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The action behind
the words

 

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


“The language is quite general.
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.”

Jakob Kellenberger, president, ICRC

 

For more about IHL, please see:

Resolution — Strengthening legal protections for victims of armed conflicts:
www.icrc.org/eng/resources/documents/resolution/31-international-conference-resolution-1-2011.htm

ICRC legal expert Sylvain Vité explains how IHL might adapt to contemporary challenges:
www.icrc.org/eng/resources/documents/interview/2011/ihl-development-interview-2011-11-28.htm

For more about IHL’s relevance and the war on terror:
www.icrc.org/eng/resources/documents/misc/terrorism-ihl-210705.htm

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