International humanitarian law: its relevance in contemporary conflict
Annual lecture, SOAS, University of London, address by Angelo Gnaedinger, director-general of the International Committee of the Red Cross
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Director Webley, Dr Plesch, Excellencies, Ladies and Gentlemen,
Thank you very much for the invitation to deliver the annual lecture at the Centre for International Studies and Diplomacy at SOAS. It is a great honour and a pleasure for me to be here with you today and to be able to share a few of my thoughts on the challenges today to international humanitarian law, or the law of war as it is also known.
I will first give you our reading of the changing face of war and conflict in recent times and try to identify the specific characteristics of the conflict environment today. Afterwards, I will focus on five current challenges to international humanitarian law that keep us busy and – sometimes - awake at night. I shall be considering them under the following headings:
creating the political will necessary to prevent violations of humanitarian law,
the fragmentation of non-State armed groups,
the rapid development of private military and security companies,
the necessity of limiting or outlawing the use of certain weapons, and finally,
the challenge to humanitarian law that the fight against terrorism presents.
It is my hope that you will leave this room tonight with a better understanding of the International Committee of the Red Cross and its approach to conflict in our time.
Our reading of contemporary conflict
Over the years, a number of thinkers have been predicting that wars and conflicts will become things of the past. It was argued at the end of the 19th century that the destructive potential of modern armaments, the economic interdependence of countries and the nature of modern societies had made the prosecution of war among the powers of the day an economic impossibility.
This was quickly shown to have been wishful thinking: during the First World War the full might and ingenuity of the industrialized world was used to destroy millions of lives. In Germany in 1918, the hopeful slogan " Nie wieder Krieg! ” echoed throughout the land. But, shortly afterwards, it was succeeded by Adolf Hitler’s fateful call for " Total War. " Laudable efforts to outlaw wars, through the United Nations, were even more short-lived: the Korean War inaugurated the period of the Cold War – a 40-year war that was not cold at all for millions of people. During all that time not one day passed without the incidence of armed conflict somewhere in the world, as global disputes - strategic, and ideological – continuously kindled local and regional conflicts.
The end of the Cold War, as manifested by the fall of the Berlin Wall, created euphoric hopes that a " New World Order " would bring peace to the world.
There were those who dreamt of the " end of history. " But the Iraqi invasion and occupation of Kuwait in August 1990 and the Gulf War that followed quickly shattered this illusion. In fact, the 1990s turned out to be a disorderly and bloody decade: The disintegration of the Soviet Union and of the former Yugoslavia gave birth to a series of complex and sometimes brutal conflicts over national identity, territory and ethnicity. Almost 20 years later, some of these conflicts still linger on.
In the developing world, meanwhile, many States that had received massive amounts of support from the two superpowers and their allies during the Cold War were left to fend for themselves after 1989. While such shock therapy might have contributed to the growth of self-reliance in Asian and Latin American countries, it had disastrous consequences elsewhere: not only in Africa, but also in other parts of the world such as Afghanistan. Deprived of external economic aid, these failed and impoverished States became increasingly chaotic.
Moreover, the dynamics of a deregulated, globalised market economy transformed some of these States into political constructs ruled by warlords who controlled the market and the extraction of natural resources, for no purpose other than to fortify their personal power base. The modern warlord, waging war with his privately owned and privately financed militia, does not bother to make any ideological claims of serving the people. Most areas of conflict have been flooded with small arms, which are cheap and easy to use. As a result, the cost of waging war has fallen sharply over the last 15 years. The proceeds from the sale of such commodities as diamonds or drugs were often sufficient to sustain a warlord and his " privatized war. " In the early 90s, Somalia was the first country to disintegrate in this way. Millions of Somalis have had to pay for it with the loss of their livelihood and, very often, their lives. In Somalia, as in many other countries drawn into conflict during this past decade, the chaotic fragmentation of the State and its monopoly in the use of force has greatly undermined universally recognized standards of international humanitarian law.
By far the most dreadful violations of IHL committed during the 1990s were caused by ethnic hatred and climaxed in the Rwandan genocide of 1994 and the Srebrenica massacre of 1995 in Bosnia.
Thus, as the end of the 20th century drew near, all remaining hopes for a conflict-free world had been definitely extinguished.
In the new millennium, the horrifying attacks of 11 September 2001 triggered a fight against terrorism at a global scale. This struggle, in which the world's single most powerful State and its allies confront a transnational network of almost invisible non-State armed groups, is still in progress, almost seven years after 9/11. It is an asymmetric confrontation – not only because of the differing characteristics of the parties involved, but also because their objectives and their ways of operating are so fundamentally different. While this fight is being acted out as armed conflicts in Afghanistan and in Iraq, many other parts of the world have been affected by it in different ways. A number of local conflicts, from the Maghreb through the Horn of Africa to the Middle East and Asia, have become entangled in it.
Taking a look at today's conflicts around the world, we see that inter-State wars, though greatly reduced in number, are being replaced by a wide range of highly complex and drawn-out internal conflicts of low intensity. In many cases, overlapping dissensions - local, regional, and global – are at work. The motives and grievances driving these conflicts are manifold and socio-economic factors continue to be vitally important. The sudden upsurge of violence in many countries following the recent explosion of food prices has provided renewed emphasis of the fact. Competition for access to critical natural resources, various forms of predatory economic behaviour, and social imbalances are all potent causes for conflict, particularly in weak States where public-sector services such as health, water supply, and social welfare have collapsed. Most current conflicts tend to be long, drawn-out, and chronic in nature, their intensity eb bing and flowing. But as they drag on, even low-intensity conflicts have a far-reaching impact on civilians. There are direct consequences: numbers of people are uprooted and displaced, killed, injured, detained, separated from their families, or go missing. And there are indirect consequences as well: for example, people in need of medical care die because the health services have collapsed.
One of the most distinctive features of contemporary conflict is the interconnectedness of many of these factors. Indeed, globalization, particularly the globalized media environment, creates links between sources of conflict. Let us consider for a moment the recent food riots that erupted in a number of countries: these were by no means events that occurred independently of each other. They are a product of the compounded effects of rising oil prices, increasing demand, the world-wide financial crisis, and of the global media coverage that allows people everywhere to be informed of what is happening elsewhere in the world. The result is that social unrest sometimes spirals out of control. If, in addition, transnational groups take advantage of a people’s feelings of injury, conditions are primed for violence to erupt or for the breaking out of conflict. The food riots are also an early warning to look at the potential humanitarian consequences of climate change.
So, what should we expect in the future? Well, the good news, I believe, is that we have reason to hope that large-scale inter-State wars will be avoided, thanks to improved political cooperation at the global level. At the same time, we need to prepare for more uncertainty and more turbulence in large parts of the world. Volatile local and regional conflicts, involving highly fragmented actors, will continue to affect millions of people. And that will feed into the fight against terrorism. Governments will also make ever more use of private military and security companies to supplement their own security forces.
The role of the ICRC in contemporary conflict
The ICRC will do its best to remain operational in all the conflict spots around the world, trying to ensure that the millions of people caught up in the fighting and turmoil will not be deprived of their dignity, their means of sustenance, and the services essential to their well-being. We will continue to work hard to ensure that the standards of the law of war are respected by all, especially with regard to the conduct of hostilities and the treatment of detainees held in connection with a conflict. This is the raison d'être of the ICRC, which is active today in over
80 countries and has a staff in excess of 12,000 persons. Currently, our largest field operation is Darfur in Sudan, followed closely by Iraq, Afghanistan, and the occupied Palestinian territories.
Ladies and Gentlemen,
I am sure you know that the uniqueness of the ICRC lies in the visionary idea of its founder, Henry Dunant, to combine direct humanitarian action for victims of armed conflict with a sustained effort to develop and promote a universal and binding legal framework regulating the conduct of hostilities and the protection of persons in order to limit human suffering in war. Our role is therefore to remind the parties to an armed conflict – both States and organized armed groups - of their obligations under humanitarian law and to urge them to fulfil those obligations. The promotion and strengthening of respect for international humanitarian law have been among the core activities of the ICRC since its establishment in 1863 and the adoption of the original Geneva Convention in 1864. Over time, an impressive body of humanitarian law has been developed, the key elements of which have been ratified by virtually every State.
After World War I, a Protocol outlawing chemical weapons was signed and a p roper Convention on the Protection of Prisoners of War negotiated; after World War II, a comprehensive Convention on the Protection of Civilians, including during occupation by belligerents, was adopted.
Still, traditionally, international humanitarian law was considered a specialist’s field; the practical importance of its application has received public attention only over the past decade or so. In our view, this is a welcome development. It may be fairly said that contemporary public interest in humanitarian law began with the wars in the former Yugoslavia and the genocide in Rwanda. Complex legal and humanitarian issues related to the fight against terrorism have spurred further public interest.
We have had to conclude that the world will unfortunately experience more armed conflict in the future; this only confirms the relevance of ius in bello , as we also call humanitarian law, in today's world, and fortifies our resolve to work to further strengthen its relevance to belligerents and affected populations.
Five current challenges to implement international humanitarian law
What then, you may ask, are the major challenges to humanitarian law in contemporary conflict? I shall briefly outline four of them and then explore a fifth in somewhat greater detail:
1. Mobilizing the political will to prevent violations of international humanitarian law
The most important current challenge is the lack of political will of belligerent parties to respect IHL. The serious violations of humanitarian law that occurred during the wars in Yugoslavia, Rwanda, and elsewhere mobilized public opinion to find new ways for the international community to put an end to such violations. Non-governmental advocacy groups lobbied for more decisive ac tion at the international level, while the ICRC, along with them, supported the creation of an International Criminal Court that would put an end to impunity and make humanitarian law more effective. The ICRC also reminded governments that through the Geneva Conventions of 1949 and their Additional Protocol I they had contracted a collective responsibility " to ensure respect for these Conventions under all circumstances " (Article 1 common to the four Geneva Conventions) and " in situations of serious violations…to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter " (Article 89, Additional Protocol I). Over the past 10 years considerable progress has been achieved in this respect, but much more needs to be done. Although more
UN peace-keeping missions are deployed in trouble spots, and although some of them are robust enough to have a direct protective impact on the civilian population, the ambitions of many missions are not adequately supported by the necessary resources, material and human. Politically, the development of the " Responsibility to Protect " concept and its adoption at a UN summit of world leaders in 2005 was a significant step forward. The Secretary-General now keeps the
UN Security Council abreast of the latest developments regarding the situation of the civilian population in armed conflicts throughout the world. However, being informed and having a principled concept in place have not yet resulted in the political action necessary to effectively stop all serious violations of humanitarian law.
2. The fragmentation of non-State armed groups
When the ICRC started its operations in Darfur four years ago, our delegates had to deal with two rebel groups fighting against the government of Sudan. Today there are some 20 distinct factions of militarized non-State ac tors with whom we have to establish contact in order to operate – with a minimum of security guarantees – and on whom we have to impress the fact of their responsibility for the civilian population. The same phenomenon of proliferation and fragmentation of armed non-State groups is apparent elsewhere. We therefore need to devise innovative strategies to reach out to all of them in order to convince them that it is in their interests to uphold the basic tenets of humanitarian law.
3. The rapid development of private military and security companies.
The growing significance of private military and security companies, as demonstrated by the extraordinary number of such companies operating in Iraq, is, equally, a challenge to the application of international humanitarian law. While Iraq is probably an exceptional situation and may not recur in the same manner elsewhere, it is clear that States – but also multinational coalitions, peace-keeping troops, or organizations like NATO - will resort to private actors for support for their operations. Whilst the personnel of private military and security companies are bound by international humanitarian law, like any other actor in an armed conflict, few States have regulated their activities, by setting out, for instance, clear standards of conduct in contracts. There also exists a gap in criminal accountability. All this has created a general concern that some companies may employ personnel who have previously committed violations of humanitarian law or are untrained for their task. Within the framework of an initiative sponsored by the Swiss government, the ICRC is now working with government experts from 18 countries to develop good practices for contracting States, i.e. those that contract such companies, for territorial States, i.e. those on whose territories these companies will operate, as well as for home States where such companies are registered. Through this initiative we want to reaffirm that the law applies to these actors and to increase the practical relevance of humanitarian law in this extremely critical sector.
4. The legality of specific weapons or of their use under certain circumstances
Shocked by the devastating impact that the use of poisonous gas had during World War I, the ICRC actively lobbied for the creation of an international treaty that would outlaw such weapons. Indeed, looking back from a distance of almost a century, we feel that the 1925 Protocol on chemical weapons has been a key element in preventing the spread of such weapons and their use in more recent armed conflict. Yes, there were exceptions. I was myself on an ICRC mission in Iraq when, in the border town of Halabja, thousands of people perished in a chemical attack. Still, we are convinced that the universal consensus on the need to outlaw the use of such weapons, as confirmed in the 1993 Chemical Weapons Convention, was instrumental in potentially saving millions of lives.
The ICRC is no less concerned today about the potential use of all weapons of mass destruction: nuclear, radiological, biological or chemical. We are equally concerned about the humanitarian impact of certain conventional weapons.
As a result of its familiarity with the devastating and indiscriminate effects of land-mines long after the end of hostilities, the ICRC has been a vigorous advocate of the Ottawa treaty on anti-personnel mines. Now, we urge States to conclude a new treaty that will ban inaccurate and unreliable cluster munitions. Each of these weapons can contain up to 644 individual sub-munitions or " bomblets " that are generally designed to explode on impact. In reality, a high percentage fail to explode as intended. Credible estimates of the failure rate of cluster munitions put it at anywhere from ten to forty percent. Some countries – Laos, for in stance - are still contaminated by an enormous amount of unexploded cluster sub-munitions several decades after the end of war.
5. International humanitarian law and the struggle against terrorism
The increase in the attention being paid to humanitarian law in recent times is the result mainly of the struggle against terrorism. The horrifying attacks of 11 September 2001 and the response to them have raised questions about the efficacy of international humanitarian law in dealing with contemporary forms of violence, and in particular terrorism. It has been asked whether humanitarian law was actually capable of addressing " terrorism. "
To answer this question we must first clarify how different bodies of law relate to the term " terrorism " : although a comprehensive definition at the international level does not exist, terrorist acts are well-defined under domestic law and under existing international and regional conventions on terrorism and may, provided the requisite criteria are met, qualify as war crimes or as crimes against humanity. It is a basic principle of international humanitarian law that persons engaged in armed conflict must at all times distinguish between civilians and combatants and between civilian objects and military objectives. International humanitarian law also includes specific rules such as the prohibition against deliberate or direct attacks against civilians and civilian objects, against indiscriminate attacks and the use of “human shields”. The taking of hostages is also prohibited. Let me also remind you that international humanitarian law specifically prohibits “measures of terrorism” and “acts of terrorism” against persons in the power of a party to the conflict.
This important point should be understood: unlike some other areas of international law, " terrorism " is well regulated under international humanitarian law , which explicitly prohibits acts committed against civilians and civilian objects in armed conflict that would commonly be considered " terrorist " if committed in peacetime.
In this context I would like to mention the growing and, to us, worrying tendency of States to label as “terrorists” all organized armed groups that oppose State authorities in non-international armed conflicts. This trend to criminalize the enemy himself and not just the specific acts he may carry out goes against the need to differentiate between lawful acts of war in non-international armed conflicts and acts of terrorism. While acts of violence against military objectives in internal armed conflicts remain subject to domestic criminal law, the tendency to also designate them as “terrorist” under international law, risks undermining whatever little incentive armed groups have to respect international humanitarian law.
This leads me to my next observation, on the legal definition of what some have called the " war against terrorism. " The term has become very much a part of daily parlance, and makes the raising of this question necessary: is this " war " an armed conflict in the legal sense, as set out under humanitarian law? The answer is: no. In the struggle against terrorism the governments involved use various political, legal and security measures such as gathering and sharing intelligence, freezing financial assets, establishing new security requirements, or cooperating more closely with one another in the field of criminal prosecution. These means do not generally involve armed violence and certainly do not justify any reference to the law of war. However, the struggle against terrorism can sometimes be conducted by means of armed conflict. A case in point is the war in Afghanistan, which began in 2001. In such a case the legal framework is as clear as in any other armed conflict: humanitarian law is applicable.
However, the fact that the struggle against terrorism does sometimes take the form of armed conflict does not imply that the law regards all acts of terrorism carried out in various parts of the world – the bombings in London, Glasgow, Madrid, Bali, Istanbul, or Casablanca – as belonging to the same armed conflict. It seems dubious to attribute these several acts to one identifiable party to armed conflict (as understood under international humanitarian law) or to claim that the level of violence reached in each instance is such as to qualify it to be regarded as armed conflict.
The case-by-case approach that we follow in determining whether a given situation is to be defined as armed conflict has some bearing on the issue of the legal status of persons detained in connection with the struggle against terrorism. In situations of international armed conflict, enemy combatants, who are members of government armed forces, may be held as prisoners of war until the end of hostilities. Moreover, in all situations of armed conflict, international or not, civilians directly participating in hostilities - some would like to call them " unlawful combatants " - or involved in other activities that " represent an imperative threat to the security " of the government concerned, may be interned with, of course, the application of the relevant procedural guarantees.
In conclusion, we hold that each situation of organized armed violence must be examined in the specific context in which it takes place in order to establish on the basis of facts whether it qualifies legally as war. The laws of war were evolved to tackle situations of armed conflict, both legally and practically. One should always remember that the provisions of humanitarian law, on what constitutes lawful taking of life and on detention in armed conflict, allow for more flexibility than the rules applicable in non-conflict situations governed by other bodies of law, such as human rights law. In other words, it is both unnecessary and dangerous to apply in ternational humanitarian law to situations that do not amount to war. This is not always fully appreciated.
This being said, I am not suggesting that there is no need for further clarification or development of international humanitarian law.
Ladies and Gentlemen,
I am aware that I have barely touched on the subject, but I hope that we can explore some of these crucial issues during our discussion. I thank you for your kind attention.