Sixty years of the Geneva Conventions and the decades ahead
Statement by Jakob Kellenberger, president of the ICRC, to the conference on the challenges for IHL posed by new threats, new actors and new means and methods of war, organized by the Swiss Federal Department of Foreign Affairs in cooperation with the ICRC, Geneva, 9-10 November 2009.
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Madame la Conseillère Fédérale,
Ladies and Gentlemen,I would like to thank the Swiss Federal Department of Foreign Affairs for having associated the ICRC with its initiative to organise this Conference. The ICRC has cooperated in the design of the programme and in providing background papers for the workshops.
Before addressing the main issues of this Conference, let me stress that the fact we are today examining future challenges to IHL in no way means that the basic principles and rules of this branch of international law are outdated. The principle of humanity, which underlies the treatment of any person in enemy hands and is expressed in numerous IHL rules, regardless of the type of armed conflict involved, remains a bedrock. Similarly, the principle of distinction may not be transgressed. The numerous rules on the conduct of hostilities elaborating on this principle continue to be fundamental for the protection of civilians. In short, the existing principles of humanitarian law must be preserved. No matter what possible developments IHL may undergo in the future, nothing can be allowed to jeopardise or undermine the protections already provided by IHL to persons affected by armed conflict.
Ladies and gentlemen,
Armed conflicts have evolved enormously over the past 60 years and lines have become increasingly blurred between various parties to an a rmed conflict, as well as between combatants and civilians. It is civilian men, women and children who have increasingly become the main victims. IHL has necessarily adapted to this changing reality. The adoption of the first two Additional Protocols to the Geneva Conventions in 1977, with the rules they established on the conduct of hostilities and on the protection of persons affected by non-international armed conflict, is just one example. Specific rules prohibiting or regulating weapons such as anti-personnel mines and, more recently, cluster munitions are another example of the adaptability of IHL to the realities on the ground.
The traumatic events of 9/11 and its aftermath set a new test for IHL. The polarisation of international relations and the humanitarian consequences of what has been referred to as the " global war on terror " have posed a huge challenge. The proliferation and fragmentation of non-state armed groups some of whom reject the premises of IHL, have posed another challenge.
IHL has withstood these challenges with its reputation intact, and its adequacy and adaptability as a legal framework for the protection of victims of armed conflict reaffirmed. At the same time it has become increasingly evident that certain issues require clarification. With that, there is a need to seriously envisage the development of IHL in specific areas, and I will come back to this point in a few moments.
The nature of armed conflict and the causes and consequences of such conflict will continue to evolve, and it is essential that IHL continues to evolve too. The crucial question is how exactly it should do so. Our shared reflections during this Conference should go some way towards further exploring possibilities – and constraints – in this regard.
With regard to the themes of the four workshops to be held this afternoon, a few remarks o n each of the four: Firstly, what do we actually understand by "new threats" ? For our purposes today, the term " new threats " will be taken to cover both existing threats that may intensify over the next few decades, as well as newly-emerging threats – specifically those which may lead to situations of collective violence, including armed conflict. These may include population growth and urbanisation, the scarcity of natural resources and the growing disparities in the distribution of wealth, ecological risks, failed States and transnational activities of criminal groups, including those using terrorist methods.
In analysing the causes and types of violence that are expected to occur in the future and whether IHL should be adapted as a result, participants will be confronted with a number of challenging questions. What will be the main threats to peace and security in the world in the next few decades and what kinds of armed violence will they result in? How can States, international organisations, humanitarian and development organisations and agencies prepare to meet the needs of people affected by future threats to peace and security, in particular situations of collective violence, including armed conflict? What is the role and importance of international law in this regard and IHL in particular? And will the importance of IHL as a body of law dealing with armed conflict increase or decrease in light of ongoing developments in the types of violence with which we will be confronted?
The potential range of "new actors" whose actions have repercussions at the international level is of course vast. While many of these " new actors " have in fact been around for some time, they have called into question – and will continue to call into qu estion – some of the more traditional assumptions on which the international legal system is based.
We will focus today particularly on new actors who are likely to be increasingly involved – directly or indirectly – in situations of collective violence including armed conflicts. The spectrum of these actors is still very broad, encompassing a range of identities, motivations and varying degrees of willingness, and ability, to observe IHL and other international law standards. Certain organised armed groups, private military and security companies, transnational corporations, urban gangs, militias and the huge variety of transnational criminal entities – including " terrorist " groups and pirates – all require scrutiny in this regard.
Identifying and understanding these actors and their characteristics is a fundamental prerequisite to better addressing the challenges arising from their involvement in modern armed conflict. It is also important to recognise how complex the reality is in order to avoid falling into the trap of misleading categorisation that does not serve the interests or increase the protection of people affected by contemporary conflict.
Allow me to remind you that IHL is the only legal framework specifically binding non-State armed groups. Common Article 3 of the Geneva Conventions and the Second Additional Protocol of 1977 both serve to this end, as do a large number of customary IHL rules. Several IHL clarification processes have also been undertaken in this regard.
However, it will be important to examine whether existing rules of IHL are adequate to deal with new non-State actors or whether further regulation is needed. If so, should new legal rules, standards or best practices be developed to better accommodate new actors within the framework of humanitarian law? And, most crucially, how can better compliance with IHL be ensured by non-State actors in armed conflict, who currently have little legal or practical incentive to do so?
I turn now to "new means and methods of warfare", which is the theme of the third workshop. There is no doubt that new technological developments will have an impact on future warfare. Recent conflicts have seen the increasing use of remotely controlled weapons or weapons systems – including so-called " drones " – and of automatic weapons or weapons systems. There is a possibility that in the future weapons systems may become fully autonomous. Automatic and autonomous weapons systems in particular raise certain concerns with regard to compliance with IHL. The current technological capacity to programme such weapons to distinguish combatants from civilians, and military objectives from civilian objects, as well as their ability to respect the principles of proportionality and the precautions required in attack are subject to debate.
It is not only types of weapons that are changing, but also the environments in which they are often used. The debate has been prompted in part by the growing number of military operations conducted in densely populated urban areas, often using explosive force delivered by heavy weapons, which can have devastating humanitarian consequences for civilian populations in such environments.
Another key issue is the increasingly asymmetric nature of modern armed conflicts. Differences between belligerents, especially in terms of technological and military capacities have become ever more pronounced. Compliance with the rules of IHL may be perceived as beneficial to one side of the conflict only, while detrimental to the other. At worst, a militarily weak party – faced with a much more powerful opponent – will contravene fundamental rules of IHL in an attempt to even out the imbalance. If one side systematically breaks the rule s, there is a risk that the situation quickly deteriorates into a free-for-all. Such a downward spiral would defy the fundamental purpose of IHL – to alleviate suffering in times of war. We must explore every avenue to prevent this from happening.
Compounding these challenges, civilians have in recent years become progressively more involved in activities closely related to actual combat. At the same time, combatants do not always distinguish themselves from civilians, neither wearing uniforms nor openly carrying arms. They mingle with the civilian population. Civilians are also used as human shields. To add to the confusion, in some conflicts, traditional military functions have been outsourced to private contractors or other civilians working for State armed forces or for organised armed groups. These trends are, if anything, likely to increase in the years ahead. As a result of this, civilians are more likely to be targeted – either mistakenly or arbitrarily. Military personnel are also at increased risk: since they cannot properly identify their adversary, they are vulnerable to attack by individuals who to all appearances are civilians.
IHL states that those involved in fighting must make a basic distinction between combatants on the one hand, who may be lawfully attacked, and civilians on the other hand, who are protected against attack unless and for such time as they directly participate in hostilities. The problem is that neither the Geneva Conventions nor their Additional Protocols spell out what precisely constitutes " direct participation in hostilities " .
In an effort to help remedy this situation, the ICRC issued a substantial guidance document in June this year. Without changing existing law, this document provides the ICRC's recommendations on how IHL relating to the notion of direct participation in hostilities should be interpreted in contemporary armed conflict. The aim is that these recommenda tions will enjoy practical application where it matters, in the midst of armed conflict, and better protect the victims of those conflicts.
But various crucial questions remain with regard to the conduct of hostilities. Are applicable IHL rules sufficient to identify under which circumstances explosive force delivered by heavy weapons might be used in densely populated areas, for example? Should a higher standard be required for the verification of targets and their surroundings or for the issuance of warnings to the civilian population? Perhaps further legal development is required, but if so, how can it feasibly be monitored and enforced?
I turn lastly to the issue of whether existing IHL implementing mechanisms are adapted to actual and new challenges. Allow me first to reiterate one incontrovertible fact. Despite the continuously evolving nature of armed conflict, the biggest threat or challenge to IHL remains the same. It is the too limited respect and compliance its rules and norms enjoy by parties to armed conflict all around the world.
As I remarked during the Ministerial Working Session organised by Switzerland in New York in September, the core reasons for lack of compliance with humanitarian law are lack of political will, lack of prevention and control, and lack of accountability.
It is clear that existing mechanisms provided for in the Geneva Conventions and the First Additional Protocol – namely the system of protecting powers, the formal enquiry procedure and the International Humanitarian Fact-Finding Commission – have not been effective, principally because they are subject to consent by the parties concerned. Several mechanisms within the UN system are also constrained by the fact that decisions are subject to political negotiations between governments. While there has been some progress towards strengthening accountability for violations of humanitarian law – not least throu gh the various international tribunals and the International Criminal Court – the prevailing culture still remains one of impunity.
It is hoped that participants in today's workshop will share ideas and suggestions on how to improve existing compliance mechanisms or even to create new ones; mechanisms that would in particular take account of the fact that IHL violations need to be stopped as they are happening, rather than after they have happened.
Yet we still come back to one simple truth: the overriding factor behind lack of compliance is lack of political will by both States and non-State armed groups. Without the requisite political will, even the most refined compliance mechanisms will be little more than empty vessels.
The fact that this message has been repeated tirelessly – certainly by the ICRC on a continuous basis – may explain why so much attention is currently being paid to the issue of compliance, at least in fora such as this one. This is of course very positive. All genuine initiatives undertaken by States parties to the Geneva Conventions towards strengthening compliance – including by those States not directly faced with compliance issues – must be warmly welcomed, at the very least as a manifestation of positive political will.
Ensuring improved compliance with IHL is something that concerns all of us here today, albeit in different ways. A wide range of actors including States and non-State actors, military forces, legislators and humanitarian organisations each have a particular role to play. The ICRC, for its part, can only contribute one part of what must be a concerted international effort towards achieving this aim.
On the sixtieth anniversary of the Geneva Conventions in August, I gave a speech to representatives of the High Contracting Partie s and other invitees, focusing on legal and humanitarian issues that the ICRC considers to be particular challenges – not just today but also in the years ahead. I also outlined what – and how – the ICRC stands ready to contribute in terms of guidance and advice in addressing those challenges.
I highlighted certain areas where the ICRC believes that humanitarian law needs to be clarified, for example related to the conduct of hostilities as I have already mentioned. There are other areas where humanitarian law may need to be developed, where there is either a lack of rules or where the rules are too broad or vague, leaving much to subjective interpretation. This arises particularly in situations of non-international armed conflict, where existing treaty law is at best limited. Conditions of detention and detainees'right of contact with the outside world are one such area. Procedural safeguards for people interned for security reasons are another. There are various others, including access to populations in need of humanitarian assistance, internal displacement of civilian populations and protection of the natural environment.
To address the humanitarian and legal challenges arising in these areas, the ICRC is now in the final stages of a two-year long comprehensive internal research study. This study aims firstly to explain in simple terms the whole range of aforementioned humanitarian concerns arising in non-international armed conflicts – including the challenge of improving compliance with the law by all parties to such conflicts. On the basis of this, its second aim is to evaluate the legal responses provided in existing law to these humanitarian concerns. Based on a comprehensive assessment of the conclusions of this research, a case will be made for the clarification or development of specific aspects of the law. In the months to come, the ICRC will decide on how to move forward, both substantively and procedurally.
Through such guidance, clarification and proposals for development, the ICRC hopes ultimately to make a meaningful contribution towards improving compliance with IHL. This is of course in parallel with the daily work of neutral and independent humanitarian action in the midst of armed conflict, speaking with both state and non-state armed groups, urging them to comply with the rules of IHL. This is where the issue of compliance has real urgency: when negotiating humanitarian access to wounded people on the other side of a front line, for example, or facilitating the evacuation of sick and wounded to a safe area.
In conclusion, let me reiterate that irrespective of any clarification or development that may be necessary in the future, we each have a responsibility and a role to play in ensuring that the Geneva Conventions, as well as the whole body of international humanitarian law, continue to stand the test of time. I urge States and non-State armed groups who are also bound by their provisions to turn legal provisions into meaningful reality, where it matters, in the midst of armed conflict, to better protect the victims of such conflict.