The relevance of international humanitarian law in contemporary armed conflicts
Committee of legal advisers on public international law (CADHI), 28th meeting Lausanne, 13-14 September 2004 - Intervention by Dr. Jakob Kellenberger, President of the ICRC
Madam Chair, Excellencies, Ladies and Gentlemen,
Let me begin by saying how pleased I am to be here with you today and to be able to share some thoughts with you about the relevance of international humanitarian law (IHL) in contemporary armed conflicts. I would also like to thank all of you for having granted the International Committee of the Red Cross (ICRC) observer status, giving it the opportunity to contribute to the debate in this important forum.
As I am sure you know, the promotion and strengthening of international humanitarian law are key activities of the ICRC. These activities in the legal field are closely linked to its humanitarian work in over 80 countries with around 12’000 staff members throughout the world. They try to protect and assist people affected by armed conflicts and situations of internal violence and contribute to respond to one of the most pressing challenges today, which is respect for IHL by all the parties to armed conflicts. With all you hear about " new " wars you may be surprised when I tell you that, unfortunately, you see very little " newness " . Non-international armed conflicts, most of the time characterised by low intensity of fighting and high intensity of suffering by the civilian population, have been the main feature of the conflicts landscape for many years. As you would guess, they cost much more human lives than international terrorism which does not mean I am not aware of the horrible human consequences of terrorism.
The ICRC's largest humanitarian operation at present is in Darfur. The ICRC, cooperating closely with the Sudanese Red Crescent and other National Red Cross and Red Cres cent 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 persons, a figure that may go up to 400 000 by the end of 2004. Among the many other activities I would like to 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 tragedy in Sudan is just one example of the ICRC’s involvement worldwide. More generally, its activities range from protection and assistance work in close contact with those affected by armed conflict, internal disturbances and other situations of violence, to the promotion, clarification and development of humanitarian law. For the ICRC, protection and assistance activities are very closely linked. They are in fact the two sides of the same coin, mutually reinforcing each other.
What I propose to do in this brief presentation is to first outline some current challenges to the relevance of IHL in contemporary armed conflicts, to then speak about the issue of weapons and war, and to finally address the question of national implementation of IHL.
While IHL was, for many decades, considered to be a field for specialists, the importance of its application in practice has, over the past few years, become a focus of public attention in a way that can only be welcomed.
It must be admitted that the current visibility of IHL is in large measure due to what is known as the " war against terrorism " . The ho rrific attacks of 11 September 2001 and the response thereto brought about a fairly widespread questioning of the adequacy of international humanitarian law to deal with current forms of violence. The main question asked was whether the existing body of IHL rules is indeed capable of addressing " terrorism " .
Where the level of armed conflict has been reached, whether it be international or non-international armed conflict, the rules of IHL, which aim primarily to protect persons not or no longer participating in hostilities, must be fully respected. Thus, the rules of international armed conflict were fully applicable to the war in Afghanistan, just as they were later applicable to another armed conflict - waged for different reasons - in Iraq.
In fact, it may be said that the problem we have faced and are still facing in terms of IHL application to the " war against terrorism " has been twofold. On the one hand, we have witnessed situations in which the applicability of specific IHL rules has been contested even though the general application of IHL to the situation was not. This has led to troubling denials of some of the protections provided by IHL to specific categories of persons, an issue which the ICRC has been attempting to rectify. On the other hand, we have heard interpretations according to which IHL covered situations that did not amount to an armed conflict in the legal sense and in which the persons affected should have been protected by domestic law and international human rights law instead. Once again, this is an area that the ICRC has strived to clarify.
In our view, international humanitarian law and human rights law must both be respected in the fight against terrorism: IHL when the violence has reached armed conflict level, in addition to human rights law, and human rights law when it has not. IHL and human rights law are distinct, but complementary bodies of law whose application, al ong with refugee law where appropriate, provides a framework for the comprehensive protection of persons in situations of violence. It is of some concern, therefore, that IHL and human rights are sometimes claimed to be mutually exclusive.
As we know, the fight against terrorism has not only led to an examination of the adequacy of IHL, but also to a re-examination of the balance between state security and individual protections, in many cases to the detriment of the latter. The ongoing debate on the permissibility of torture is an example. After decades of improvements in international standards governing the treatment of people deprived of liberty, discussions on whether torture might in some situations be allowed have resurfaced, despite the fact that this abhorrent practice is a crime under IHL and other bodies of law and is prohibited in all circumstances.
Extra-judicial killings and detention without application of the most basic judicial guarantees have proven to be another consequence of the fight against terrorism. Other examples could be cited as well, such as the recent queries on whether the rules on the questioning of detainees depend on their legal status. We should be perfectly clear on this point: there is only one set of rules for the interrogation of persons detained, whether in international or non-international armed conflict, or, indeed, outside of armed conflict.
The balance between legitimate security requirements and the respect of human dignity is particularly fragile with respect to methods of interrogation. The key issue is not whether a detainee can be interrogated, but rather, what means may be used in the process. Neither a prisoner of war, nor any other person protected by humanitarian law can be subjected - it must be stressed - to any form of violence, torture, inhumane treatment or outrages upon personal dignity. These acts, and others, are strictly prohibited by international law, includ ing humanitarian law. Under the laws of war it is the detaining authority that bears full responsibility for ensuring that no interrogation method crosses the line. I do not think that it is a naive assumption that the respect for human dignity can be seen and is a long-term security investment.
The ICRC, in its report " International humanitarian law and the challenges of contemporary armed conflicts " concluded that international humanitarian law, in its current form is, on the whole, adequate as a legal basis for responding to the challenge of contemporary international armed conflicts. The 28th International Conference of the Red Cross and Red Crescent shared this conviction in its final declaration.
This is not to say that there is not or will not be scope or need for development of this body of law in new situations. But if situations or developments are being qualified as " new " , at least two questions have to be answered clearly: what is " new " ? what is the legal regime applicable to the new situation?
In closing this portion of my presentation, I would like to reiterate that the legal and moral challenge presently facing the international community is to find ways of dealing with new forms of violence while preserving existing standards of protection provided by international law, including international humanitarian law.
The biggest challenge of all is improving compliance with the rules of IHL in non-international armed conflict, especially by non-State armed groups because the vast majority of contemporary armed conflicts are waged within the boundaries of States and the respect for IHL is particularly poor in these contexts. The ongoing conflict in Darfur is a brutal reminder of the consequences of non-respect for those rules in internal armed conflicts. And while most attention has in recent years been directed, in terms of IHL adequacy to the so-call ed " war on terror " , it is particularly important and urgent from a humanitarian point of view to work on mechanisms and tools that can lead to better respect for IHL in non-international armed conflicts. This does and must include some serious thinking on how armed groups might be provided with incentives to comply with humanitarian law.
I turn now to some issues related to weapons and IHL.
The regulation of weapons is the field of IHL that has evolved most rapidly in the last decade. In less than ten years, the use of blinding laser weapons and anti-personnel landmines has been banned. The Convention on Certain Conventional Weapons has been extended to cover non-international armed conflicts and a new protocol on explosive remnants of war has been added.
While these developments are remarkable, they also reflect the necessity of ensuring that IHL keeps up with both the rapid development of technology and humanitarian problems on the ground. However, preserving fundamental norms governing weapons requires not only adopting new norms, when necessary, but also defending old norms from new challenges.
One of the most ambitious and successful efforts in this field has been the adoption and implementation of the Convention on the Prohibition of Anti-personnel Mines and on their Destruction - the Ottawa Treaty - a process in which the ICRC has been deeply involved from the outset. 143 States are now party to the Convention. The global use of anti-personnel mines has decreased dramatically. States Parties have destroyed over 37 million anti-personnel mines, and mine clearance is taking place in most of mine-affected States Parties. Where the Convention's norms are being fully applied, the number of new mine victims has decreased significantly, in some cases by two thirds or more.
However, the scourge of landmines is far from over. The most crucial phase in the life of the Convention will be the next five years leading up to mine-clearance deadlines that begin to fall in 2009. The Convention's first Review Conference referred to as the Nairobi Summit on a Mine Free World is a critical moment for political leaders from all States Parties to reaffirm their commitment to this unique Convention, to commit the resources needed to ensure that its promises are kept and to adopt plans to address the remaining challenges.
I encourage those few European States that have not yet joined this Convention to do so before the Nairobi Summit or to announce there a date by which they intend to adhere.
You as Legal Advisors to States Parties can also play an important role by lending your efforts to developing common understandings by the Nairobi Summit that will promote consistent State practice on issues related to articles one to three of the Convention. The issues in question include the level of mines permitted for training purposes, mines with sensitive fuses and joint military exercises.
In contrast to the progress on anti-personnel mines the broader humanitarian problems caused by a range of explosive remnants of war are set to get worse if urgent action is not taken. Each new conflict is adding to the already huge burden of clearance in affected communities a burden which existing resources are already inadequate to address. The recently adopted Protocol on Explosive Remnants of War to the Convention on Certain Conventional Weapons provides a framework for both preventing and addressing the problem of explosive remnants of war. I urge all member States of the Council of Europe to ensure that its ratificat ion is high on their legislative agendas in the coming year. Sweden was the first State to ratify the Protocol.
New norms are also slowly evolving in the field of arms transfer controls with important implications for IHL. The easy access to arms, particularly access to small arms and light weapons, by those who violate international humanitarian law has severely undermined its respect and caused a major part of the civilian suffering in conflicts throughout the world in recent decades.
Last year States at the 28th International Conference of the Red Cross and Red Crescent recognised that, to " respect and ensure respect " for IHL, controls on arms availability and transfers must be strengthened. They supported the inclusion of criteria on respect for this law by recipients of arms in national laws and policies on arms transfers. I appeal to you to ensure that these commitments are followed up both at the national level and, for Member States of the European Union, in the current review of the EU Code of Conduct on arms transfers.
One of the most ancient norms in war has been the prohibition on poisoning and the deliberate spread of disease. The prohibition of the use of chemical and biological weapons is enshrined in the 1925 Geneva Protocol and reinforced by the Biological and Chemical Weapons Conventions. However, in the face of stunning advancements in the life sciences and increasing interest in certain types of so-called " non-lethal " weapons, vigilance is needed to ensure that current norms are respected and reinforced. Two years ago, the ICRC launched a public appeal on " Biotechnology, Weapons and Humanity " calling on governments, the scientific community and industry to reaffirm existing norms and take a wide range of preventive actions. The ICRC has followed this up with an extensive program of outreach to these constituencies. All of these actors together bear responsibility to ensu re that the " biotechnology revolution " is not harnessed for hostile purposes.
In response to the growing interest in chemical incapacitants for both law enforcement and military purposes the ICRC has also encouraged States Parties to the Chemical Weapons Convention to begin a process of clarifying precisely what is permitted under the Convention's law enforcement provisions. We again invite you to engage with the ICRC and with other States Parties in addressing these concerns.
Finally, let me address some issues that are, in the view of the ICRC, of particular relevance to the implementation of IHL, mainly at the national level.
At the international level States must not only respect but also " ensure respect " for humanitarian law: They must act, whether through bilateral or multilateral channels, to ensure that parties to an armed conflict comply with the law. They are also encouraged to accept the competence of the International Fact-Finding Commission established under the first Additional Protocol of 1977 to enquire into violations of humanitarian law. More recently, with the establishment of the International Criminal Court, an important step has been taken to punish war crimes at the international level.
However, humanitarian law focuses above all on effective implementation at the national level. All States have the obligation to disseminate its rules as widely as possible both within the armed forces and to the public. Many would argue that this is the most important, and effective, means of promoting compliance.
Humanitarian law also seeks to ensure that individuals are held responsible for their action. The most serious violations are considered " war crimes " criminal acts for which individuals should be tried and punished. Some war crimes the grave breaches of the Geneva Conventions and their first Additional Protocol entail particular obligations. States must enact criminal legislation punishing grave breaches, regardless of the offender's nationality or the place of their offence. Moreover they must search for those offenders and either try them before their own courts or extradite them for trial elsewhere.
States are obliged to take action to prevent the misuse of the red cross, red crescent and other protective emblems and signals prescribed by humanitarian law. This is likely to require not only a strict system of control, but also the imposition of penalties on those who misuse the emblems and thereby undermine their protective value. Humanitarian law also sets out a range of fundamental guarantees including rules on humane treatment, legal procedures and conditions of detention and States must ensure that these guarantees are reflected in their national law.
Furthermore, States must take a range of administrative measures to ensure that they are able to give full effect to humanitarian law in the event of conflict. Civilian and military planning procedures must take full account of the rules of humanitarian law. Protected persons and sites must be properly identified. Personnel qualified in humanitarian law must be recruited. Provision must be made for materials, specialists units and other arrangements that may be required in the event of conflict.
The implementation of humanitarian law covers a wide range of areas. As such, it falls within the responsibility and expertise of a variety of government ministries and national institutions. It is essential to ensure that there is adequate coordination between these bodies and that full use is made of the expertise available at the national level. To this end, a number of States have established national committees on humanitarian law. Today 68 national IHL committees exist worldwide. These bodies are an efficient measure for the implementation of IHL obligations at the national level. In order to promote an interactive discussion, the ICRC's Advisory Service on International Humanitarian Law has created an Electronic Forum for these National Committees.
22 Member States of the Council of Europe have established national committees for the implementation of humanitarian law. The work of these committees has proved very useful and the ICRC cooperates closely with them.
The ICRC’s Advisory Service – with experts in Geneva and in several delegations - is committed to help the national authorities adopt and implement the legislative, regulatory and administrative measures required to ensure respect for the law at the national level. One of the activities of the Advisory Service is to promote the ratification of IHL treaties, in particular the four Geneva Conventions and their Additional Protocols. If all States members of the Council of Europe are party to the 4 Geneva Conventions, a few States are still not bound by the 2 Additional Protocols of 1977. 34 States have accepted the competence of the International Fact-Finding Commission.
Many of the Member States are also party to other treaties, including the 1998 Statute on the International Criminal Court, the 1997 Ottawa Convention on anti-personnel landmines and the 1980 Conventional Weapons Convention. The 25th anniversary of this Convention in 2005 will be an excellent opportunity to ensure the widest possible participation in that Convention and its five Protocols, as well as in its amended Article 1, which extends its scope of application to non-international armed conflicts.
An important anniversary is also the 50th anniversary of the 1954 Hague Convention for the protection of cultural property in the event of armed c onflict which we are celebrating this year. Half a century after the adoption of this treaty much remains to be done to ensure universal ratification of the Convention and of its Second Protocol of 1999.
I would like to appeal to the member States of the Council of Europe to consider favourably participation in these treaties in order to render them universal. As we all regrettably know, this is not a guarantee for respect, but we also know that it is an essential precondition for respect.
The importance of national implementation of IHL was reaffirmed by the 28th International Conference of the Red Cross and Red Crescent. The Agenda for Humanitarian Action adopted by the Conference and numerous pledges of States and National Societies focused on participation in IHL treaties and on their implementation at the domestic level.
Towards the end of an address which I gave beginning of September in Sanremo, I asked myself whether the global environment had become more favourable or more hostile in terms of respect for international humanitarian law and other bodies of law protecting human life and human dignity. These were my personal thoughts and I would be most interested in knowing how you feel about the one or other element.
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, think they are a lways 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 law 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 not parties to an armed conflict may be less inclined to take the potentially awkward steps of approaching Parties to an ongoing armed conflict 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 other 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.
I thank you for your attention and look forward to our discussion.