Organization for Security and Co-operation in Europe: Tenth Meeting of the Ministerial Council
Written contribution by the International Committee of the Red Cross. Porto, 6-7 December 2002
The International Committee of the Red Cross (ICRC) thanks the Organization for Security and Co-operation in Europe (OSCE) for inviting it to take part in its proceedings on a regular basis and to submit a written contribution to the Ministerial Council. This document will review a choice of topics, either of a thematic nature or related to specific field operations.
This year marks the 25th anniversary of the adoption of the two Additional Protocols that further developed the Geneva Conventions and strengthened the protection of victims of international and non-international armed conflicts. This anniversary is an opportunity not only to celebrate the past, but also to consider the present and look to the future with a view to examining whether humanitarian law addresses the realities of ongoing and potential conflicts.
It has been asked whether international law in general and international humanitarian law in particular are adequate for dealing with the fight against terrorism . It is important to be clear about which body of law is applicable in a given situation. It is the rules of the United Nations Charter, not those of humanitarian law, that govern the use of force in international relations. The Charter deals with issues such as the right to self-d efence and lawful responses in the event of threats to or breaches of international peace and security.
International humanitarian law is an altogether different body of rules that protect people and govern the conduct of hostilities during armed conflict. Its aim is to alleviate the suffering of individuals affected by war regardless of the underlying causes of the conflict. If the fight against terrorism takes the form of an armed conflict, it is obvious that humanitarian law is applicable. The ICRC welcomes the clear stand taken by the OSCE and others in June of this year. In the ICRC's view, humanitarian law is adequate to deal with security risks in war because its provisions were designed specifically for the exceptional circumstances of armed conflict. The balance between State security on the one hand and the preservation of human life, health and dignity on the other has always been at the very heart of the laws of war.
It is also important to recognize that the “war on terrorism”, in its entirety, does not constitute an armed conflict. The struggle against terrorism can take various forms, including judicial cooperation between States, the punishment of those responsible for acts of terrorism, the freezing of assets used to finance terrorism and, of course, armed force. Accordingly, different bodies of law, including national and international criminal law and also human rights law, are relevant in the struggle against terrorism alongside international humanitarian law.
One of the criticisms levelled at international humanitarian law is that its provisions constitute an obstacle to justice. This is inaccurate. The Geneva Conventions and their Additional Protocols not only encourage States to bring perpetrators of war crimes to justice, they demand it — if need be, by exercising universal jurisdiction. They also require that due process of law be applied in de aling with offenders. The ICRC is of the opinion that humanitarian law is adequate to meet the challenges raised by the fight against terrorism within the scope of armed conflict. The organization strongly believes that the protections of humanitarian law remain more pertinent and necessary than ever before.
Just like any other body of law, international humanitarian law is not perfect. A legal framework can, of course, always be clarified or developed in accordance with changing realities and needs. Over the last decade, there have been remarkable developments in humanitarian law, as evidenced by a series of treaties prohibiting or restricting the use of certain weapons, and treaties and other instruments establishing international judicial bodies with jurisdiction over grave breaches of the Geneva Conventions, serious violations of the laws and customs of war, and other crimes.
However, the time does not seem ripe for a general revision of the Geneva Conventions and their Additional Protocols. This is because, first , any attempt to review their relevance can take place only after it has been established that it is the law that is deficient, and not the political will to apply it. Second , a very careful analysis would have to be made before re-opening the fundamental treaties of humanitarian law. This would be an uncertain process, which could easily take years. Third , in the ICRC's view, any development of humanitarian law decided upon by the international community must not weaken existing law. The ICRC could hardly be associated with a process that aimed at lowering existing standards of legal protection.
The ICRC stands ready to discuss any proposal and is open to constructive dialogue on i ssues relating to international humanitarian law. It should be borne in mind, however, that existing international obligations must be fulfilled in good faith. Attempts to resolve any problems encountered must therefore be made within the existing legal framework before attempting to change the framework itself. Without denying that the law could be improved, the ICRC believes that the greatest challenge today, and in the future, is to achieve greater respect for existing rules.
Uncertainty about the fate of their loved ones is a harsh reality for countless families affected by armed conflicts and situations of internal violence. Across the world, parents, spouses and children are desperately trying to find lost relatives. Their anxiety can remain with them for years after the fighting has subsided and peace returned. Many are unable to move on with their lives or begin the process of recovery, sometimes passing on feelings of injustice and resentment to future generations, thus undermining relations between groups and nations even decades after the actual events.
Action must be taken. Governments should take the lead, backed, where required, by humanitarian and human rights organizations to prevent persons from going missing and to deal with the consequences. Acting on the basis of the mandate conferred on it by the international community, the ICRC has for many years sought to prevent disappearances, to restore family ties when they have been broken, and to ascertain the whereabouts of the missing. Yet in many contexts the ICRC has been unable to fulfil its mandate, for lack of sufficient political will on the part of those concerned, or simply because of generalized confusion and disruption prev ailing in societies affected by conflict.
The ICRC accordingly has resolved to launch a process of reflection with the parties concerned. A first phase has been devoted to gathering and analysing information on a select number of topics, in close cooperation with academic institutions and some 120 governmental and non-governmental experts. The topics reviewed cover protection work and restoration of family links, management of human remains, support for the families of missing persons, collection and management of personal data, and mechanisms for handling cases of missing persons. For each of these topics, needs of those affected, constraints and ways to address them were pointed out, and recommendations and best practices were formulated; a report containing the findings of this process should be ready by the end of January 2003.An international conference organized by the ICRC will then take place from 19 to 21 February 2003, bringing together governments, intergovernmental organizations such as the OSCE, and non-governmental organizations, National Red Cross and Red Crescent Societies, research institutions and individual experts. Its outcome should be of direct use to the political and humanitarian actors working in situations of armed conflict and internal violence.
Since early 2000 the ICRC has participated in the OSCE's efforts to develop and implement its Document on Small Arms and Light Weapons . The inadequate regulation of arms availability has enormous impact in humanitarian terms and grave implications for international humanitarian law. The ICRC therefore encourages the OSCE to keep this issue high on its agenda and to strive for full implementation of the OSCE Document, which constitutes one of the better regional frameworks for action in this field. In particular, the organization urges States to adopt national policies and laws on arms exports that will include careful scrutiny of a potential recipient's respect for humanitarian law. The ICRC presented to the February 2002 OSCE meeting on small arms a set of " indicators " of likely respect for this law that could be used in decision-making by States. Finally, the ICRC would also like to underline the importance of providing adequate structures and resources to implement national commitments in this field.
The ICRC continues to be active throughout the OSCE region in calling attention to the horrific effects of anti-personnel mines , encouraging more States to adhere to the Ottawa Convention prohibiting these weapons, providing mine-awareness programmes and delivering assistance to victims of mine accidents. The ICRC has noted a dramatic reduction in the number of mine casualties in several countries where the Convention’s provisions are being implemented. Landmines, however, particularly in OSCE countries, are part of the broader problem of unexploded ordnance that remains on the ground after conflicts have ended. The ICRC has been instrumental in building support for a new international agreement on " explosive remnants of war " and hopes it will have the active backing of all OSCE States.In another arms-related field the ICRC has recently issued an " Appeal on Biotechnology, Weapons and Humanity ", which calls attention to the growing risk that advances in the biosciences will be misused for hostil e purposes, and asserts the need for governments, scientists and industry to reaffirm existing norms and commit themselves to preventive action.
The International Conference of the Red Cross and Red Crescent to take place from 2 to 6 December 2003 will afford opportunities to reaffirm the continued relevance of international humanitarian law, to find effective means of ensuring respect for that law and to address other prominent issues of humanitarian concern, such as the concept of an international disaster-response law, the risks associated with communicable diseases (including HIV/AIDS), and discrimination against minorities (including migrants). The proposed theme for the 2003 International Conference is "Protecting Human Dignity" , which is intended to highlight the Movement's commitment to protecting fundamental values regardless of a person’s nationality, sex, ethnic origin, or religious or political convictions.
In the volatile environment of the northern Caucasus, the ICRC continues to face important challenges in the discharge of its humanitarian duties. Heavy security constraints could restrict the ICRC's activities at any time. In accordance with an assessment of concrete needs and the evolution of the situation on the ground, there will be an overall shift of emphasis of the ICRC's activities towards Chechnya in 2003. Activities in Ingushetia and Daghestan will be maintained at reduced levels. Drawing on its experience and building on existing programmes, the ICRC will seek to improve its response to the population’s persisting needs and ensure proper coordination with all concerned, from the authorities to international and non-governmental organizations.
Activities will be intensified in the field of protection . They will focus on detainee welfare but will also involve other areas and will increase in scale. Particular emphasis will be placed on addressing the issue of missing persons and promoting respect for the civilian population through confidential dialogue with the authorities. Assistance activities will be re-oriented through improved targeting of beneficiaries using household analysis and criteria for social and economic vulnerability. The ICRC will run programmes providing structural support in the areas of shelter, water and medical treatment. The orga nization will also use every means available to strengthen operational communication, in particular to spread knowledge of international humanitarian law among armed and security forces and to raise awareness within communities of the dangers of mines. In addition, the ICRC will continue to reinforce operational cooperation with all members of the International Red Cross and Red Crescent Movement, including the Russian Red Cross Society and its branches in the northern Caucasus.
An improved security and political situation in the Balkans will allow the ICRC to phase out direct food aid in 2003 for the first time since it became involved in the region in 1991. While food aid for internally displaced persons will be discontinued both in the Federal Republic of Yugoslavia and in the former Yugoslav Republic of Macedonia, limited economic assistance projects will continue for this target population in Serbia.
Various missing-person files remain painfully unresolved in Croatia, in Bosnia-Herzegovina and in the Federal Republic of Yugoslavia, including Kosovo, and the ICRC will renew its efforts in this area after the international conference on missing persons takes place in Geneva in February 2003.