140th Anniversary of the 1868 St. Petersburg Declaration
Speech by Jakob Kellenberger, president of the ICRC, International Conference on IHL dedicated to the 140th Anniversary of the 1868 St. Petersburg Declaration, St. Petersburg, 24 November 2008
Ladies and Gentlemen
As co-chairman and co-organiser of this conference to mark the 140th anniversary of the St. Petersburg Declaration, I would like to thank the distinguished participants from the Russian Federation and from further afield for being here today, and to commend the positive commitment your presence demonstrates. I extend thanks to the Chairman of the Russian Federation for being with us, and for his words of support to the International Committee of the Red Cross (ICRC). This conference reaffirms the need – and I hope the desire – to keep the spirit of the St. Petersburg Declaration very much alive.
I would also like to express appreciation for the positive and productive relationship the ICRC has enjoyed with the Inter-Parliamentary Assembly of the CIS countries for more than 10 years now, most particularly since the signing of our cooperation agreement in 2004, which has contributed significantly to the promotion of international humanitarian law in the region. One aspect of this cooperation has been to develop model draft legislation for the implementation of IHL by CIS member States. The latest of these model laws relates to the protection of the rights of missing persons and their families, which will be considered for adoption by the Inter-Parliamentary Assembly tomorrow.
A quite remarkable man once wrote: " If the new and frightful weapons of destruction which are now at the disposal of nations seem destined to abridge the duration of future wars, it appears likely, on the other hand, that future battles will only become more and more murderous. "
You would be forgiven for thinki ng that these words referred to continuing advances in weapon technology, now, in the 21st century. However, these words were written in the 19th century, by a man called Henry Dunant, who observed and documented the horrific effects of munitions on soldiers at the Battle of Solferino in 1859. Dunant and four other Geneva citizens went on to establish the International Committee of the Red Cross and drew up the First Geneva Convention of 1864, aimed at protecting sick and wounded soldiers and those caring for them from attack.
Henry Dunant's warning about the possible humanitarian consequences of weapon development had resonance. Less than a decade later, the St. Petersburg Declaration was the first formal agreement prohibiting the use of certain weapons in war. The spirit of the Declaration – which helped lay the foundations of contemporary IHL – is as important today as it was 140 years ago. That said, this spirit is sometimes sorely tested – not least by the attitude of States towards cluster munitions that have caused undeniable human suffering in many recent conflicts. Inspired by the spirit of St. Petersburg Declaration, you will understand my strong hope that as many countries as possible will sign the Convention on the prohibition of cluster munitions when it opens for signature in Oslo on 3 December.
The principles established in St. Petersburg by this landmark international instrument remain relevant today, despite being threatened, or challenged, by the realities of contemporary armed conflict.
The significance of the Declaration goes far beyond its specific limitation on exploding bullets under 400 grams. It established the principles that the only legitimate objective of war should be to weaken the military forces of the enemy, and that the use of arms that uselessly aggravate the sufferings of disabled men, or render their death inevitable, is unjustified. These principles are at the heart of The Hague Con ventions of 1899 and 1907, and also the 1977 First Additional Protocol (to the Geneva Conventions), which prohibits means and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.
Today, these principles are clearly recognised as forming part of customary international law. This is applicable in situations of international and non-international armed conflicts, and is binding on all parties – be they governmental armed forces or non-State armed groups. This conclusion was confirmed in the ICRC's in-depth Study on Customary International Law, published in 2005.
These principles are also closely linked to the famous Martens'clause – named after the Russian delegate who proposed it at the 1899 Peace Conference and which was contained in the preamble to The Hague Convention of the same year. Martens'clause established that international humanitarian law could be based on customary as well as codified law. It provides protection from violations of IHL based on usages between civilised nations, the laws of humanity and – importantly – requirements of the public conscience.
The public conscience has in fact been an essential aspect of developing IHL in modern times. Martens'clause, together with the St. Petersburg principles, if I might call them that, are evident in various more recent treaties, such as the 1995 CCW Protocol prohibiting blinding laser weapons; the 1997 Anti-Personnel Mines Convention; and the new convention banning cluster munitions which will be opened for signature in Oslo next week.
Beyond establishing these fundamental principles, the spirit embodied in the St. Petersburg Declaration is also quite extraordinary in several ways, setting standards from which we can still learn today. First of all, it is worth noting that the Declaration was adopted by an independent, international military commission, not by a diplomatic conference . This highlights the fundamental responsibility and the essential role that the military can, and must, play in safeguarding the interests of humanity.
Indeed, the military commission clearly negotiated the Declaration with the notion of humanity uppermost in their minds. It is significant that the commission spoke not about finding the right balance between military interests and humanitarian concerns, as we may do today, but rather about that point at which the " necessities of war ought to yield to the requirements of humanity " . This is a fundamentally different concept, which it would be useful for us to revisit now, in 2008.
I remind you that the St. Petersburg Declaration prohibited a weapon that had not yet been used on the battlefield. It was enough to just imagine the horrific effects of exploding bullets on the human body to motivate States to sign the Declaration, recognising that a soldier should not suffer more serious injury than is necessary to put him or her out of action.
The spirit of St. Petersburg to which I refer is also evident in that the initiative to prohibit these bullets came from the very State that had developed them.
Excellencies. Ladies and gentlemen. The people who drew up the St. Petersburg Declaration did something that none of us should lose sight of. They drew a line in the sand with respect to means and methods of warfare; a line which, if transgressed, would eliminate any notion of humanity in the waging of war. The ICRC has engaged and always will engage in lively dialogue with States, including the most powerful ones, about where this line in the sand should be drawn. What we cannot accept is the proposition that humanitarian considerations have no place in a dialogue about where the line is drawn, or worse, that there should be no line at all. The waging of war has never been – and never should be – an excuse for unrestrained bloodshed.
Of course, even when the line in the sand has been drawn, and the limits to means and methods of warfare agreed upon, ensuring that relevant international humanitarian law treaties and norms are integrated into national legislation, and complied with, is a major challenge. One might reasonably ask what good is a set of highly developed rules of IHL, many of which enjoy universal acceptance, if those rules are repeatedly violated in armed conflicts around the world?
The ICRC is convinced that existing rules of IHL do provide an adequate legal framework for the necessary restraints to limit human suffering in armed conflict. This is not to say that there is no scope or need to develop and adapt humanitarian law to new situations. The new convention on cluster munitions that I mentioned earlier – and for which the ICRC has been one of the leading advocates – is just one example of the dynamism of IHL.
Indeed, there are some key notions of IHL that need to be clarified, and specific areas requiring more detailed norms for the protection of persons affected by armed conflicts. Procedural safeguards for security detainees and judicial guarantees are two such areas.
The notion of direct participation in hostilities, which determines under which circumstances civilians lose protection from direct attack under IHL, is another example. The need for clarification here is not intended as an academic exercise but has a very practical dimension. The ICRC has carried out an expert process on the interpretation of this concept, and will make its findings known in the near future. The institution is also in the process of assessing whether there is a need for further clarification or strengthening of the law governing non-international armed conflicts. This is due to the fact the majority of contemporary armed conflicts are not of an international character, and because of the specific challenges facing the application and resp ect of IHL in such situations.
However, it is still fair to repeat that the main problem is not inadequate law, but rather insufficient political will to implement the law.
Clearly, it is the primary responsibility of parties to an armed conflict to respect and ensure respect of IHL. This is spelled out in the 1949 Geneva Conventions and their common Article 1. At the same time, this responsibility brings with it the obligation on States to adopt a range of appropriate legislative, administrative and practical measures. Proper training and command supervision within the armed forces, implementing prohibitions or restrictions on certain means of warfare, and putting in place mechanisms and procedures to assess the conformity of new or existing weapons with IHL are essential illustrations of those obligations.
Undeniable progress has been made. Whereas accountability may once have been the exception rather than the rule in armed conflict, this trend has slowly but steadily been changing thanks largely to a growing public awareness of IHL. It was public pressure – and the collective shame of governments in failing to stop the bloodshed in the former Yugoslavia and Rwanda – that resulted in the establishment of the two ad-hoc criminal tribunals for those countries in the early 1990s. Despite their constraints, the tribunals represented a major step forward in ending the impunity of war criminals and paved the way for the establishment in 2002 of the International Criminal Court – the world's first permanent court with jurisdiction over the gravest international crimes: genocide, crimes against humanity and war crimes.
It was also frustration with experiences in the former Yugoslavia and Rwanda, among others, that contributed to the development of the concept of responsibility to protect, or R2P, which was endorsed by the UN World Summit in 2005 and referred to by the UN Security Council. This principle reiterates the enduring and primary responsibility of a State to protect its population - whether citizens or not - from genocide, war crimes, ethnic cleansing and crimes against humanity. It also asserts the secondary responsibility of the international community to respond in a timely and decisive manner when a State manifestly fails to provide such protection. However, the concept is still subject to certain tensions, not least with regard to the issue of State sovereignty. It therefore remains to be seen how the applicability and implementation of the R2P will develop in the near future, an issue that the ICRC will follow very closely.
On a national level too, legislators and courts are finally starting to live up to their obligations of ensuring that domestic law recognises the criminal responsibility of those who violate IHL, including its prohibitions on weapons of a nature to causing unnecessary suffering or superfluous injury, and of actually enforcing such legislation. The message is clear: war criminals and those who order the commission of such crimes can no longer take impunity for granted.
But there is still a long way to go. Compliance and implementation of IHL at both national and international levels is still far from sufficient. Sadly, parties to conflict have in many cases not yet come to the realisation that it is in their own best interests to apply and enforce these legal restraints. If wars have no limits, those who carry out abuse could just as easily become victims of abuse themselves, and vice versa.
Excellencies, Ladies and Gentlemen. We are living in an age of fantastic scientific advances. The fields of chemistry, directed energy, nanotechnology and biotechnology – to name but a few – are constantly developing. These advances, if applied to weapons, can give arms bearers unprecedented power to inflict new and more severe types of injury on more people. Some, if not carefully monitored and responsibly used for the benefit of humanity, may even escape our control. It is the challenge and the responsibility of all of us here today, as well as of all States and armed forces, to revive the spirit of St. Petersburg. Public conscience can – and must – demand it. In so doing, we will help to ensure that the St. Petersburg Declaration will continue to be as much a beacon of humanity in the 21st century as it was 140 years ago.