ICRC and Human Rights Council: complementary activities, respect for differences
Statement by Mr Peter Maurer, president of the ICRC, twenty-second session of the Human Rights Council, high-level segment, Geneva, 26 February 2013.
Mr Chairman, the High Commissioner for Human Rights, Your Excellencies, the representatives of States, international organizations and the civil society,
The International Committee of the Red Cross is pleased to be taking part for the first time in the high-level segment at the twenty-second session of the Human Rights Council. On a personal note, I cannot deny how moving I find it to be here today. I was actually in New York seven years ago, when the General Assembly adopted the resolution establishing the Human Rights Council. At the time, I had made a personal commitment – in another capacity – to ensuring that the transition went smoothly and that the Council was given the necessary tools to strengthen the UN system of human rights and to make a practical, effective and well-focused contribution in that area. The Council has already carried out a considerable amount of work during its short lifespan. That is naturally something that we can be proud of, but we also need to bear in mind what still has to be done. The substantial change proposed by the Human Rights Council is not an isolated incident; it forms part of a process that needs to be allowed sufficient time for it to be put into effect.
I am utterly convinced that it is in everyone’s interest to (...) reaffirm our common commitment to humanity, thus showing a profound respect for, and recognition of, our respective responsibilities and roles, which are different but complementary."
Today, I am addressing this assembly as the President of the ICRC. Although my position and the mandate of the institution that I represent are now completely different, I am still driven by the same values as in 2006. I am utterly convinced that it is in everyone’s interest to play a constructive part in this process and, in doing so, to reaffirm our common commitment to humanity, thus showing a profound respect for, and recognition of, our respective responsibilities and roles, which are different but complementary. In that process, the ICRC will be guided systematically by the sine qua non condition of preserving the trust of the parties involved in armed conflicts, that trust being a vital part of maintaining effective access to the victims whom we wish to assist and protect.
At the World Conference of the United Nations on Human Rights – which took place twenty years ago – one of my predecessors, President Sommaruga, voiced his regret over the fact that history with its succession of wars, massacres, torture and rape was not merely something belonging to the past; it was taking place before our very eyes and was repeating itself. He could have taken those words right out of my mouth. In my recent visits to the field, I have been struck by the unacceptably high toll on human lives taken by the various situations of violence in which we are working worldwide.
I would add that those acts of extreme violence not only lead to material destruction but also have individual and collective repercussions that are so far-reaching that they affect and destroy the very foundations of the social fabric that plays such a vital part in stabilizing, rebuilding and developing communities and the lives of individuals concerned. Twenty years ago, the ICRC’s proposal to all those working in the field of human rights who were assembled in Vienna was that we should work together on the hard core human rights considered by legal experts to be non-derogable as they apply in all circumstances.
Today, I would like to go a little further. There is no doubt that, as far as human rights are concerned, armed conflicts sadly perpetuate the most serious kind of atrocities. Mechanisms and procedures intended to defend and promote human rights – among which the Human Rights Council has pride of place – have developed and look at situations that are also of concern to the ICRC or address subject areas that are likewise of concern to it. This is no longer the era of the “third combatant,” when we were perceived as holding a virtual monopoly of the defence of humanity by virtue of the enforcement of international humanitarian law (IHL). I am acutely aware of how complex the environment in which the ICRC works has become. I am convinced that the desire to work more effectively on behalf of the victims compels us to increase our understanding of, and to cohabit with, the sphere of politics, social affairs and development, the causes and consequences of conflicts, peace-keeping, and efforts to achieve justice and to restore the rule of law.
... we must try to find the most appropriate means of cooperating fully with each other, while acknowledging the complementarity of our distinct missions and our differences and turning them to advantage."
Nearly one-third of the resolutions adopted by the Human Rights Council in March 2012 refer to IHL, in connection with particular situations or specific topics as important as children or the process of transitional justice enabling, amongst others, the right to know that is so dear to IHL. For the good of the victims and if we are to be better equipped to respond to their needs, we can no longer settle for systems that work in isolation. Rather, we must try to find the most appropriate means of cooperating fully with each other, while acknowledging the complementarity of our distinct missions and our differences and turning them to advantage. That is why I am here. Is it not preferable to work together to better prevent and alleviate more effectively the suffering of the victims and to preserve together that common fund of humanity? The ICRC attaches considerable importance to that approach, the protection of fundamental rights inevitably proceeding through a series of converging strategies which, far from being mutually exclusive, must provide mutual reinforcement.
The complementary nature of our respective missions can be expressed in different ways. To start with, it would seem appropriate to me for us to make better use of our points of convergence. Some of them are obvious. For example, the seats of the Council of Human Rights and of the ICRC are both in Geneva, a humanitarian hub which presents opportunities to establish an infinite combination of links between States, the United Nations, international organizations, NGOs and other experts that it would be wrong to overlook. It seems to me inevitable, and indeed necessary, that the association between the Human Rights Council and those different protagonists, including the ICRC, should grow, allowing the Council to work in detail on, and in advance of, what is then achieved in New York.
Furthermore, although the mandates of the Human Rights Council and the ICRC are founded on separate branches of international law - human rights and IHL - those two branches are governed by the principle according to which each individual has the right to be protected against abuse, persecution and arbitrariness. The obligation to be treated with humanity is common to both branches of law. It thus seems obvious to me that, in many sets of circumstances, we could work together to reinforce the rule of law and hence ensure that no one is deprived of protection. We will then show that we are all pulling together and that we are taking major practical measures in recognition of the value of the human personality and human dignity.
Let us take the example of health care. During my missions to conflict zones, I have been very saddened to note that a fair number of women, men and children who could have been saved were dying every day because they had no access to medical care. Whether as acts or threats, violence perpetrated against medical personnel, medical structures and patients is one of the greatest humanitarian challenges facing the world today. Yet it often goes unnoticed. An ICRC study based on data collected in 16 countries from mid-2008 until the end of 2010 highlights the forms of violence that hinder the provision of medical care, regardless of whether they are direct attacks on the patients, medical personnel and medical structures – particularly pillaging and kidnapping – or cases of arrest and the refusal to grant access to medical care. In 2012, ICRC data showed that the vast majority of violent incidents – more than 80% of some 900 incidents recorded in 22 countries – affect local health workers. In some cases, secondary attacks have been observed that have specifically targeted the very people who were trying to help the victims of a first attack. That practice is particularly repugnant as it increases the number of wounded and dead and deprives of care those who urgently need it.
All too frequently, medical personnel cannot reach their workplace because of fighting, relief workers are held up pointlessly at checkpoints, soldiers force their way into a hospital in search of enemies or to protect themselves against an attack, and ambulances are targeted or used unlawfully to carry out attacks. Incidents like that also have major indirect consequences: medical workers give up their work, hospitals close down and vaccination campaigns are interrupted. Such disruptions to medical services are less visible and more difficult to measure than attacks against medical personnel and structures. Nonetheless, they are just as fatal for the wounded and sick. Regardless of the context, the lack of security in many parts of the world results in the wounded and sick not being given the medical care that is their due.
... acts that hinder the provision of medical care contravene the rules and fundamental principles of IHL when they are carried out in situations of armed conflict. However, do they not also fly in the face of human rights that are as fundamental as the right to life and the right not to be deprived arbitrarily of life (...)?"
Obviously, acts that hinder the provision of medical care contravene the rules and fundamental principles of IHL when they are carried out in situations of armed conflict. However, do they not also fly in the face of human rights that are as fundamental as the right to life and the right not to be deprived arbitrarily of life or the right to be protected against cruel, inhuman or degrading treatment? Do I need to recall the fact that the right to health, including access to health care without discrimination, is firmly anchored in several international law and human rights instruments? At the end of last year, the General Assembly recognized the extent of the problem in its resolution on strengthening the coordination of humanitarian assistance. It actually introduced a paragraph in which it condemned “the increasing number of deliberate threats and violent attacks against humanitarian personnel and facilities, including medical personnel and facilities.1” In his report submitted to the Security Council on the protection of civilians in May 2012, the Secretary-General also made numerous references to the attacks on medical services and asked the Security Council to be more proactive in that matter.
Ladies and Gentlemen members of the Council,
Today I appeal to you as State representatives, since it is the States that have primary responsibility for protecting medical personnel and facilities in the territories under their jurisdiction. I urge you to actively support the efforts being made to impede any kinds of threat or attack against medical personnel or facilities, to put an end to such attacks and, where appropriate, to repress them. Would it not be appropriate for the Council and its Member States to use the Universal Periodic Review or other available tools to exert a positive influence in that regard, in line with their obligations to respect and ensure respect for IHL, as provided for in Article 1 common to the four Geneva Conventions?
The complementarity of IHL and human rights also requires us to recognize all the differences. Is it not wise to stress from the outset that IHL is based on a realistic behavioural approach that, to be applied, must propose a fair balance between protection and security, whereas human right stem from a broader, even philosophical, aspiration, to protect and defend what characterizes human beings as such? From a more technical perspective, IHL and human rights also differ in certain respects, particularly in the case of the indisputable extraterritorial application of IHL, its direct application to non-State armed groups and even their respective control and supervision mechanisms. Moreover, some – including the ICRC – suggest that the positive interplay between IHL and human rights is not sufficient to ensure adequate protection for some vulnerable persons, in particular those who are deprived of their freedom in non-international armed conflicts. In fact, that matter is the subject of substantial legal debate, notably on what needs to be done in order to move forward. A question that continues to be raised is whether it might be necessary to strengthen IHL in order to enhance the rules governing detention, in particular those concerning procedural guarantees applicable to internment during non-international armed conflicts. It was with a view to establishing a response to this question that the ICRC was invited by the 31st International Conference of the Red Cross and Red Crescent in November 2011 to continue its research, consultation and discussion in cooperation with the States and other key actors2. I look forward to future contributions on this subject from the States and from any parties interested in strengthening the legal protection of the victims of armed conflicts.
I will not dwell on the obvious differences between the missions of the Human Rights Council and the ICRC, even if we need to bear in mind that those differences will guide the modes of interaction that can be set up between the two institutions. The 150th anniversary of the ICRC is an opportune moment to reflect not only on the changes affecting the global political environment in which our respective activities are conducted and the ways of adapting to those changes, but also on what must remain unchangeable. For example, Henry Dunant’s vision of humane treatment being given to any wounded or captured soldier without discrimination, which has subsequently been extended to include protecting and assisting any person affected by armed conflict on the basis of their needs, still applies – even more today than 150 years ago – and remains the cornerstone of contemporary humanitarian action.
The desire to alleviate suffering among affected people and communities is at the heart of our concerns and guides what we do in the field."
The aim of ICRC’s work and activities is to provide, without any form of discrimination, essential and immediate assistance and protection for vulnerable people. We are convinced that to be able to do this we must adhere strictly to the fundamental principles of humanity, impartiality, neutrality and independence. This is what characterises us, but it does not lessen the value of work done by others who may be operating on the basis of different principles. From a practical perspective, to carry out our mission we must have the consent of the parties involved. That is the reason why our humanitarian action must be fully independent in its respect for State sovereignty, while refusing to become involved in the political or military aspects that are inevitably part of the various situations of violence in which we work. It might surprise you to know that the ICRC views its humanitarian action as being set apart from initiatives connected with peace, security, development, human rights or even criminal liability. Obviously, it may contribute to them but they will never be among our primary objectives. The desire to alleviate suffering among affected people and communities is at the heart of our concerns and guides what we do in the field.
For the ICRC, adherence to the fundamental principles of humanitarian action takes shape in the field in the confidential bilateral dialogue on specific humanitarian concerns, the aim of which is to persuade authorities to take specific measures rather than to denounce their shortcomings. That confidential approach has been part of the ICRC’s identity for decades and there is nothing to indicate that it will need to change in future. Quite the opposite. We are convinced that it is effective in ensuring that the ICRC is granted access to victims by the authorities that are exercising control over them or determining access to them. We cannot allow ourselves to lose this closeness to those affected. It is extremely useful to the ICRC since it allows us to gain a deeper knowledge of the problems faced by those people and to suggest specifically adapted forms of humanitarian action that take account of hard facts. That approach also plays a part in reinforcing the security conditions for ICRC staff operating in the field and whose task it is to gather the facts that are necessary for our action to be credible. Therefore, I ask the Council and its Member States to fully comprehend the importance attached to maintaining our confidentiality – it is in the interests of the victims to keep the dialogue with authorities confidential and to gauge the work of the ICRC solely on the basis of its intrinsic humanity.
clear forms of cooperation with the Human Rights Council are desirable and can generate mutual benefits."
As it is based on confidentiality, the ICRC's preferred method of operating inevitably influences the forms of interaction that could be established with the Human Rights Council, whose modus operandi is based, rather, on public communication and advocacy. Having said that, I remain convinced that clear forms of cooperation with the Human Rights Council are desirable and can generate mutual benefits. We should not underestimate the significant value that the Council represents for the ICRC as a multilateral forum or of its work with the States that comprise it. Furthermore, the Council can appreciate the deep historical significance of the ICRC – a consequence of its many years of existence and activity, coupled with the in-depth knowledge of the situations that it has gained by actually maintaining a field presence, including through the National Red Cross and Red Crescent Societies. The interactions will nevertheless depend on their temporal nature; in other words, they will vary depending on the moment at which they are proposed in relation to the likelihood of a specific situation of violence. In practical terms, I would like to see the ICRC participating in initiatives that are designed to prevent serious violations of IHL. Of course, it should be prepared to participate in debates and to support measures taken by the Council and its organs in the field of prevention, while paying special attention to the topics inherent in its mandate. By contrast, I must emphasize that the more likely the occurrence of an armed conflict or of other situation of violence, the more attention will need to be paid to maintaining access to the victims, which could limit the number and nature of possible interactions. The same is true of steps that might be taken to punish those who are guilty of international crimes. However appropriate steps designed to stop impunity in the case of heinous crimes may be, the international community has to a large extent recognized that the confidential approach is a necessary tool for the ICRC, enabling it to fulfil the mandate which has been entrusted to it. It is also generally accepted that the ICRC does not participate in judicial or quasi-judicial procedures and does not supply information that it has been given confidentially.
I am delighted to be able to participate regularly in high-level segments in Council sessions in order to keep it and its members abreast of the latest developments and important humanitarian challenges that the ICRC is facing and that could be of interest to the Council. With this in mind, I would be particularly pleased to invite the heads of delegations to call in whenever they pass through Geneva. Moreover, I am committed to ensuring that the ICRC is proactive in the assumption of its role and its observer status within the Council. This is clearly demonstrated through the maintenance of our presence at the regular and special sessions of the Council, in particular with a view to identifying possible bases for dialogue and to continually fuel our reciprocal exchanges. Against this background, the ICRC will follow the Universal Periodic Review with great interest. It also seems clear to me that we can all benefit from high-level meetings and thematic working meetings between the Council’s Bureau and the ICRC and I am committed to being personally involved in that. I would also like my teams to be able to maintain their excellent relations with the special procedures of the Council and I hope that we will be able to initiate dialogue on new topics of current relevance and particular interest for the ICRC. Finally, it seems absolutely certain to me that if these different exchanges are to be given real meaning, close technical collaboration must be pursued with the Office of the High Commissioner, whose competence we greatly appreciate.
I would like to thank you for listening and wish you success as you continue the work of the twenty-second session of the Human Rights Council.
1. Official Document AGNU RES/A/67/L.39 (12 December 2012).
2.31st International Conference 2011: Resolution 1 “Strengthening legal protection for victims of armed conflicts,” resolution adopted by the 31st International Conference of the Red Cross and Red Crescent, held in Geneva, Switzerland, from 28 November to 1 December 2011. That resolution also invited the ICRC to pursue its research, consultation and discussion “to identify and propose a range of options and its recommendations to […] ii)enhance and ensure the effectiveness of mechanisms of compliance with international humanitarian law […].