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Promotion of and respect for International Humanitarian Law

17-03-1999 Statement

Organization of American States (OAS), Committee on Juridical and Political Affairs of the Permanent Council, Special Session. Statement by Dr. Cornelio Sommaruga, President, International Committee of the Red Cross (ICRC). Washington, 17.03.1999.

Mr. Chairman,

Excellencies, distinguished representatives of the OAS member states

Distinguished officials of the OAS General Secretariat

Ladies and gentlemen

It is indeed a great pleasure to be with you today, for this " special session " of the “Committee on Juridical and Political Affairs” of the OAS Permanent Council, on the theme of the " promotion of and respect for international humanitarian law " .

May I first briefly recall the circumstances that have led to the holding of this session, which clearly illustrates the interest of this Assembly with respect to this topic.

Both the OAS and its member states have regularly demonstrated, over the years, their interest and concern for international humanitarian law (IHL), its respect, its promotion and its means of application. One of the signs of this interest has been the adoption by your General Assembly, as from 1994 on, of yearly resolutions on the topic of IHL. Furthermore, these resolutions have gradually incorporated mechanisms intended to monitor and assess the implementation of their dispositions, as well as to improve interstate cooperation through exchange of information.

My presence among you today responds to the convocation of the special session that was called for by the Caracas resolution of June 1998. Its main objective, as the ICRC sees it, is to allow the member states to debate on their respective experiences in the field of the so called " national measures of implementation of IHL " , particularly with respect to the " preventive measures " , that have to be taken, at all times, regardle ss of the specific situation prevailing in each individual country.

As for the role to be played by our organization, we do understand it in the context of the special expertise that we have developed in this particular field, over the years. So, while expressing our appreciation for your invitation to attend your session, we also reiterate our full and permanent readiness to provide whatever technical assistance and information may be required, through our specialized consultative unit in Geneva, and through our network of regional delegations in your continent.

The draft report that has been handed over to you, together with an explanatory verbal note, in prevision of this session, will be commented afterwards by our legal adviser, who will also tell you how we would like to propose that this document, once approved by the relevant instances, could be presented by the Permanent Council to the General Assembly, as part of its reporting duty regarding the implementation of the resolution on IHL. 

I would now like to reflect on some aspects related to the application of IHL on your continent, and start with mentions to a few historical antecedents, that show the precursor role of some eminent Americans in the development of humanitarian thought, practice and codification.

Going as far as the pre-Columbian civilizations, we can find local values, patterns of conduct and even legal norms aimed at limiting the scope of violence in warlike situations. Regarding the Maya period, for instance, the ICRC has entrusted an in depth investigation in order to explore these ancient customs and rules so as to be able to use them as a “cross-cultural reference” in its IHL dissemination programs in Guatemala.

As for the Andean region, we may recall the treaties that were signed between the " Libertador " Simón Bolivar and the Spanish " Pacificador " , Gener al Morillo, in 1820. These accords on " suspension of hostilities " and on the " regularization of war " fixed clear patterns of conduct deemed “... to save as much blood as possible ...”, and they were inspired by the very principle of humanity in warfare. Some years later, Bolivar, was issuing to his troops clear orders as to fully abide by these rules, “... even in the case that the enemy did not...”, ahead of the codification of the principle of non reciprocity regarding humanitarian obligations. In 1832, In his famous " Principles of international law " , Andrés Bello, the distinguished Venezuelan lawyer who spent most of his life in Chile, deeply reflected on the question of the limitations of the means and methods of warfare on humanitarian grounds.

Two additional examples of this pioneering spirit of humanity of the " New world " can be mentioned. These important legal initiatives took place in the United States of America and in the United States of Colombia at the same time that Henry Dunant, the founder of the Red Cross Movement, was striving to give birth to the first multilateral treaty of modern international humanitarian law - efforts that became reality in 1864, with the adoption of the first " Geneva Convention " .

In 1863, in the midst of the American Civil War, President Abraham Lincoln issued the famous " Instructions for the government of armies of the United States in the field " , known as the " Lieber Code " , from the name of its author, the German-American lawyer Francis Lieber. Even if only applicable to the soldiers of the Union, this 157 articles long " code of conduct " set a valuable precedent as for the application of the rules of the " ius in bello " to civil strifes.

A few years before, Colombia adopted a new political Constitution after decades of civil wars. This " magna carta " surprisingly included an articl e dealing with the waging of war in internal conflicts, and stipulating that the actual rules of international law would apply to the national legislation and would specifically govern the situations of civil wars. And in 1893, Venezuela did the same. This idea of " humanizing war in order to reach peace " was already present in the mind of the legislators, and somehow premonitory. It is still valid today in Colombia as in many other countries of the world.

As a matter of fact, the interest of America toward IHL and its forefront role in the development of humanitarian standards and practices appears to be closely related the history of this part of the world, which has required in more than one occasion the recourse to its use, in order to try to preserve some parcels of humanity in the height of the fighting between neighbors or among fellow citizens. In turn, the need to resort to IHL rules or principles, or the necessity to appeal to the provision of humanitarian services has been, most of the time, synonymous of the " offers of services " made by the International Committee of the Red Cross

In this context, our organization has been closely associated with the most turbulent phases of your contemporary history, in situations of armed conflict, internal strife, civil unrest and other types of violence that have occurred throughout America. I have to say that the mission that our delegates have been able to carry out, in their endeavors to address the humanitarian needs created by these different patterns of violence, has been largely backed up by the efforts of the National Red Cross Societies of America. These were among the first to be established outside Europe, starting with the Peruvian and the Argentine, back in 1880 and 1882.

Let me just mention a few contexts where the ICRC has been present, in order to try to alleviate the fate of those affected by the events and to ensure they were respected and assisted, according to the basic rules and principles of humanity, through its different activities such as, its visits to security detainees, its action against ill treatments and forced disappearances, its role of neutral intermediary or facilitator between the parties in conflict, or its relief and medical programs on behalf of the civilians affected by the violence, including the internally displaced persons.

Without going back to the Chaco war, in the thirties, where some of our staff was already present, I might just refer to the past quarter of century, with the internal conflicts that took place in Central America, with the numerous authoritarian regimes that ruled most of the Hemisphere's southern part, with the international conflicts that opposed Honduras and El Salvador, Ecuador and Peru and Argentina and the United Kingdom, with the external military interventions that took place in Grenada and Panama, with the internal problems of Haiti and Peru, and with the perduring armed conflict of Colombia.

Indeed, America possesses a long and rich political, social and juridical tradition, in which the protection of the fundamental rights holds a very prominent place. Contrarily to human rights law, that applies in all circumstances and covers a very broad scope interests, IHL is specifically aiming at bringing protection and assistance to those affected by armed conflict, of international or internal nature, as well as to limit the methods and means of combat in order to avoid unnecessary suffering or superfluous damages.

As such, we understand that this body of law might now represent a somehow disturbing subject, in a continent where the reference to IHL could be synonymous of a reminiscence of situations that one would for ever forget about, or hope never to see happen. This is particularly true at a period of the continent's history when overall internal and interstate peace are reigning, in the conte xt of the regional integration processes in progress and thanks to the OAS efforts in the field of hemispheric security and confidence building measures. 

As a matter of fact, with the exception of a few worrying situations of armed conflict and internal political violence, with the aggravating factor of an interrelation with phenomenon as terrorism, drug trafficking and common criminal violence, America may yet look ahead with a rather good dose of optimism, if it compares its situation with other parts of the world, where the scourge of " all-out wars " or " protracted conflicts " is profoundly affecting entire populations, and therefore calling for the help that both humanitarian law and humanitarian action are qualified to provide.

Nevertheless, the sometimes dreadful social consequences of the actual financial crisis, in the framework of the globalization process and of the economies'liberalization trend, as well as the persisting injustice prevailing in the patterns of distribution of wealth are factors clearly indicating that social unrest, possibly leading to violent forms of demands, cannot be excluded. 

Our purpose today is certainly not “to paint the devil on the wall”, but to look ahead with a spirit of preventive action. This is precisely what " national measures of application of IHL " are about. Preventive action in its different dimensions :

* firstly, through the universalization of the adherence to the precepts of IHL, which largely relies on the states'formal adherence to the concerned treaties;

* secondly, through the comprehension and acceptance of IHL rules by all sectors primarily concerned by their possible application, which goes through systematic efforts of dissemination and training, particularly among armed and security forces;

* thirdly, by mean of a deep-rooted an chorage of these norms, in peace time already, in the constitutional, legal and administrative systems of states, which is pursued through the national measures of application of the international norms into the domestic legal systems and proceedings.

This last aspect of prevention is precisely the main issue of today's session's concerns and it is precisely the object of the report we would like to share with you, and with your governments. This aspect deals with the normative and instrumental component of prevention, aimed at converting the conventional norms of protection into binding instruments with “coercice teeth”. As a matter of fact, humanity is definitely tired of these marvelous treaties that turn out to be rather ineffective, when in need of enforcement. Quoting an imaginative expression of a Brazilian jurist, Quintino Bocayuva, “treaties can either be living and animated beings” when in force, and of obligatory nature, “either motionless corpses, to left in the bookshelves of libraries " , if not enforceable through effective mechanisms of application. In other words : " pacta sunt servanda " .

May I conclude this intervention referring to the cooperation between the OAS, its member states and the ICRC. By placing among your standing preoccupations the theme of respect for and promotion of IHL, including your determination to convert this Hemisphere as a " land mines free zone " , you are demonstrating the firm commitment of this part of the world toward this body of law, its norms and the values and principles that underlie them. This is a clear demonstration of solidarity with the victims of wars all over the world. As you know, this particular system of protection entails the principle of collective and universal responsibility for the application of its dispositions, as States parties to the 1949 Geneva Conventions, under their article 1, have undertaken not only “to respect” them but also “to ensure respect” for their provisions.

As you know, these Conventions that have been considered as part of the " world heritage " will be 50 years old in August. I do seize this occasion to ask States, intergovernmental organizations like the OAS and all individuals concerned to renew their humanitarian commitment through concrete demonstrations, like adhering to treaties they are not yet party to - as the Geneva “Additional Protocols” of 1977, the 1980 Conventional Weapons Convention and its Additional Protocols, the Ottawa mines banning treaty and the Rome ICC statute-, like withdrawing the reserves made to these treaties at the moment of becoming parties. These initiatives will definitely reinforce the defense of future generations against the barbarity of wanton violence and the indiscriminate effects of war, as long as mankind does not find a way to peacefully settle its disputes.

Thank you for your attention

 Ref. EXSO 99.03.17 - ENG