Establishing a dedicated IHL compliance system
Opening speech, Peter Maurer, President of the ICRC. Third Meeting of States on Strengthening Compliance with International Humanitarian Law, Geneva, 30 June - 1 July 2014.
Ladies and Gentlemen,
It is a great pleasure to welcome you to this Third Meeting of States on Strengthening Compliance with International Humanitarian Law and to offer a few opening remarks.
Where national implementation measures and mechanisms play a central role in structured states, the international community must develop additional and adapted tools to ensure compliance in operational environments characterized by fragile states, armed groups, spreading violence and the potential collapse of traditional law and order systems.
As has just been eloquently recalled by the President of the Swiss Confederation Didier Burkhalter, this year marks the 150th anniversary of the adoption of the first treaty of international humanitarian law, the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.
This first treaty launched an emblematic quest of states and society for regulating the use of military force in times of conflict, and mitigating the impact of hostilities on civilians and persons hors de combat. The protection of wounded and sick combatants, independently of the side to which they belong, the respect for medical personnel and facilities, and the creation of a protective emblem are symbols for this important development. Over the last century this quest has produced an impressive legal structure as well as strategies and methods to support the implementation of IHL. It situates International Humanitarian Law at the forefront of the efforts to protect and assist people affected by armed conflicts; it brings about a minimum of international attention where one could least expect it: in the most remote battlefields, detention facilities and in other similar situations.
The development of clear and well-articulated international mechanisms to strengthen respect for the rules of IHL and ensure the compliance of belligerents is a critical component of this enterprise, especially as armed conflicts are becoming more protracted and armed groups more fragmented. Where national implementation measures and mechanisms play a central role in structured states, the international community must develop additional and adapted tools to ensure compliance in operational environments characterized by fragile states, armed groups, spreading violence and the potential collapse of traditional law and order systems.
The impact of current conflicts on affected people is both tragic and sobering in terms of implementation of IHL. We continue to witness the execution of captured persons, of indiscriminate attacks affecting civilian populations, of hostage taking, of rape and other forms of sexual violence and of the killing of humanitarian workers. The sad list of atrocities goes on.
While compliance with IHL, as with any other body of norms, will always depend on a range of factors, some of which are not legal in nature, this body of norms serves as the primary guidance on how the parties to an armed conflict must behave. It is the product of generations of collective wisdom and of the experience of those who came before us in an effort to codify the necessary balance between considerations of military necessity and the imperative of humanity. It reflects the values of all states in the attempt to humanize the conduct of military operations. This is evidenced, among other things, by the universal ratification of the 1949 Geneva Conventions.
No law, and IHL is no exception in this regard, can exert a normative function without being supported by the larger community within which it operates. This is the purpose of the joint Swiss-ICRC consultation process in the course of which today’s Third Meeting of States is taking place.
Put simply, the process aims to create an institutional space in which IHL can be supported, on a continuous basis, and through which compliance with it may be strengthened by means of dialogue and exchanges among states. The time for such a space seems long overdue.
At last year’s Second Meeting of States we discussed the inadequacies of some of the current IHL compliance mechanisms. It was rightly pointed out that one of the reasons for the lack of use of these mechanisms is the lack of their attachment to or support by a broader IHL compliance framework and network. Last year we also reflected on the fact that the Geneva Conventions are an exception among international treaties in that they do not provide that states will meet on a regular basis to discuss issues of common concern and perform other functions related to treaty compliance. The absence of an institutional space for dialogue and exchanges on ways of improving compliance with IHL becomes even more extraordinary if we take into account the humanitarian consequences of the non-application of IHL, which we continue to witness today.
Because of the lack of an IHL-supportive space, other bodies of international law are carrying out aspects of the necessary dialogue, exchanges and actions among states aimed at improving compliance with IHL. The case to be made for an IHL specific compliance system appears self-evident considering the fact that IHL is a specific branch of international law, with principles, rules and a logic that would need and benefit from a more dedicated focus. An IHL-supportive system would also involve persons who are familiar with this body of norms, and who can, over time, foster the creation of a broader community of IHL experts and raise awareness of it among the public at large. As with other bodies of law, knowledge of IHL is a prerequisite to developing a sense of ownership and responsibility, with respect to its implementation.
Ladies and Gentlemen,
The consultation process being facilitated by Switzerland and the ICRC presents states with a unique opportunity to address some of the needs and fill in some of the gaps I have just outlined, through the establishment of a dedicated IHL compliance system.
A Meeting of States, I would hope annual, is being envisaged as the central pillar of the new IHL compliance system. It should, on the one hand, serve as a regular forum for dialogue among states on IHL issues, and, on the other, be an anchor for specific compliance functions and other elements of the system. While your discussions on its structure and features are still on going, it would be natural to anticipate that plenary sessions would constitute the principal body of the Meeting of States, as is the case in other international legal frameworks. It is clear that states would form the core membership of the Meeting of States, but other actors, including international and regional intergovernmental organizations, as well civil society organizations, should be able to take part in its work as observers.
In ICRC’s view it would be necessary to have other organs as well, such as a Chair, a Bureau, and a Secretariat. While the need for a “light footprint” - which many of you desire - must be observed, we should also keep in mind that the system should allow for a meaningful and sustained dialogue on IHL issues and ways of improving compliance with it.
A periodic reporting function would also appear to be an essential tool for improving compliance with IHL at the national level. Periodic reporting mechanisms provide opportunities for self-assessment by states in the process of the preparation of reports. Reporting further allows for the provision of information on measures taken at the national level, permitting states to engage with each other in order to achieve the common goal of enhancing IHL compliance, enabling exchanges on practical experiences in IHL implementation, sharing of best practices and identifying capacity-building needs.
Thematic discussions on IHL issues would be an important function of a new IHL compliance system. They could serve, among other things, to ensure that States are better informed about current or emerging IHL issues, enable a better mutual understanding of each other’s positions on such issues and offer the possibility of exchanges on key legal, practical and policy questions.
The ability to monitor implementation of commitments has become an important feature today in many compliance mechanisms. The proliferation of fact-finding missions mandated by multilateral organizations demonstrates the interest of States to gather and analyze information on current and past conflicts as a way to ensure compliance with international law. The added value of an IHL-specific fact-finding function is that it could be designed to ensure that the required IHL mandate exists, and that any possible enquiry is carried out by experts familiar with the law, practice and spirit of this branch of international law. This would facilitate the quality of the findings and that could, in turn, promote their credibility with those who are responsible for implementing IHL at the policy level, and on the ground.
I hope that these considerations might guide your further efforts to find a mutually acceptable way of including a non-politicized fact-finding function in a new IHL compliance system.
Ladies and Gentlemen,
In the discussions held to date, a clear convergence of views seems to have emerged that the establishment of the future system should not entail amendments to the 1949 Geneva Conventions, or the negotiation of a new treaty. The voluntary nature of the system underlines that a key challenge will be how to make it effective: states' participation and meaningful involvement will be critical to making a difference in compliance with IHL on the ground.
As far as the ICRC is concerned, we stand ready to provide the necessary technical support in setting up a new IHL compliance system, as well as to cooperate in its deployment. The ICRC is therefore committed to working with states, multilateral organizations, specialized agencies and all other entities to support greater compliance with the rules of IHL, in line with its core principles of independence, neutrality and impartiality, as well as its specific mandate enshrined in the Geneva Conventions. Evidently, the requirements of humanitarian access to people affected by armed conflict and other situations of violence may put some limitations on the modalities of the ICRC’s participation in the proposed reporting mechanism, particularly in terms of the confidentiality of ICRC observations and interactions with belligerents. Its operational involvement on the other hand may represent an important asset to such a mechanism. The ICRC supports the establishment of effective reporting and fact-finding mechanisms, as well as thematic discussions on IHL issues, which will be attached to regular periodic meetings and to finding modalities to ensure the best use of its experience within the system as a whole.
At the end of the day, effectiveness will be the main tool for measuring the success of our current endeavour. This consideration should infuse the crafting of the structure of the protection system and of its features, as well as the design and operation of the specific elements of which it will be composed. In the same vein, the ICRC is keen to ensure that the proposed IHL compliance mechanisms complement parallel compliance mechanisms established under other legal frameworks. Protection is at the core of ICRC mission and can only be achieved in concert with all relevant actors, from the belligerents to national authorities, from UN protection agencies to local and international NGOs. The ICRC is keen to work with all of these authorities and organizations in enhancing its protection strategies.
I am encouraged by the course of your discussions thus far, although I am of course aware that the consultations are on going and that challenges lie ahead. I call on you to approach these challenges in a spirit of trust and cooperation. I am pleased to note that, based on discussions thus far, the contours of a new IHL compliance system seem to be emerging. You have a unique opportunity to make a lasting difference to the lives of people affected by armed conflict. I urge you to seize it.