Status of the Protocols additional to the Geneva Conventions: ICRC statement to the United Nations, 2010
Status of the Protocols additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts
Thank you, Mr. Chairman.
33 years ago the international community adopted Protocols I and II, and five years ago Protocol III additional to the 1949 Geneva Conventions. While the Geneva Conventions have been universally ratified, there are 170 States party to Additional Protocol I, 165 to Additional Protocol II and 53 to Additional Protocol III. The ICRC welcomes this sustained progress in the participation of States in the Additional Protocols, which form part of the very foundation of international humanitarian law. It encourages States which have not yet done so to ratify the Protocols as soon as possible in order to enhance the protection of victims of armed conflicts, wherever they may be.
The protection of victims of armed conflicts is also enhanced by the adoption of new treaties aiming at preventing or mitigating the humanitarian consequences of armed conflict. For instance, in adopting the Convention on cluster munitions, which entered into force in August 2010, States have taken a major step towards ending the suffering caused by these weapons. This illustrates the adaptability of international humanitarian law to the practical realities on the ground.
The international community should indeed develop international humanitarian law whenever necessary in order to address contemporary legal and humanitarian challenges. The ICRC will continue, in accordance with its mandate, to consider any development of international humanitarian treaty law that could contribute to the protection of victims of armed conflicts.
In that respect, the ICRC has conducted a comprehensive internal study during two years to identify areas of potential development in international humanitarian law. In that study, the ICRC assesses the humanitarian concerns arising in today's armed conflicts, in particular non-international armed conflicts, with a view to addressing possible gaps or weaknesses in current treaty and customary law. Overall, the study concluded that international humanitarian law remains an appropriate framework for regulating the behaviour of parties to armed conflicts. If the core rules of international humanitarian law were properly respected by the parties concerned, most current humanitarian issues in conflict would not exist.
However, the study also showed that international humanitarian law, in its current state, does not always offer fully satisfactory solutions to all specific humanitarian needs observed on the ground. Four main areas are of particular concern:
- the protection of persons deprived of liberty, especially in non-international armed conflicts;
- mechanisms of control for the respect of international humanitarian law and reparations to victims of violations;
- the protection of internally displaced persons; and
- the protection of the natural environment.
The ICRC's President in Geneva provided details of this work on September 21, 2010, in an official statement distributed to Permanent Missions and available on the ICRC website. The ICRC would now like to open a dialogue with States and other interested parties on any follow-up to the conclusions of its study. Comments or suggestions, in terms of substance and process, will be gratefully received. The ICRC is particularly interested in knowing to what extent States and other stakeholders agree with our reading of the humanitarian issues before us and the related challenges for humanitarian law.
The ICRC mandate also includes working for a better understanding of international humanitarian law. For example, the ICRC launched in August 2010 a new Database on customary international humanitarian law, which, thanks to its regular updates, provides a means of following the application and interpretation of the law. The ICRC study on customary international humanitarian law has been used as a legal reference by the ICRC, by States, by the United Nations as well as by international and national tribunals; it has now been made available on the internet.
Another example is the ICRC's 2009 publication of its Interpretive Guidance on the notion of direct participation in hostilities. In its extensive humanitarian field work, the ICRC has witnessed how the unclear distinction between civilian and military functions and the increasing involvement of civilians in military operations have caused confusion as to who is a legitimate military target and who must be protected against direct attack. Therefore, the ICRC Interpretive Guidance provides the ICRC's own recommendations on how to interpret provisions of international humanitarian law on the notion of direct participation in hostilities. While the Interpretive Guidance is not legally binding, the ICRC hopes that it will be used by States, non-State armed groups, practitioners and academics alike and that, ultimately, it will help better protect the civilian population from the dangers of warfare.
One other initiative to better address contemporary challenges was the 2008 Montreux document on private military and security companies. This was the fruit of an initiative launched cooperatively by the Swiss government and the ICRC, in consultation with experts from government, civil society and the private military and security industry. The Montreux document reaffirms the obligation on States to ensure that private military and security companies operating in armed conflicts comply with international humanitarian and human rights law.
These initiatives demonstrate the continued dynamism of international humanitarian law. But humanitarian law can only meet its objective of protection of victims of armed conflicts when it is respected and when there is a political will to apply it.
Lack of respect for applicable rules is the principal cause of suffering during armed conflicts.
Today, it is worth recalling that States have the obligation under various treaties to harmonize their domestic legal framework and practice with humanitarian law. They can do so by adopting a wide range of national implementation measures, including legislation and administrative measures, drawing up military manuals and proper training within the armed and security forces. As always, the ICRC, as well as national Red Cross and Red Crescent societies, stand ready to assist them in their endeavours in this respect.
Moreover, States party to Protocol I additional to the Geneva Conventions should also be encouraged to make the declaration under its Article 90 and to consider making use, where appropriate, of the services of the International Fact-Finding Commission.
Compliance with international humanitarian law and other humanitarian concerns will certainly be discussed between States represented here and the International Red Cross and Red Cross Movement at the November 2011 International Conference of the Red Cross and Red Crescent. This major humanitarian meeting will further explore new challenges and trends observed in contemporary armed conflicts and other situations of violence.
Finally, Mr. Chairman, the ICRC wishes to express its appreciation to the Member States who submitted national reports in accordance with resolution A/RES/63/125, and to the Office of Legal Affairs which prepared the Secretary-General's Report. The ICRC would encourage Member States to consider how the reporting process every two years could be strengthened.
Certainly it is desirable that the greatest number of States submit reports. The ICRC stands ready to work with interested Member States and the Secretariat to review the reporting process and make recommendations, for example through the introduction of suggested reporting criteria or a voluntary reporting form or template to facilitate preparation and compilation of national reports.
Thank you Mr. Chairman.