Summary of findings and recommendations on armed conflict and humanitarian law
This following was prepared as background material for the 2017 Conference and provides a summary of the findings and recommendations of an ICIHI report titled ‘Modern wars: the humanitarian challenge’, published in 1985.
The Commission’s work in the area of armed conflict and humanitarian law was prompted and guided by four disturbing trends:
- the development and proliferation of increasingly lethal weapons of mass destruction;
- an alarming rise in expenditure by states on their armed forces, to the detriment of social and economic programmes;
- a proliferation of armed conflicts and proxy wars at the national and regional levels; and,
- the spread of vicious communal conflicts in which people are targeted on the basis of their ethnic, religious or other identity.
In view of these developments, the Commission concluded that no comfort could be drawn from the fact that a world war had been avoided for the preceding 40 years. “The distinction between war and peace, which was still evident up until the Second World War,” it stated, “is increasingly blurred. Violence always hovers in the background, ready to erupt at any time or anywhere. Security is purportedly maintained by states, but at the expense of individual security.”
If civilians were to be properly protected in this volatile context, the Commission observed, then appropriate laws and norms were required to govern the conduct of armed conflict by both states and non-state actors. “Since war exists, what can be done, apart from preventive efforts, to limit its destructive effects? How can the suffering of the sick and wounded be mitigated? In short, is there a moderating element that could ‘humanize’ war?”
Humanitarian norms in armed conflict
According to the Commission, the development of new strategies and methods of armed conflict in the Cold War era had given rise to an attempt to update existing international humanitarian law, especially the Geneva Conventions of 1949. This process culminated in the two Additional Protocols of 1977, which related to the issue of protection in international and internal armed conflicts respectively.
Assessing the state of international humanitarian law, the Commission was not entirely negative. It pointed out that the 1977 Protocols had improved the protection of particularly vulnerable groups such as children, refugees and stateless people. More specifically, they had made it inadmissible for children under the age of 15 to take a direct part in hostilities.
Another of the Protocols’ achievements was to establish minimum guarantees for those affected by different types of armed conflict. Moreover, the individual was protected not only against a foreign enemy, but also against his or her own government in situations of armed conflict.
At the same time, the Commission identified a number of gaps and weaknesses in the realm of international humanitarian law.
First, it pointed out that the protective machinery established by the international community was complex and inconsistent. The level of protection was very high in international armed conflicts, lower in non-international armed conflicts under Protocol II and virtually non-existent in the context of disturbances and tensions.
Second, the Commission observed that states remained very jealous of their sovereignty when engaged in armed conflicts. Protocol I, for example, reminded belligerents that they did not have an unlimited right with respect to their choice of military methods.
They should not cause unnecessary harm. They must at all times distinguish between civilians and combatants. And they must not use methods that damage the natural environment. Fearing that these provisions might limit their ability to use nuclear weapons and other new technologies, a number of states refused to ratify the Protocol.
Third, the Commission concluded that there was little the international community could do when humanitarian law and norms were violated. Attacks against cities and civilian populations, for example, as well as the use of chemical weapons, the taking of hostages and the ill-treatment of prisoners of war were all on the rise.
But the fact of the matter was that “the institutional and procedural framework to ensure compliance with humanitarian norms is largely dependent on the consent and political will of states.” “As soon as they are directly or indirectly involved in an armed conflict,” the Commission stated, “most states qualify, interpret or simply ignore the rules of humanity, evoking state interests and sovereign prerogatives.
A realistic humanitarian strategy
Responding to the gloomy scenario outlined above, the Commission concluded that international humanitarian law and norms should be revitalized and enjoy greater authority.
“The rules exist already. Indeed, codification could even be said to have reached saturation point. What is lacking is simplicity, clarity and, above all, efficient and effective implementation. The challenge is to ensure the observance of the rules we already have.” To attain this objective, the Commission proposed a number of measures.
A clear and concise restatement of fundamental rules
The Commission recommended that a set of minimum rules combining fundamental principles of humanitarian law and human rights should be compiled. This would serve as a code of conduct that state officials and soldiers would have to observe at all times. The complexity of humanitarian norms and their lack of immediate clarity, the Commission pointed out, had contributed to violations of international law.
Highlighting the basic principles of humanitarian law and isolating them from the mass of procedural and implementing provisions would be of particular value, as it would make both the principles and potential violations of them clearly visible. In this context, particular attention should be given to fundamental norms such as the right to life and dignity of the person; the prohibition of indiscriminate violence, terrorism, torture, degrading treatment and disappearances; and the limitations on state power in the maintenance of law and order.
The Commission was eager to emphasize that such a code of conduct would not replace international law and would complement the other efforts being made to promote the ratification and implementation of relevant instruments.
Ratification of the 1977 Protocols
The Commission concluded that Additional Protocols I and II of 1977 had not been as successful as expected in terms of the number and speed of state ratifications. It observed that many developing, neutral and Nordic states had acceded to the Protocols, but that there has been few ratifications by countries in Western and Eastern Europe or amongst Permanent Members of the UN Security Council.
Such reluctance to ratify was unjustified, the Commission argued, as the protocols as a whole did not constitute new law. They simply updated existing humanitarian law, in particular the four 1949 Conventions, to which almost all states had acceded. International and regional organizations should encourage ratification of the 1977 Protocols and ensure wider dissemination of humanitarian norms, as had been done in the field of human rights.
Better observance of humanitarian norms
The Commission underlined the fact that states have undertaken not only to observe humanitarian norms but also, more importantly, to ensure their implementation and to act individually and collectively when serious breaches of them took place. Such action should be undertaken more frequently and in a more systematic manner. Far from being incompatible, political and humanitarian concerns condition and complement each other.
When armed conflicts cannot be avoided, the UN should do everything in its power to mitigate the suffering caused by them. ‘Good offices’ missions by the Secretary-General and the establishment of commissions of inquiry could, for example, play a significant role in ensuring respect for humanitarian norms. The public should be made aware of violations when they take place, although humanitarian organizations might have to avoid overt denunciations of the parties to armed conflicts so as not to jeopardize their field operations and lose access to the victims they seek to help.
More vigilance during states of emergency
The Commission argued that humanitarian laws and norms and the protection of human rights were at particular risk in the context of internal conflicts and states of emergency. Countries experiencing such conflicts should consequently be put ‘under observation’ and placed on a constantly updated list, with a detailed record being kept of any incidents in which international humanitarian and human rights law was violated.
Improving public awareness
The Commission concluded that public opinion and media exposure had proved to be an effective instrument in promoting human rights. It was regrettable that violations of international humanitarian law did not attract the same level of interest. There were, for example, far fewer organizations engaged in publicizing and denouncing violations of humanitarian laws and norms and an absence of the annual reports produced by a number of human rights entities.
Increasingly, the Commission observed, conflicts were partly won and lost by means of the coverage which they received in the media. Journalists should be encouraged to inform the public and increase its awareness of situations in which humanitarian laws and norms were being violated. While stories and pictures of victims had a role to play in raising public awareness, much more should be said about the root causes of armed conflict and the suffering that could have been avoided or mitigated if humanitarian laws and norms had been observed.
The Commission also stated that greater efforts should be made to protect journalists who send back information from the battlefield, and who often find themselves in situations of danger. It might be helpful, the Commission suggested, to introduce a universally recognized symbol, such as that found on the Red Cross and Red Crescent armband, to identify and protect representatives of the media.
While it used the notion of ‘armed violence’ in a very comprehensive manner, ranging from nuclear war to human rights violations committed by representatives of the state, the Commission attached a particular importance to the issue of communal conflicts. “Recent years,” it concluded, “have seen the re-emergence of ethnicity as a strong social and political force. Members of a group bound together by cultural ties, history or language often have their sense of identity reinforced when confronted with any threat, real or perceived, to their communal autonomy. Inter-communal hostility does not always lead to violence but there is an inherent risk of it doing so.”
Recognizing the growing significance of this issue, the Commission set out a humanitarian strategy specifically designed to avert and mitigate the effects of communal conflict.
This included the development of procedures providing disaffected groups with a legal means of recourse if they felt their rights were threatened; legislative measures to protect communities from discrimination; affirmative action programmes for members of disadvantaged minorities; the removal of linguistic barriers to education and employment; third-party mediation in inter-communal disputes; and a clear recognition by all governments that they have a responsibility to protect all of the people residing on their territory, irrespective of their ethnicity.