International Humanitarian Law at the Beginning of the 21st Century
26th Round Table in San Remo on current problems of international humanitarian law: "The two Additional Protocols to the Geneva Conventions: 25 years later — challenges and prospects". Statement by Dr. Jakob Kellenberger, ICRC President.
The round table was organised by the International Institute of Humanitarian Law in co-operation with the ICRC.
Mr. President, Your Excellencies, Ladies and Gentlemen,
I thank the International Institute of Humanitarian Law for having organised this Round Table and the President of the Italian Republic for kindly extending his high patronage to our meeting. It is a pleasure to be with you today to discuss the first twenty-five years of the two Additional Protocols to the Geneva Conventions of 1949. This event gives us the opportunity to look ahead with a critical eye and assess the role of international humanitarian law at the beginning of the 21st century, as well as the challenges it faces.
Twenty-five years ago, 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. The first relates to the protection of victims of international armed conflicts and the second to the protection of victims of non-international armed conflicts.
The adoption of the Protocols constituted an important stage in the codification of humanitarian law. The Protocols complemented the provisions of the Geneva Conventions and adapted then evolving humanitarian standards to present-day realities. They secured better protection for the individual in armed conflicts by taking into account new developments in the waging of war. I refer, in particular, to the emergence of guerrilla warfare as well as technical advances in weapons technology, which made it possible to extend the battlefield ad infinitum , thus engendering tremendous risks for the civilian population.
The major breakthrough of the First Additional Protocol was the substantial progress achieved in the codification of rules on the conduct of hostilities. Unlike the rules regulating the treatment of civilians in enemy hands - which had been considerably developed by the Fourth Geneva Convention - the rules on lawful methods and means of warfare and the protection of the civilian population against the effects of hostilities had remained more or less untouched since the Hague Conventions of 1907.
The cornerstone of the Protocol are the provisions codifying and elaborating the principle of distinction. This principle requires parties to an armed conflict to 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 codifies for the first time the customary requirement of proportionality in the conduct of hostilities. Pursuant to this principle attacks on lawful targets only remain lawful if the incidental civilian casualties or damages are not excessive. The Protocol also reaffirms and supplements other rules relating to methods and means of warfare, such as the prohibition of weapons and methods of warfare of a nature causing superfluous injury or unnecessary suffering, which not only protect the civilian population but also combatants.
The Second Additional Protocol is the first treaty devoted exclusively to the protection of the individual a nd the regulation of certain methods of warfare in non-international armed conflicts, which constitute the majority of today's conflicts. This instrument is an important complement to Article 3 common to the four Geneva Conventions, which was, until 1977, the only conventional provision expressly applicable in such conflicts.
The Second Additional Protocol represents a step forward 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. It should be noted that the Protocol's judicial guarantees provisions, in particular, surpass the protection afforded by human rights law, in as much as the specific judicial guarantees provided for under humanitarian law are non-derogable.
The value of the two Protocols also resides in their multicultural backdrop; indeed, states from all over the world participated in the negotiations of the texts. The adoption of the Protocols drew the curtain on a chapter of international humanitarian law which had in the past often come under criticism for being too Western-oriented.
Today the Protocols are among the most widely accepted international instruments. 160 states are party to the First Additional Protocol and 153 to the Second Additional Protocol. These impressive figures still fall short of the virtually universal acceptance of the Geneva Conventions, to which 190 states are party.
These treaties represent the core of international humanitarian law. In the last 25 years, owing partly to the growing number of states party to the Protocols, and partly to their application by states which are not party to them, a body of universal customary rules has emerged, reflecting the treaty-based norms, binding on all states regardless of ratification. This customary law offers or, rather, should offer, a measure of security in situations where the treaties do not formally apply or where the rules are less developed, especially in non-international armed conflicts.
In this respect, I would like to mention that, as many of you know, the International Committee of the Red Cross (ICRC) was mandated by the 26th International Red Cross and Red Crescent Conference to carry out a study to determine what the customary rules of international humanitarian law are today. The study, which is about to be finalized, consists of two volumes. The first contains a list of the rules found to be customary, accompanied by a short commentary. The second volume contains a summary of the actual practice on which the conclusions were based.
It is expected that the study will be available next year, and that it will be submitted to the International Red Cross and Red Crescent Conference in December 2003. The study represents a unique and extensive review of modern practice which, we hope, will prove a very useful tool and improve the protection of war victims.
Thanks to the Protocols, the principle of humanity, which underlies all of international humanitarian law, was reaffirmed and specific new norms expressing that principle were crystallised. They provide valuable protection for individuals whenever there is resort to armed force.
Ladies and Gentlemen,
While these were the advancements made in 1977, the twenty-fifth anniversary of the Additional Protocols also gives us an opportunity to look to the present day, and to the future, and to ask ourselves whether international humanitarian law addresses the realities of ongoing and potential future conflicts.
In the ICRC’s view, in general terms, international humanitarian law is adequate to meet the challenges raised by mod ern conflicts. It lays down minimum protection and standards to be applied in situations where persons are most vulnerable during armed conflict: not only in the battlefield during actual fighting but also when combatants are captured, wounded or sick, shipwrecked, or when civilians are interned, detained, displaced or in occupied territory.
International humanitarian law also aims to prevent situations which exacerbate vulnerabilities, such as displacement, the destruction of civilian property and of objects necessary for the survival of the civilian population and the separation of families.
Finally, it lays down additional protection for persons who are particularly at risk, such as children, women, separated families, detainees and refugees.
It is, of course, always possible to clarify or develop the legal framework in view of changing realities and needs. This will be the subject of discussion in the coming days.
One practical area where the law could be further clarified is with regard to targeting. As mentioned before, Additional Protocol I made important progress in the codification and development of the rules relating to the conduct of hostilities. However, the application of these rules in practice is sometimes difficult due to the fact that the provisions are framed in rather abstract terms, thus leaving room for divergent interpretations.
Specific challenges arising in modern conflicts relate to the definition of military objectives. There is considerable debate as to when traditionally civilian objects, such as TV and radio stations, make an effective contribution to military action and therefore become legitimate military targets.
The implementation of the principle of distinction is further challenged by the trend of the military to use civilian infrastructure, telecommunications and logistics also for military purpose s. Such practices may be difficult to reconcile with states'obligations to “avoid locating military objectives within or near densely populated areas” and to “take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations” to the maximum extent feasible.
Thus, while Additional Protocol I made important progress in the codification of the principle of distinction, its actual application in practice has often proved problematic.
Similar problems exist with regard to the principle of proportionality. Terminological imprecision linked, for example, to the concept of “concrete and direct military advantage” invites subjective interpretation and application. In addition, the proportionality test is quite complex to apply in practice: ideally, balancing involves the comparison of like values. In the case of proportionality the values are heterogeneous. Commanders are required to weigh the loss of civilian life, injury to civilians or damage to civilian objects against the concrete and direct military advantage anticipated. It has often been asked how one objectively calculates the relative weight of a military aircraft, tank, or vantage point in terms of human casualties.
This being said, I do not see a need to modify these rules, but there might be a need to further clarify their proper interpretation and application.
On the other hand, further development of rules would be desirable and hopefully possible with respect to Additional Protocol II, the text of which, as is well-known, was reduced to a minimum in the final hours of the 1977 Diplomatic Conference. It might be useful to examine which of the Protocol's currently rudimentary provisions on conduct of hostilities could be elaborated to provide better protection for civilians against the effects of hosti lities in non-international armed conflicts. How to ensure better implementation of international humanitarian law by non-state actors is another topic deserving further examination.
As for the more general issue of the development of humanitarian law I shall come back to that a bit later.
Ladies and Gentlemen,
At a more general level, it has been asked whether international law in general, and international humanitarian law specifically, are adequate tools for dealing with the post-September 11th reality.
My answer to this is that international law, if correctly applied, is one of the strongest tools that the community of nations has at its disposal in the effort to re-establish international order and stability.
What we have to be clear about is which body of law is the right tool. It is the rules of the United Nations Charter, and not international humanitarian law, that regulate the use of force in international relations. The relevant provisions of the UN Charter provide guidance on questions such as legitimate resort to force, the right to self-defence and lawful responses to threats or breaches of international peace and security. It is the UN Charter that allows the international community to pass political and other judgment on the use of force in international relations.
International humanitarian law is, quite distinctly, the body of rules that regulates the protection of persons and conduct of hostilities during an armed conflict. Its aim is to alleviate the suffering of individuals affected by war regardless of the underlying causes — and therefore regardless of any justification — for the conflict. There are no " just " or " unjust " wars in terms of international humanitarian law because civilians, to name just one category of persons protected by its rules, have the right to be spared murder, torture or rape, no matter to which side they happen to belong.
A related doubt which has been raised is whether international humanitarian law is applicable to the challenges posed by terrorism.
The struggle against terrorism can take various forms: judicial co-operation and punishment of those responsible for acts of terrorism, the freezing of assets used to finance terrorism and, in the wake of the attacks of 11 September, armed conflict.
Accordingly, different bodies of law, including national and international rules of criminal law, are relevant in the struggle against terrorism. Inasmuch as the fight against terrorism takes the form of armed conflict, the position is uncontroversial: international humanitarian law is applicable. Factually, if there exists an armed conflict, whatever the causes, whatever the aim, whatever the name, it is regulated by international humanitarian law.
There is, in the ICRC’s view, no doubt that international humanitarian law is also 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 developed 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.
It cannot be emphasised enough that the protection afforded to individuals by international humanitarian law is not an obstacle to justice. The application of the protection laid down in the Geneva Conventions and the Additional Protocols will not amount to impunity – either in respect of crimes committed before the hostilities, nor in respect of violations of international humanitarian law committed during a conflict. They only require that due process of la w be applied in dealing with offenders.
Each of the Geneva Conventions contains specific provisions listing acts which are considered grave breaches of their rules, such as killing, torturing and denying the right to a fair trial to protected persons. The list of grave breaches was expanded with the adoption of the Additional Protocols to criminalize certain other acts, particularly those aimed at harming civilians through the unlawful conduct of hostilities. The Conventions and Protocols not only encourage states to bring perpetrators of war crimes to justice, they demand it, including by means of the exercise of universal jurisdiction.
Most scholars engaged in analysing present-day conflicts are of the opinion that the rules on the conduct of hostilities and on the protection of persons laid down in the principal treaties of international humanitarian law 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.
Yet, international humanitarian law is not static. This body of norms, like all others, is constantly subject to refinement, change and development. The very first contemporary international humanitarian law treaty, the Geneva Convention of 1864, aimed to ensure that wounded soldiers, regardless of the party to which they belonged, were not left to die on the battlefield, but were protected and cared for. Today, the four Geneva Conventions and their Additional Protocols are the backbone of a complex web of humanitarian law treaties aimed at limiting the effects of violence in armed conflict.
The number of developments at the normative level in the past years is a significant indication of international humanitarian law’s dynamism and adaptability to new situations and needs.
In less than ten years we have witnessed the establishment of three international tribunals – one of which permanent – to try persons accused of violations of international law, including international humanitarian law. We have also witnessed the adoption of Protocol II to the 1954 Cultural Property Convention, the adoption of the Ottawa treaty banning anti-personnel mines, the adoption of instruments restricting or prohibiting the use of certain other weapons: the Protocol on blinding laser weapons and the amended Protocol on mines, booby traps and other devices to the 1980 Convention on Certain Conventional Weapons. We have also seen the expansion of the scope of this Convention to non-international conflicts and the adoption of an instrument to enhance the protection of children in armed conflict.
These developments at the international level have been accompanied by a slow, but significant increase in the willingness of national courts to pursue persons accused of violations of international humanitarian law.
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 Additional Protocols by organising expert meetings, presenting draft protocols and actively participating in the negotiations of the Diplomatic Conference between 1974-1977.
More recently, the ICRC has been a driving force behind the efforts of the international community to address the scourge of explosive remnants of war . Far too often the ICRC has seen the horrific impact of weapons which fail to explode when delivered but later detonate, killing and injuring innocent civilians. The ICRC has been very active in encouraging states to improve international humanitarian law in this area. At the Second Review Conference for the Convention on Certain Conventional Weapons, held in December 2001, States Parties agreed to establish a Group of Governmental Experts to examine possible solutions to the problem of explosive remnants of war. It is our hope that negotiations on a legally binding instrument will begin in early 2003.
The ICRC's belief in the continued validity of existing law should not be taken to mean that international humanitarian law is perfect, for no body of law can lay claim to perfection and does not mean we are not asking ourselves questions. However, any attempt to re-evaluate 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.
Ladies and Genlemen,
There have been recent calls for the development of international humanitarian law, especially against the background of the fight against terrorism. I am not insensitive to such calls. The question whether or not international humanitarian law is providing the adequate tools for dealing with reality is indeed a legitimate one, not only after September 11th. But there is no doubt a need for intellectual rigor and honesty when addressing the issue. Some useful questions can and should be asked, among them:
what do proponents for change consider as being really new?
and if the situation is really new, why are existing rules of humanitarian law not considered to be adequate to deal with the new situation?
what is the aim of those who call for development? Do they want to improve the protection afforded by already existing rules?
do they want to extend the scope of application of international humanitarian law to new situations?
do they want to lower existing standards of protection? As far as this last point is concerned, you will understand that the ICRC will never be associated with initiatives aimed at weakening existing standards of protection.
It seems to me a legitimate question to be asked: to what extent is the distinction between international and non-international armed conflicts still relevant given the complexity of some of today’s armed conflicts (overlapping and penetration of different types of conflict in one region)?
I do not yet have an answer to the question as to whether or not an extension of the scope of application of humanitarian law to new situations is necessary and desirable, but I can understand that the question is being asked. We have rules for international armed conflicts between states and we have rules for internal armed conflicts between state and non-state actors. But what about a situation which looks indeed as a pretty new one: the conflict of a coalition of states with a transnationally acting non-state actor, using methods of terrorism? Should the scope of application of humanitarian law be extended to this type of conflict or to conflicts in a grey area between internal (internationalised or not) armed conflicts and police actions?
Let me be clear on this point though. If the scope of application of international humanitarian law is expanded to cover new situations, it will permit the prosecution of per sons having violated the law, but it will also require them to be granted all the rights and protection foreseen by this body of law.
Ladies and Gentlemen,
Without neglecting the possibility of and need for improvements of the law, I believe that the greatest challenge today towards which the ICRC, but also the international community as whole, should direct its energies is ensuring greater respect of existing rules. Without greater respect of existing rules the credibility and protective value of new rules would also be very limited.
How can respect be improved? There are a multiplicity of possible avenues. First, and quite simply, respect can be improved by spreading the knowledge of the rules – both to authorities and combatants but also to civil society. We should not underestimate the potential of civil society in restraining the actions of authorities and combatants. It is therefore essential to renew training and dissemination efforts to expand the knowledge of and commitment to international humanitarian law. In this respect I cannot fail to mention and commend the activities of our host, the International Institute of Humanitarian Law for its commitment to the dissemination of international humanitarian law.
Secondly, respect during times of armed conflict can be improved by the adoption of preliminary steps by national authorities in times of peace. In addition to ratifying the relevant conventions, states must be encouraged to adopt national measures for the application of international humanitarian law.
The ICRC’s Advisory Service – which was established in reply to a request by states – provides assistance in the form of legal advice, the organisation of seminars and meetings of experts and the preparation of specialised documents in all areas of humanitarian law which require the adoption of n ational measures. The Advisory Service also encourages the formation and supports the work of national committees tasked with incorporating international humanitarian law into national legislation. To date more than 60 such inter-ministerial committees have been established world-wide.
Thirdly, the mobilisation of all of those who can, through their influence and action contribute to a better respect of the law remains a crucial activity for the ICRC. The representations made on a daily basis by delegates in the field to those who violate the rules is probably the most important – and often life-saving - contribution.
Last, but by no means least, I wish to recall that under the very first article of the Geneva Conventions and the First Additional Protocol, States Parties undertook to “respect and ensure respect” for their provisions in all circumstances. In particular, states not involved in an ongoing armed conflict should take appropriate action against states bearing responsibility for violations of humanitarian law with a view to terminating such violations.
This collective duty of states to strive to ensure respect of international humanitarian law is reiterated in Article 89 of Additional Protocol I, which calls upon States Parties to undertake to act jointly or individually in co-operation with the United Nations and in conformity with the United Nations Charter in situations of serious violations of international humanitarian law.
As has been stated by the International Criminal Tribunal for the former Yugoslavia “norms of international humanitarian law (…) lay down obligations towards the international community as a whole, with the consequence that each and every member of the international community has a'legal interest'in their observance and consequently a legal entitlement to demand respect for such obligations.”
To conclude, I turn to you for inspiring suggestions on how this responsibility to " ensure respect " for international humanitarian law can be effectively applied in practice. I firmly believe that finding ways in which the international community can discharge this obligation is one of the major challenges facing humanitarian law in the years ahead. It is a challenge that must be addressed if humanitarian law is to continue to serve its very purpose.
I wish you an inspiring Round Table and thank you for your attention.