Vulnerabilities in armed conflicts
14th Bruges colloquium – October 17 and 18, 2013. Keynote address Ms. Christine Beerli, ICRC vice-president.
Ladies and Gentlemen,
It is a great pleasure to be here with you at this 14th session of the Bruges Colloquium and to have the privilege of making a few introductory remarks on the topic of discussion over the next two days. Our theme this year – Vulnerabilities in Armed Conflicts – is particularly far-reaching and touches on some issues which are at the core of ICRC's mandate, i.e. the protection and assistance of the most vulnerable in armed conflict situations.
The issue of vulnerabilities in armed conflicts was seen as particularly appropriate to discuss this year, which corresponds to the 150th anniversary of the International Committee of the Red Cross. In 1863, the "International Committee for Relief to the Wounded" – which later became known as the ICRC – was created in order to assist precisely a particular vulnerable group: the wounded and sick combatants. The ICRC's mandate expanded then quickly to conduct humanitarian action in favour of all victims of armed conflicts, but the notion of vulnerability definitely remained at the core of our action.
The selection of this theme has also been guided by the Four-year Action Plan for the Implementation of International Humanitarian Law (IHL) which has been adopted in 2011 by the 31st International Conference of the Red Cross and Red Crescent, which brings together all the components of the Movement and the States Parties to the Geneva Conventions. The objectives of this Action Plan included notably those of enhancing the specific protection afforded to certain categories of persons, in particular children, women and persons with disabilities and of enhancing access by civilian populations to humanitarian assistance in armed conflicts. All members of the International Conference were also invited to submit pledges in relation to the recommendations contained in the Action Plan. We call on members of the International Conference to continue working tirelessly on the implementation of the Action Plan.
Sometimes, IHL would need to be further strengthened or clarified in order to ensure an adequate protection to the most vulnerable in armed conflict situations. On most occasions, however, the problems do not lie in the law but rather in the lack of respect for the law."
Giving the richness and variety of the theme "vulnerabilities in armed conflicts", it would be illusionary to pretend that we will be able to discuss exhaustively the issue in two days. It is our hope, however, that the selected issues we propose to tackle will spotlight some of the most topical and interesting problems the international community has to face as regards vulnerabilities in armed conflicts. In order to do so, we have decided to adopt a transversal approach and to address vulnerabilities in the context of some key IHL themes – such as detention or the conduct of hostilities – rather than choosing some vulnerable groups (such as women, children, persons with disabilities etc). We have also selected some themes which are close to our hearts at the ICRC – such as sexual violence or the unlawful recruitment and use of children in hostilities – which our organisation has particularly highlighted this year in its recent statements before the United Nations General Assembly in New York.
It has to be noted also that, in order to be comprehensive and meaningful, the topic of vulnerabilities in armed conflict situations has to be discussed not only from a purely IHL perspective, but also by taking into account international human rights law, which usefully complements IHL in armed conflict situations as long recognized by the Red Cross and Red Crescent Movement. This is why, in most sessions, we have included presentations that address the issue of vulnerabilities from an international human rights law perspective.
I will now take in turn and say a few words about each of the different topics we will be discussing in the next two days.
During this colloquium, we will start by discussing the issue of vulnerabilities in detention. Women, children, the elderly and the disabled are among the most vulnerable in such situations, and mixing groups of detainees is frequently among the causes of the problem. Holding women together with men poses obvious risks of abuse but may also indirectly affect their enjoyment of other protections. The fact that a courtyard is communal may compromise women’s access to fresh air, since mixing with men could put them at risk and indeed may not be contemplated or permitted for cultural reasons. Likewise, when prison corridors are open to both sexes women often remain locked in their cells. Their access to basic facilities is limited or blocked and their specific health and hygiene needs may simply not be met. Pregnant women and nursing mothers have particular needs, requiring supplementary nutrition and appropriate pre- and post-natal care so that they and their infants remain in good health.
Similarly, holding children together with adults exposes them to a range of risks to their physical integrity, including sexual abuse, and can have harmful consequences for their psychological development. Children may be detained on their own account or because they accompany parents in detention. They require care and specific protection, including protection against abuses and inhuman or degrading disciplinary measures. Prison conditions and facilities are rarely appropriate to their needs and vulnerabilities. In numerous situations, these children are deprived of access to appropriate education or vocational training. They may also suffer from a lack of sufficient access to recreational and physical activity. They rarely enjoy adequate communication with the outside world, including with their parents, which may seriously affect their emotional development. In situations of armed conflict, children who were associated with an armed force or armed groups should benefit particular attention and care.
Most of these concerns, as well as the needs of other categories of persons such as the elderly and persons with a disability, are not sufficiently addressed under current international humanitarian law governing non-international armed conflicts.
Human rights law and internationally recognized standards can usefully complement IHL when it comes to the protection of vulnerable groups in detention. However, some gaps remain. To the extent, for instance, that organized non-state armed groups are not directly bound by human rights law, it is clear that this body of law does not suffice to ensure the protection of detainees – and the most vulnerable in particular – by all parties to a non-international armed conflict. In this regard, a key question is what protection standards should be reasonably expected of the range of non-state armed groups encountered on in contemporary conflicts? Given the variety of non-state armed groups, the answer to such a question is probably not clear-cut, but they merit a reflexion if the law is meant to be applied.
As many of you may know, the ICRC has been invited by Resolution 1 of the 31st International Conference to pursue further research, consultation and discussion in cooperation with States to identify and propose a range of options and its recommendations to ensure that international humanitarian law remains practical and relevant in providing legal protection to all persons deprived of their liberty in relation to armed conflict. In this framework, the question of how to strengthen the protection of persons with particular needs and vulnerabilities detained in relation with non-international armed conflicts is part of the discussion.
The second topic we will be addressing today is vulnerabilities in the context of hostilities. In order to exemplify this issue, we have chosen to discuss how the delivery of impartial health care in general – and the wounded, sick, shipwrecked in particular – can be endangered by hostilities. As highlighted by the ICRC-led project of the Red Cross and Red Crescent Movement Health Care in Danger, which is aimed at improving the efficiency and delivery of effective and impartial health care in armed conflict and other emergencies, it is not rare unfortunately that the wounded and sick as well as health-care personnel are made the objects of attacks.
Such direct attacks are prohibited by the principle of distinction, in particular the prohibition of making a health-care personnel or a person hors de combat by wound or sickness the object of attack. Attacks that might incidentally harm wounded and sick, health-care personnel are also unlawful if they do not respect the principles of proportionality and precautions. In the ICRC’s view, any assessment of the expected incidental harm under the rule of proportionality must take into account possible deaths or injuries among all the medical personnel, including military medical personnel, as well as combatants who are hors de combat. This stems from the central obligation to respect and protect these persons.
The phenomenon of “follow up attacks” – i.e. attacks that occur after a first one and that may intentionally or incidentally kill wounded persons as well as rescuers – also raises difficult challenges in law and in practice. When do these types of attacks constitute an IHL violation and when are they lawful? In the same vein, military entries into medical facilities can endanger the patients, which might be incidentally killed, and constitute illegal interferences with the medical mission. In some circumstances, however, the principle of military necessity requires such military entries and this is precisely the reason why they are not prohibited by IHL in all circumstances. How to make sure that medical facilities are not used to conceal weapons for instance and at the same time ensure that military entries do not endanger the medical mission? How can the obligation to respect the wounded and sick and medical personnel be appropriately implemented when performing military entries? In this case, the issue boils down to appropriate implementation of the law. In other cases, the law does not provide crystal-clear answers. For instance, medical and religious personnel lose their special protection when they perform “acts harmful to the enemy”. Are these terms synonymous to direct participation in hostilities or do they have a different meaning and implications? These are some of the questions we will be addressing in this session.
The third session will be dedicated to sexual violence; a phenomenon which is unfortunately prevalent in armed conflicts and whose consequences are vastly underestimated. In its experience on the ground, the ICRC sees the grave and dehumanizing effects of sexual violence on victims, their families and entire communities. Sexual violence can take many forms, including rape, sexual slavery, forced prostitution, forced pregnancy, and forced sterilization. Sexual violence can be used as a form of reprisal, to create fear, or as a form of torture. It may also be used systematically, as an unlawful method of warfare, aimed at destroying the social fabric.
Sexual violence is perpetrated against men, women, boys and girls. Women and girls seem nevertheless to face a heightened risk of sexual violence. This is particularly so when they are internally displaced, migrants, widows, heads of households, detainees, associated with armed forces or armed groups, or from a specific ethnicity.
The fact that sexual violence is unacceptable and must be prohibited and sanctioned is not new. Already the Lieber Code provided in 1863 that “all rape (…) of inhabitants [of the invaded country] are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense”. Nowadays, there is no doubt that rape and other forms of sexual violence are absolutely prohibited under human rights law at all times and under international humanitarian law in both international and non-international armed conflict. It is also clearly established that all rape as well as other forms of sexual violence that amount to serious violations of international humanitarian law entail individual criminal responsibility and must be prosecuted. All States are thus obliged to criminalize these violations under domestic law, and to effectively investigate and prosecute any instance of sexual violence. The continuing prevalence of sexual violence in armed conflicts indicates, however, that its prohibition and criminalization is not sufficient to eradicate this awful crime. Further efforts must be made to prevent, halt and prosecute rape and other forms of sexual violence. In this context, the ICRC follows with interest the UK initiative aiming at preventing sexual violence and facilitating the prosecution of perpetrators at the domestic and international level.
The consequences of sexual violence must also be addressed. Sexual violence can indeed result in severe physical and psychological trauma, HIV infection and, occasionally, death. Victims often face double victimization: sustaining potentially dangerous and long-lasting injuries and trauma, and also facing stigmatization and rejection by their families and communities. In addition to this, women and girls sometimes become pregnant as a result of rape. They may desperately seek out unsafe practices to terminate their pregnancy, which can put their lives or health at risk. This can be due to legal reasons: because abortion is prohibited in the country in which they live or at least not authorised in case of rape. This might also be the case for purely practical reasons: because access to health care is not available or disrupted because of the situation of violence. Children born of rape, and their mothers, often children themselves, are also highly vulnerable, facing an increased risk of exclusion from the community and from access to necessary services. Infants born of rape in armed conflict may be particularly vulnerable to infanticide, and other forms of violence inflicted upon them by their parents, families and communities.
The difficult humanitarian situation faced by women and girls impregnated by rape has led some to try to find a solution into international law by establishing a “right to abortion” under either IHL or human rights law. This alleged “right to abortion” has led to heated debates in the international community as it involves not only a dynamic interpretation of the law but also ethical, cultural and religious questions that are as fundamental as: When does life begin? Does the physical integrity and self-determination of the mother prevail over the life of the foetus? Isn’t it the prerogative of each State to define appropriate laws and policies in this domain? As a neutral, independent, impartial and purely humanitarian organization – and without pretending to provide an answer to these difficult questions – the ICRC is committed to work in favour of victims of sexual violence and women and girls impregnated by rape; to highlight their difficult humanitarian situation and the dilemmas they may face – despite the fact that as of today there is no such “right to abortion” in IHL – and to recall that all victims of sexual violence must have unimpeded access to timely and appropriate health care of a high quality, including comprehensive medical care within 72 hours, mental health services, and psychosocial support in both the acute phase and over the long term.
Over the next four years, the ICRC will endeavour to enhance its response to sexual violence in armed conflict and other situations of violence. We are also determined to expand our programmes to meet the needs of victims of sexual violence and to strengthen our action to prevent such violations.
See also :
The fourth session will address the issue of recruitment and other association of children with armed forces or armed groups. Boys and girls unlawfully recruited, used in hostilities or otherwise associated with armed forces or armed groups are especially vulnerable: they are often imprisoned, wounded or killed. They are also often separated from their families and denied access to education and other essential services, including health care and psychosocial support. Unlawfully recruiting, using or otherwise associating children with armed forces or armed groups has a serious, long-lasting and complex impact on the children, their families and their communities; it must be prevented.
As for sexual violence, most suffering endured by children during armed conflict could be prevented or alleviated if there was greater respect for existing international law. In the event of armed conflict – whether international or non-international – children who are not members of States' armed forces or organized non-State armed groups are entitled to the general protections afforded to civilians against the effects of hostilities, unless and for such time as they directly participate in hostilities. Children affected by armed conflict are, moreover, entitled to special respect and protection. Some instruments of international humanitarian law and human rights law address the question of the minimum age of involvement in hostilities. The International Red Cross and Red Crescent Movement promotes the principle that persons under 18 years of age should not participate in hostilities or be recruited into armed forces or armed groups.
The adoption in 2007 of the “Paris Commitments” and of the “Paris Principles” attest to the sustained commitment of the international community to prevent and respond to the phenomenon of children associated with armed forces or armed groups and to ensure the implementation of the prohibition of recruitment and use of children in hostilities. On the basis of its legal work and its activities in armed conflict situations, the ICRC has concluded that, indeed, in the absence of practical implementation measures at the domestic level, accepted rights and obligations are often no more than a dead letter. With this in mind, the ICRC recently developed two very practical tools: (1) a series of Guiding Principles for the Domestic Implementation of a Comprehensive System of Protection for Children Associated with Armed Forces or Armed Groups, and (2) a set of Model legislative provisions to be used by States as guidance in drafting legislation that prohibits the recruitment or use of children in armed conflict.
Unlawful recruitment or use of children in hostilities must be prosecuted. Perpetrators, regardless of their position in the chain of command, must be held accountable for acts committed by children during their association with armed forces or armed groups. The first-ever verdict of the International Criminal Court on 14 March 2012 in the case of Thomas Lubanga Dyilo, leader of the rebel group Congolese Patriotic Union, who was found guilty of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities, is a positive step in this direction. In this case, the ICC adopted a broad definition of what is active participation in hostilities for the purpose of article 8 (paragraph 2, (e)(vii)) of the Rome Statute. The ICRC wishes to highlight, however, that the significance of “active participation in hostilities” under IHL shall not be diluted: active and direct participation in hostilities are synonymous under IHL. Their definition shall not be construed too broadly because when civilians (including children) are directly participating in hostilities, they become legitimate targets under IHL and may lawfully be made the objects of attacks. This being said, the ICRC is convinced that the prosecution of perpetrators of these crimes committed against children is an integral part of efforts to prevent them from occurring.
The last session will be devoted to a panel discussion on the theme of humanitarian assistance, and more particularly the issue of “cross-border” humanitarian aid.
To be sure, humanitarian assistance is meant for the civilian population at large in armed conflict situations – and not only for the most vulnerable. However, the link between humanitarian assistance and vulnerabilities in armed conflicts remains: those who are the most in need of humanitarian assistance are precisely the most vulnerable. Under IHL, the parties to the conflict have an obligation to allow and facilitate rapid and unimpeded passage of impartial humanitarian relief for civilians in need which is impartial in character and conducted without any adverse distinction. This is subject to their right of control. In addition, Parties to the conflict, be it an international armed conflict or a non-international armed conflict, must respect and protect humanitarian relief personnel and objects as well as ensure the freedom of movement of authorized humanitarian relief personnel. Their movements can be temporarily restricted only in case of imperative military necessity.
The issue of cross-border humanitarian aid has also been selected because it has been the object of increased interest in the international community – and a subject of concern for the ICRC – given notably the present situation in Syria as well as in Libya in 2011. These conflicts have brought to the forefront a particular aspect of the constraints on humanitarian assistance which is the question of access to civilian populations in zones controlled by armed opposition groups. There have been difficulties for many organisations to obtain the necessary authorisations by the government to reach these areas. Humanitarian organizations have not all reacted in the same way to this challenge. Some have decided to carry out clandestine operations in opposition-held areas, by passing through neighbouring states, with or without the consent of the Governments concerned. Others – like the ICRC – are of the view that the consent from all sides must be sought although it shall not be refused arbitrarily.
States have been similarly divided on the question whether cross-border humanitarian aid can be performed without the Government’s consent in zones that are under the control of the organized non-State armed group, despite the fact that IHL – at least in Additional Protocol II – explicitly requires such a consent to be able to provide humanitarian assistance to civilian populations in need.
This situation has thus triggered a debate on the policy and legal framework concerning so-called cross-border operations. It will be fascinating to hear the different views of the panellists and audience on this topical issue.
Ladies and Gentlemen,In conclusion, one can say that IHL is definitely an important tool to protect the most vulnerable in armed conflict situations. Sometimes, IHL would need to be further strengthened or clarified in order to ensure an adequate protection to the most vulnerable in armed conflict situations. On most occasions, however, the problems do not lie in the law – which is already fairly comprehensive – but rather in the lack of respect for the law. I look forward to hearing your discussions on these different challenges, which constitute without any doubt the right ingredients for having a lively and interesting debate.