Ensuring respect for international humanitarian law in a changing environment and the role of the United Nations
60th Anniversary of the Geneva Conventions – Ministerial Working Session, 26 September 2009, address by Dr Jakob Kellenberger, President of the ICRC.
Madame la Conseillère Fédérale,
Ladies and Gentlemen,
The questions posed to us on this panel stem from one sad finding: Sixty years after the adoption of the Geneva Conventions, massive violations of international humanitarian law continue to be committed every day against victims of armed conflicts.
What are the causes for the lack of compliance with humanitarian law? They are: lack of political will, lack of prevention and control, and lack of accountability. Today, the price to pay for violating even the most fundamental rules of war is very low – for States, for armed groups, and for individuals.
Take the example of the Mine Ban Treaty of 1998. About ten years after its adoption, it is ratified by 156 States. And the mine ban is observed not only by the States parties, but also by other States, because it is simply not acceptable anymore to use anti-personnel mines. Similarly, consi der the rather successful chemical weapons convention. I am confident that the recently adopted Convention against cluster munitions will have similar success. One of the reasons is that these treaties are very limited in scope, and that a clear ban on a weapon is relatively simple to monitor. Also, once the negotiations are concluded, the States parties have effectively already decided to comply with these very limited prohibitions.
In terms of mechanisms, the developments of international criminal tribunals, and particularly of the International Criminal Court, contribute to raise the price for individuals who commit serious violations.
The weapons treaties just mentioned have shown that precise substantive rules have, in many cases, resulted in good compliance. But it is not possible to have such clear rules to regulate all of humanitarian law. Many rules must be broader and more flexible to be relevant for a large number of different conflict situations around the world, and to stand the test of time. Ultimately, in certain matters, States will not agree to be bound by tighter rules which give them less discretion in fighting their wars. While there can still be clarifications and even improvement in the rules, we must acknowledge that in many areas States will preserve for themselves a certain margin of interpretation – which also means a margin for disagreement on implementation and compliance.
But the contrast between the success stories and the failures in so many other areas of humanitarian law shows us another thing: that where there is a will, there is a way. And the single most important reason for ongoing, unpunished violations in so many conflicts is lack of political will on the part of States, and on the part of non-State armed groups. Political will is and remains a decisive factor with whatever compliance mechanism we could invent - within the Geneva Conventions, in the UN system, in regional systems or anywhere else. Thus, before we start talking about how to improve compliance with IHL, let us be very clear: while lack of compliance of non-State armed groups is also a very serious problem that we need to address, reinforcement of international law rules and mechanisms lies in the hands of States.
Ladies and Gentlemen,
How can we improve the existing compliance mechanisms foreseen by the Geneva Conventions and their Additional Protocols?
Experts consulted by the ICRC in 2003 found that one of the main weaknesses of the IHL mechanisms – be it the system of protecting powers, the ad hoc enquiry procedures, or the Fact-Finding Commission foreseen in Article 90 of Additional Protocol I – is that they can only be functional with the agreement of the parties. While Article 90 of the First Additional Protocol of 1977 foresees the possibility for States to accept the ipso facto competence of the Fact-Finding Commission, only 70 States have done so. Given the Commission has not been active since its inception, despite its confidential working method, it is difficult to be optimistic about the chances of a stronger mechanism. To improve IHL compliance mechanisms, they would likely have to be mandatory and not dependent on the agreement of parties once a conflict has broken out.
Our topic today is ensuring respect for IHL in a changing environment. The combined impact of global mega trends relevant to conflict is part of the changing environment. Happily, these trends do not combine too often at the same time and at the same place. Part of this changing environment is no doubt the increasingly important role played by non-State armed groups in non-international armed conflicts and the humanitarian consequences of their behaviour. To get better compliance with IHL by these groups is a major challenge. The challenge is greater as there are not many incentives for those groups to respect the rules of international humanitarian law. At a minimum, it is important not to create disincentives and not to approach these groups as if all of them were insensitive to the rules of IHL. The ICRC's experience is that there is diversity among States as there is diversity among non-State actors. In any event, to get better compliance with IHL, the ICRC needs to talk to non-State armed groups and that is what we do, worldwide.
Common Article 3 to the Geneva Conventions envisages agreements between States and armed groups, and these can sometimes achieve better accountability. Armed groups should also be encouraged to issue and deposit unilateral declarations of their commitment to comply with IHL, as well as to adopt internal codes of conduct on respect for IHL. In all cases, individuals who commit crimes should be held accountable.
Yet we know, of course, that although these avenues are sometimes useful, they are insufficient in themselves to substantially improve compliance with IHL.
When taking a look at IHL implementation mechanisms, it is important to bear in mind that those explicitly foreseen by the Geneva Conventions and the humanitarian law system have never been the only ones used to ensure that victims of armed conflicts are protected against violations.
The UN system has always played a role in monitoring and controlling the behaviour of parties to armed conflicts. The General Assembly, the Security Council, the former Commission on Human Rights, and now the Human Rights Council, are constantly monitoring armed conflict situations around the world. Political processes in such bodies can take an infinite variety of forms – thematic resolutions on certain legal aspects, such as the General Assembly resolutions on the Additional Protocols; establishing observation or fact-finding missions; den ouncing violations; imposing economic sanctions and establishing peace missions with mandates to protect the civilian population. There are often elements of independent investigation and analysis, for instance by experts or commissions of enquiry - either thematically, or situation-specific. However, once the report is back in the intergovernmental realm, decisions become, again, subject to political negotiation.
Political pressure is an essential means of ensuring change in the behaviour of States and armed groups, including respect for humanitarian law. And indeed, it has always been the view of the ICRC that all States have an obligation not only to respect, but also to ensure respect for international humanitarian law, as stated in common Article 1 of the Geneva Conventions. One way of doing so is through diplomatic means, whether through quiet diplomacy or in the intergovernmental bodies just mentioned.
Political processes have, however, shown and show their limitations. When looking at these processes to provide alternatives to the weak humanitarian law mechanisms, we must ask whether the decisions of UN intergovernmental bodies have truly led to better compliance with humanitarian law, including by ar med groups. It would be extremely difficult to verify this. But we know that despite many decisions concerning situations of armed conflict, violations have often continued.
Secondly, intergovernmental bodies will invariably scrutinize some States more than others, so that their decisions are inevitably vulnerable to criticism of bias. From the point of view of humanitarian law, this is of course problematic. This may be the reason why humanitarian law foresees mainly non-political compliance mechanisms. It focuses on practical mechanisms – especially the activities of neutral and impartial humanitarian organizations – that are meant to provide prompt access to and relief for the victims of armed conflicts. Thus, while stressing again that action through UN bodies is a way for States to live up to their duty to ensure respect for humanitarian law, we need to also look beyond these. The challenge is creating stronger compliance mechanisms that are better tailored to the body of law that humanitarian law represents.
Typically, such independent mechanisms take the form of judicial bodies or of independent expert bodies. At the national level, for instance, victims of humanitarian law violations do at times, in some countries, have the possibility of bringing cases to court. At the international level, the International Court of Justice does not hesitate to apply international humanitarian law when it is seized of a matter concerning an armed conflict. The regional human rights courts – the American and European courts of human rights – have also adjudicated numerous cases brought by victims of armed conflicts. While their decisions are based on human rights law and not on humanitarian law, these courts have sometimes been able to provide real relief to victims, in the form of justice, truth and reparations. Another rather successful independent mechanism is the Inter-American Commission on Human Rights, which frequently monitors situations of armed con flict and pronounces itself on legal questions of humanitarian law.
Of course, neither the International Court of Justice nor the regional human rights courts or commissions could ever replace a universal independent compliance mechanism for humanitarian law. Indeed, the regional courts are limited to certain geographic areas. Their decisions are based on the human rights conventions that they are mandated to monitor, not on humanitarian law. They have no jurisdiction over armed groups. The International Court of Justice also has relatively limited jurisdiction, and is not accessible to victims directly. It cannot replace a system which would guarantee them a direct remedy.
Over the years, there have been many suggestions on new compliance mechanisms. At the time of drafting of the Geneva Conventions, France had proposed a " High International Committee " . Twenty years later, the Secretary-General of the United Nations suggested a " general observer " or " general commissioner " to supervise asylum or refuge for civilians fleeing conflict. During the drafting of the Additional Protocols, the ICRC proposed several avenues, for instance by relying on the role of international organizations or by creating an ad hoc Commission. In 1993, the ICRC suggested a mechanism for victims of humanitarian law violations to have access to reparation. In 2003, as mentioned above, the ICRC led wide expert consultations on improving compliance. Many creative suggestions were made at these consultations: an IHL commission, ad hoc reporting, an individual complaints mechanism, a committee with quasi-judicial power, and so on.
Significantly, one of the outcomes of the thinking about compliance appears to be that any new proposed mechanism ought to be neutral and impartial, ought to have sufficient power over States, and ought to be able to act independently of State initiative or acceptance.
Existing compliance mechanisms are weak and have not been used very often for the reasons I mentioned. The creation of more efficient compliance mechanisms – ideally a universal, independent mechanism would, at best, take time, considerable time. In the meantime, let us not forget that the diverse existing mechanisms are complementary - action on several levels is possible and necessary.
Finally, there is one important factor too easily forgotten. This is the contribution made by independent and neutral humanitarian actors on the ground, in the reality of armed conflicts. I speak here of dialogue with armed actors to insist on compliance with the rules of international humanitarian law. This dialogue may often be more convincing than general messages from a safe distance. So: access is also essential in the struggle for better compliance with international humanitarian law. Calls for respect for IHL are all the more promising when they are accompanied by concrete relief activities instead of declarations of intention.
An international body of experts cannot replace a humanitarian organization on the ground that tries to protect and assist, as best as it can, the populations affected by armed conflict. An international resolution cannot replace a field hospital. Criminal trials cannot replace repeated visits to detention centres, register detainees, follow-up on their whereabouts and well-being, or ensure contact with their families.
In conclusion, renewed action by States to facilitate the work of independent and impartial humanitarian organizations such as the ICRC will be as important in ensuring compliance with humanitarian law as the establishment of new compliance mechanisms. While we think - and must think - about the latter, let us not forget the former.