementing and improving respect for international humanitarian law, it is not primarily because of existing or new mechanisms without underestimating their importance; rather, it is because I have understood better how many people, in the ICRC, National Red Cross and Red Crescent Societies, the UNHCR and in other organizations, are really determined to work in this direction – be they in the field or working in international law, humanitarian diplomacy or in other domains. They will not be diverted by hidden agendas, not ensnared by propaganda and not intimidated by those who respect no human values at all.
My solid hopes rest mainly on them. I thank them for their action, and you for listening.