The 25 years of the Additional Protocols to the Geneva Conventions of 1949 - ICRC statement
On 8 June 1977, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, adopted the two Protocols additional to the Geneva Conventions of 1949. One relates to the protection of victims of international armed conflicts and the other to the protection of victims of non-international armed conflicts. The essence of these treaties provides an adequate basis for the protection of human beings in time of war. Statement by Mr Jakob Kellenberger, President of the International Committee of the Red Cross.
Your Excellencies, Ladies and Gentlemen,
I thank Ambassador Michel and his staff for having taken the initiative for this Round Table. It is a pleasure to address you today at this Table marking the 25th anniversary of the two Protocols additional to the Geneva Conventions of 1949. This event gives us the opportunity not only to celebrate historical achievements but also to confront contemporary challenges.
Twenty-five years ago, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, convened by the government of Switzerland, the depositary State of the Geneva Conventions, adopted the two Protocols additional to the Geneva Conventions of 1949. One relates to the protection of victims of international armed conflicts and the other to the protection of victims of non-international armed conflicts.
The adoption of the Protocols constituted a very important stage in the codification of international humanitarian law because they completed the provisions of the Geneva Conventions, while adapting humanitarian standards then in force to present-day realities. They secured better protection for the individual in armed conflicts by taking into account new realities on the battlefield, in particular the emergence of guerrilla warfare and technical advances in weapons'technology, which made it possible to extend the battlefield ad infinitum engendering tremendous risks for the civilian population.
The major breakthro ugh of the First Additional Protocol was the substantial progress achieved in the rules relating to the conduct of hostilities. Contrary to the treatment of civilians in enemy hands, the authorised methods and means of warfare and the protection of the civilian population against the effects of hostilities had remained untouched since the Hague Conventions of 1907.
The cornerstone, which stands for the Protocol's aim of better protecting the civilian population, is the principle of distinction. This principle requires that the Parties to the conflict distinguish at all times between the civilian population and combatants and between civilian objects and military objectives. This principle is crucial, as lawful attacks may only be directed at combatants and military objectives. In addition, the First Additional Protocol reaffirms and clearly defines for the first time in a treaty the customary principle of proportionality in the conduct of hostilities. By this principle attacks on lawful targets only remain lawful if the incidental casualties or damages are not excessive. It should be emphasised that there are other rules relating to methods and means of warfare, such as the prohibition of weapons and methods of warfare of a nature to cause superfluous injury, which do not only protect the civilian population but also combatants. The International Fact Finding Commission, referred to in article 90, had, unfortunately, so far no opportunity to exercise its functions.
The Second Additional Protocol is the first-ever universal treaty devoted exclusively to the protection of the individual and restriction on the use of force in non-international armed conflicts, the majority of today's conflicts. In this sense, the Second Additional Protocol is a remarkable comple ment to Article 3 common to the four Geneva Conventions, which was until then the only provision applicable to such situations. The Second Additional Protocol represents an important step in the protection of victims of civil wars. This is especially apparent in its detailed enumeration of fundamental guarantees for all persons who do not or no longer take a direct part in hostilities, of the rights of persons whose liberty has been restricted, and of judicial guarantees, which all go far beyond those contained in the " hard core " of human rights law.
This positive note in relation to the Second Additional Protocol should not lead us to conceal the disappointment - felt at the time of the adoption - of the ICRC who saw its more ambitious draft consisting of a full 47 articles reduced to the version which we now know. Among other issues, the ICRC's proposal had been that the material field of application of the Protocol should, contrary to what was then adopted, be identical with that of common article 3.
The value of the two Protocols also resides in their multicultural backdrop; indeed, all of the world's main powers took part in drafting the texts. The adoption of the Protocols drew the curtain on a whole chapter of international humanitarian law which had in the past often come under attack as being too Western-oriented. In fact, the Protocols are among the most widely accepted legal instruments (at present, 160 States are party to the First Additional Protocol and 153 to the Second Additional Protocol), though still quite far behind the 1949 Geneva Conventions, which are practically universal (190 States Parties).
These treaties reflect the fabric or the core of International Humanitarian Law. In the last 25 years, partly owing to the growing number of States party to the Protocols, and partly owing to the application of their content by States which are not party to them, a body of universal customary rules has emerged, reflecting the treaty-based norms. This customary law offers or, better, should offer, a measure of security in situations where the treaties do not formally apply, especially in non-international armed conflicts. Thanks to the Protocols, the fundamental principles have been reaffirmed and crystallised. They constitute an intangible basis for the protection of the individual whenever armed force is used.
The twenty-fifth anniversary of the two Additional Protocols presents an occasion to highlight their special relevance, and that of international humanitarian law in general, in today's armed conflicts. Particularly in the last year, doubt has been raised as to whether international humanitarian law remains applicable to the new security threats posed today. There is, for the ICRC, no question that its norms are adequate to deal with security risks in war because its provisions were designed specifically for the exceptional situation of armed conflict. The generations of experts and diplomats who crafted international humanitarian law over the last two centuries were fully aware of the need to balance state security and the preservation of human life, health and dignity. That balance has always been at the very core of the laws of war.
Most scholars engaged in analysing present-day conflicts are of the opinion that the rules on conduct and protection as expressed in the basic treaties of international humanitarian law, namely the 1949 Geneva Conventions and the 1977 Additional Protocols, meet the basic needs of individuals and peoples caught up in the maelstrom of today's wars. We believe that these rules will be just as pertinent in the wars of tomorrow, since the fundamental values which need to be safeguarded are timeless.
Our belief in the continued validity of existing law should not be taken to mean that intern ational humanitarian law is perfect, for no body of law can lay claim to perfection, but any attempt to reevaluate its appropriateness can only take place after it has been determined that it is the law that is lacking, and not the political will to apply it. Pacta sunt servanda is an age-old and basic tenet of international law which means that existing international obligations must be fulfilled in good faith. This principle requires that attempts to resolve ongoing challenges within an existing legal framework be made before calls for change are issued. Any other course of action would risk depriving the law of its very raison d'être - which is to facilitate the predictable and orderly conduct of international relations. Care should especially be taken not to amend rules designed to protect individuals in times of crises, because individuals have no other protection from arbitrariness and abuse except implementation of the law.
Yet, international humanitarian law is not static. This body of norms, like all others, is constantly subject to refinement and change. The very first contemporary international humanitarian law treaty, the Geneva Convention of 1864, aimed at ensuring that wounded soldiers, regardless of the party to which they belong, were not left to die on the battlefield, but were protected and cared for. Today, the four Geneva Conventions of 1949 and their Additional Protocols of 1977 are the backbone of a complex web of humanitarian law treaties aimed at limiting the effects of violence in armed conflict.
The ICRC's history is intimately linked to the creation and development of international humanitarian law. The ICRC contributed extensively to the elaboration of the Protocols by organizing expert meetings, presenting draft protocols and actively participating in the negotiations of the Diplomatic Conferenc e between 1974-1977. The ICRC has an abiding interest in seeing that humanitarian law norms are observed and to continue to play its role in the development of international humanitarian law, which may occur in specific areas, for example in the field of restrictions and limitations of certain weapons. Nevertheless a major rewriting of the treaties is not necessary. Without neglecting the possibility and need of specific improvements of the law, it is these days by far more important to work for a better respect of existing rules. And it is through the very first article of the Geneva Conventions and First Additional Protocol that States Parties undertook to respect and ensure respect of those rules in all circumstances.
I would, lastly, like to address the fear that the protection afforded individuals by international humanitarian law is an obstacle to justice. The Geneva Conventions and their Additional Protocols do not prevent justice, they only require that the due process of law be applied in dealing with offenders.
Each of the 1949 Geneva Conventions has specific provisions listing acts which are considered grave breaches of their rules, such as the killing, torture and denial of fair trial rights to protected persons. The list of grave breaches was expanded with the adoption of the 1977 Additional Protocols to criminalize certain other acts, particularly those aimed at harming civilians through the unlawful conduct of hostilities. With a view to ensuring better respect of international humanitarian law, States agreed to assigning a greater degree of responsibility to commanders. They are required to prevent and, where necessary, to suppress and report to competent authorities breaches of the Conventions and of the First Additional Protocol. This is a just and heavy responsibility, but one which is not sufficiently well known and is therefore neither duly observed nor complied with. The Conventions and Protocols not only encourage States to bring perpetrators of war crimes to justice, they demand it, including by means of exercise of universal jurisdiction.
Today the ICRC increasingly draws attention to the poor level of respect for and implementation of the law. For an organization mandated by the community of States to provide protection, this growing discrepancy is alarming. On the anniversary of the two Additional Protocols I therefore wish to remind all concerned that poor implementation of existing law does not bode well for the scope and the effectiveness of current and future developments of international legal instruments. States have a primary responsibility to address this issue.
This is however by no means a message of resignation. Quite to the contrary. The mobilization of all those who can, through their influence and action, contribute to a better respect remains an important activity of the ICRC. The representations made on a daily basis - as we speak in fact - by delegates in the field to those who violate the rules is probably the most important - and often lifesaving - contribution. It is also one that requires great determination and courage.
The respect for and the implementation of the international humanitarian law should not be expected to improve quickly. The further development of operational capacities of the ICRC - already considerable today - to carry out protection, assistance and rehabilitation activities wherever it is required and the ICRC is best placed to do so, therefore remains a top priority.
The two Protocols are an essential complement to the 1949 Conventions. Nowadays, the rules of Geneva and those of The Hague make up an indissociable whole. The essence of these treaties provides an adequate basis for the protection of human beings in time of war. We therefore need to ensure that the Protocols attain the same degree of universality as that enjoyed by the Conventions.
I should not end this statement without paying a renewed tribute to Jean Pictet, who died end of March this year. As we are all acutely aware, he also played a decisive role in the entire process leading to the adoption of the two protocols.
Thank you for your attention.