Preparation of international humanitarian law topics for the 31st International Conference
Remarks by Knut Dörmann, head of the legal division at the ICRC, informal meeting of legal advisers, United Nations, New York, 24 October 2011
It’s a great honour to be invited to speak before you again this year. Many thanks to the group of states led by Sweden in organising this venerable gathering.
As you know, the International Conference of the Red Cross and Red Crescent will take place this year, 28 November – 1st December in Geneva. Today I’d like to share with you highlights of preparations for the Conference topics related to international humanitarian law (IHL). These are:
- ICRC’s ongoing project on Strengthening Legal Protection for Victims of Armed Conflict
- ICRC Challenges Report
- Four Year Action Plan for the implementation of IHL, and
- Health Care in Danger, a new ICRC project launched in 2011.
An encouraging number of States have contributed in the preparatory phase and helped us to prepare draft resolutions for the International Conference. Further input from States is needed, which I will specify through my remarks today.
This major initiative is the centrepiece of the agenda of the International Conference, with a debate in plenary and the adoption of a resolution to give direction for reflection and work in years to come. Allow me to give you some background in particular for those who haven’t followed this initiative closely.
As most of you know, the ICRC conducted a major in-depth internal study on strengthening legal protection for victims of armed conflicts. In September last year, the ICRC President shared our conclusions with States through your Permanent Missions in Geneva. In a nutshell, the study concluded that IHL remains, on the whole, an appropriate framework for regulating the conduct of parties to armed conflicts. To improve the situation of persons affected by armed conflict, what is required in most cases is greater compliance with the existing legal framework.
But the ICRC study also concluded that ensuring better protection for these persons involves strengthening the law in four specific areas, namely: (i) protection for persons deprived of liberty in non-international armed conflicts; (ii) international mechanisms for monitoring compliance with IHL and reparations for victims of violations; iii) protection of the natural
environment; and (iv) protection of internally displaced persons.
Following the President’s statement, the ICRC consulted States on the conclusions of its study. These consultations suggested that further work should focus on two topics – instead of the initial four - namely protection for persons deprived of their liberty in non-international armed conflicts, and international mechanisms for monitoring compliance with IHL. These two attracted the most interest from States.
On the first - legal protection of persons deprived of their liberty - States consulted generally recognized the need to ensure better legal protection, in particular for persons detained for security reasons during non-international armed conflicts. Clear legal guidance is needed to prevent arbitrary detention. Some States insisted that risks which detainees face when transferred from one authority to another should be addressed. Others expressed interest in conditions of detention - especially in specific protection needs of certain categories of persons, such as women, children, the elderly and disabled.
On the second topic - compliance with IHL - States consulted generally recognized that most of the mechanisms provided under the 1949 Geneva Conventions and Additional Protocol I have proven insufficient so far. Existing procedures for supervision of parties to armed conflicts have rarely been used in practice. Further, many States agreed that mechanisms developed outside the ambit of IHL (e.g., human rights bodies) also have limits and were not developed for implementing this body of law. They concurred that discussion on improving compliance with IHL is a priority.
This discussion with States on strengthening legal protection will be continued during the 31st International Conference. We have issued a report with the main conclusions of the study and consultations with States. This report will be discussed in plenary, allowing all interested participants - including those that did not take part in the initial consultation - to express their views. To guide debate, participants will receive advance questions. Among others, they will be asked to identify areas that require further work in order to improve the protection of persons deprived of liberty in the context of armed conflict and to improve compliance with IHL. Participants will be invited to express their views on ways to take the dialogue forward. A draft resolution on strengthening legal protection for victims of armed conflicts will be submitted to the Conference. Since July, the ICRC has been consulting States on the draft resolution. This inclusive consultation process aimed at allowing all States to express their views before the Conference. States from all regions participated. We received detailed and substantive comments that indicate genuine interest from States. We are very grateful to all who contributed. Based on this feedback, the ICRC sent an official draft resolution to all participants in mid-October – also available on the Conference website.
I want to briefly now highlight some key elements of the draft resolution – copies have been distributed today.
The first paragraph focuses on the enormous suffering caused by armed conflicts today. This is the very reason why we believe that such a resolution is necessary.
The resolution reiterates that IHL remains as relevant today as ever in international and noninternational armed conflicts and continues to provide protection for all victims of armed conflict. In other words, the resolution does not question the protective framework of existing law.
However, the resolution recognizes that constant attention must be paid to military and humanitarian concerns arising from armed conflict to ensure that IHL remains relevant in providing legal protection to all victims. The operative paragraphs give concrete meaning to this idea. The resolution seeks notably to ensure that future work continues in the two priority areas.
I would underline that the draft resolution does not prejudge any outcome for future work on strengthening IHL. The consultation process showed that there are diverging views on how to address humanitarian concerns in legal terms. In particular, a number of States questioned whether new treaty rules might be the most appropriate solution. Therefore, the draft resolution clearly expresses that the outcome of efforts to strengthen IHL must remain open at this stage. It provides that strengthening IHL entails different options, such as reaffirmation, clarification or development of the law. The best options for the two priority areas must be decided at a later stage, based on discussions on substantive issues.
The draft resolution also makes clear that States have the primary role in the development of IHL. It recalls the specific role of the ICRC, as recognized by the Statutes of the International Red Cross and Red Crescent Movement. In substance, when it comes to the development of IHL, the ICRC may make proposals, but States ultimately decide.
To conclude this part, I would like to encourage you to engage in the debate on strengthening legal protection and to support the draft resolution at the International Conference. Real and long-term changes can only be achieved if States are committed to them. In the weeks before the Conference, we would appreciate receiving further comments from States – including those that have not expressed their views so far.
Secondly, the ICRC will present to the 31st Conference its third Report on "IHL and the Challenges of Contemporary Armed Conflicts". Like past editions, this third "Challenges Report" is not submitted to the Conference for amendment or approval. It is a stand-alone ICRC product. We hope that the report will contribute in years to come to generating indepth discussion on these challenges and the best way to address them.
Most topics addressed in the third Challenges Report were not dealt with in past editions. They were selected because they are of increased interest to States, other stakeholders, and the ICRC. These topics are: the notion and typology of armed conflicts; the interplay between international humanitarian and human rights law; humanitarian access and assistance; IHL and multinational forces; new technologies of warfare; the use of explosive weapons in densely populated areas; the Arms Trade Treaty; and the conflation of IHL and the legal framework governing terrorism.
The Challenges Report also includes topics the ICRC has researched and worked on since the last Conference, through informal expert meetings or in collaboration with governments. The Report thus outlines results of its expert project on the law of occupation. It briefly describes the process aimed at clarifying the notion of direct participation in hostilities under IHL, including reactions it received following publication. It likewise highlights the joint Swissgovernment/ICRC led process that produced the Montreux Document on private military and security companies, and related initiatives.
The format and length of the International Conference do not permit a discussion of all these topics. The ICRC thus decided to focus on one - "humanitarian access and assistance" – for debate in the IHL Commission. Our sense is that the humanitarian and legal challenges related to this topic are of interest to all Conference participants.
The IHL Commission will open with panel presentations. Debate will be facilitated through guiding questions circulated in advance. These questions will invite participants to share their experience and views on the most appropriate ways to provide rapid and appropriate response to populations in need of humanitarian assistance. The debate will put emphasis on the relevant rules of IHL. Participants will be asked how to ensure better understanding and knowledge of this legal framework and better compliance with relevant rules by all parties to armed conflicts.
The debate is not intended to address these issues in a conclusive way. The outcome will besummarized by a Rapporteur and included in the Conference proceedings.
The Action Plan submitted for adoption by the International Conference pursues the goal of improving protection of victims of armed conflicts through better implementation of existing IHL. The Action Plan is structured around objectives and specific action points. The adopting resolution would invite States and components of the Movement to contribute to implementation of these action points.
The objectives in the Action Plan are: 1) to enhance access by civilian populations to humanitarian assistance in armed conflicts; 2) to enhance protection accorded to specific categories of persons in armed conflict - in particular children, women, and persons with disabilities; 3) to enhance protection of journalists in armed conflict; 4) to improve incorporation and repression of serious IHL violations; and 5) to strengthen controls on arms transfers.
The action points include measures designed to prevent IHL violations (like dissemination, training and ratification of treaties), measures of protection and assistance to victims of armed conflicts during hostilities, and measures addressing direct consequences of violations. These reflect States' obligations to respect and ensure respect for IHL.
A first draft Action Plan and resolution were sent to participants for comment in August. Feedback from States and National Red Cross and Red Crescent Societies indicates general agreement with the draft resolution.
While some participants suggested further objectives in the Action Plan, others cautioned that objectives should remain achievable. We thus took great care in drafting a realistic Action Plan. In addition, the draft Resolution indicates that the Action Plan should be implemented by participants in accordance with their respective powers, mandates and capacities. It was decided to maintain the objectives in the draft Action Plan, and not to add further objectives, for example on the protection of elderly or IDPs as suggested by some States.
Based on feedback received from States, to avoid duplication, a new paragraph indicates that work ongoing in other international fora and by other humanitarian actors in relation to some objectives and action points should be taken into account.
The ICRC included, to the extent possible, other comments received in a new draft Action Plan sent this month in the official mailing of conference documents. We posted on the conference website Model Pledges relating to specific action points. The ICRC welcomes further comment on the draft Action Plan and encourages pledges from States on the implementation of objectives and action points in the Plan.
Finally, allow me to say a few words on a key ICRC project with important legal underpinnings, Health Care in Danger.
Insecurity of health care in armed conflicts and other situations of violence is widespread and affects large populations but has not been systematically documented and analyzed. From 2008 to 2010, the ICRC conducted a study across 16 operational contexts. This revealed patterns of insecurity that include direct attacks on patients, health infrastructures and personnel; denial of access to care; and general insecurity, arrests, looting and kidnapping. These patterns indicate high levels of vulnerability both for the wounded and sick and for health staff.
Insecurity of health care is likely one of the biggest humanitarian problems today in terms of numbers of people affected. Yet it is largely under-recognised. The ICRC has decided to address this challenge. It will mobilize its network of delegations, the Red Cross and Red Crescent Movement, States party to the Geneva Conventions, the health community and other actors to identify solutions and commit to their concrete implementation. The project will not develop new laws, but find ways to better implement existing norms and procedures to strengthen protection of the medical mission and the wounded and sick in contexts where we work. In recent months, the ICRC sent draft resolutions to States and National Societies and integrated most of their comments.
At the International Conference, the ICRC will launch a four-year process aimed at improving safe access to effective and impartial health care. Later, a series of expert consultations and workshops involving key stakeholders will be held. In 2014, an ad-hoc intergovernmental conference will review the conclusions and recommendations of the workshops and seek formal support from States. The results of all this work will be presented at the 32nd International Conference in 2015.
I will conclude here, thanking you for your time and interest. I look forward to further exchange with you this week and in the final weeks before the International Conference.