Several years of research and consultations around
the world have led to a new resolution and a new mandate
for strengthening humanitarian law.
Just ten years ago, in the wake of the 11 September attacks,
many key figures in what has become known as the ‘war
on terror’ questioned the validity of the Geneva Conventions.
They asked whether, when facing groups like al-Qaeda, the
original standards of the Conventions were truly applicable,
or indeed necessary.
Within the ICRC and other humanitarian groups, there was
great concern that some of the basic tenets of the conventions
were in danger of being undermined and that people in very
vulnerable situations would lose essential protections. The
time was not right, therefore, to open a debate on how the
Geneva Conventions and the Additional Protocols might be
improved.
“The feeling then”, remembers Philip Spoerri,
director of international law at the ICRC, “was, don’t
touch them… Our lawyers’ advice was that most
of the laws have passed the test of time, and all the basic
principles are there.” The ICRC argued that international
humanitarian law (IHL) was still relevant and sufficient
to cover the fight against terrorism for as long as it actually
amounted to an armed conflict.
Filling the gaps
But times have changed. In the last few years, there has
been a growing concern that in modern conflicts, most of
which are non-international, there are gaps in IHL — areas
where the law needs to offer states and other parties to
conflict more guidance on what to do (or not do) in the
field. And there is continuing concern that, in general,
the existing body of IHL is not being fully implemented.
Although there is general agreement that IHL is indeed still
relevant and should not be weakened or diluted, many legal
experts feel the time is right to fill the gaps as well as
improve compliance with the laws that already exist.
To recognize the gaps more precisely and prioritize areas
where states are potentially ready to agree on new law, the
ICRC carried out an intensive study that identified a range
of issues. After subsequent consultations with states, a
consensus began to develop around two issues: detention (particularly
in non-international conflicts) and implementation of IHL.
At the 31st International Conference in Geneva in November
2011, the preparations paid off. After lengthy discussion,
in which 84 statements were made on the conference floor,
states parties to the Geneva Conventions agreed on a resolution
that essentially gives the ICRC the green light to engage
with states on a wide range of issues (including detention
and implementation, which are alluded to in the resolution),
then report back by the 32nd International Conference in
2015.
The resolution’s operative language — the part
that outlines future action — does not recommend any
specific changes to IHL. Rather, it simply “invites
the ICRC to pursue further research, consultation and discussion
in cooperation with States” as well as other actors
in order to “ensure that international humanitarian
law remains practical and relevant in providing legal protection
to all persons deprived of their liberty in relation to armed
conflict”.
The resolution also asks the ICRC to work with states to
find ways to “enhance and ensure the effectiveness
of mechanisms of compliance with international humanitarian
law”.
“The language is quite general,” says ICRC President
Jakob Kellenberger. “But the wording is in fact very
good because it gives us the political backing to go forward
and discuss with governments concrete improvements to IHL.”
In the meantime, states also adopted a 4-Year Action Plan
for the Implementation of IHL, in which they agreed to work
towards enhancing access by civilians to humanitarian assistance
in armed conflicts, protecting children, women and people
with disabilities, improving protection of journalists, criminalizing
violations of IHL in domestic law and limiting transfers
of arms if they might be used to commit violations of IHL,
among other things.
Already, some options for achieving this are being mentioned:
for example, ‘soft law’ or ‘best practice’ guidelines
that states can adopt without needing first to agree to changes
in treaty law. If they are seen to be successful, they could
then perhaps be codified into IHL.
Debate over the thorny question of how to ensure that states,
armies or other state security forces and non-state armed
groups comply with IHL also continues. While there are bodies
designed to monitor compliance with IHL, such as the International
Humanitarian Fact-Finding Commission (IHFFC), there is a
general feeling within the Red Cross Red Crescent Movement
and among states parties that these bodies do not function
adequately. One challenge, for example, is that the commission
can only investigate if all sides to a conflict agree to
let them work — one reason the IHFFC has not yet been
able to carry out any investigations of IHL violations.
Ian Seiderman, legal and policy director at the International
Commission of Jurists, says monitoring mechanisms such as
the IHFFC could be ‘beefed up’, giving them perhaps
the power to investigate violations without having to gain
the consent of the parties involved.
“On compliance, there could be real progress,” says
Seiderman. “I think one area that could be looked at
is a mechanism to provide reparation [for the victims of
violations].”
Human rights and IHL
On the question of detainees, there is also agreement that,
whereas IHL is very specific regarding the treatment of detainees
in international armed conflicts, when it comes to civil
conflicts — and there are an increasing number of them — the
law is much more limited.
However, human rights groups point out that there is a large
body of human rights law governing the treatment of people
in detention and that some of this could be used to strengthen
IHL. In future discussions on strengthening IHL, therefore,
human rights laws should not be overlooked, says Gerald Staberock,
secretary general of the World Organisation Against Torture,
a global coalition of organizations that work to end torture.
“In a classical non-international armed conflict, the human rights laws
are clear,” he says. “I would not want the IHL perspective to supersede
human rights law.”
Seiderman agrees: “Human rights law shouldn’t
get short shrift. This consultation should take a complementary
approach to human rights law.”
This is just one of the many issues that will be discussed
as the long process of consultation begins in the wake of
the International Conference and the adoption of the IHL
resolution. Within the ICRC there is awareness, says Philip
Spoerri, that it has to be “a very inclusive process” and
that it’s too early to predict what the final recommendations
will look like. “We are not kicking off a treaty-making
exercise here,” he says. “But it is really important
that we explore all the options.”
By Imogen Foulkes
Imogen Foulkes is the BBC’s United Nations correspondent
based in Geneva, Switzerland. |
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