International Humanitarian Law: Should It Be Reaffirmed, Clarified or Developed?

Author:Jean-Philippe Lavoyer
Position::Head of the Legal Division, International Committee ofthe Red Cross, Geneva
Pages:287-309
 
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International Humanitarian Law:
Should It Be Reaffirmed,
Clarified or Developed?
Jean-Philippe Lavoyer1
Introduction
Theaim of this paper is to give an overview of some concrete problems of ap-
plication of international humanitarian law (IHL) and then to look towards
possible future remedies. This will be done from the practice oriented, operational
perspective of the International Committee of the Red Cross (ICRC).
The ICRC is mandated by States, in particular through the 1949 Geneva Con-
ventions and their 1977 Additional Protocols, as well as the Statutes ofthe Interna-
tional Red Cross and Red Crescent Movement, to act as promoter and "guardian"
of IHL. This role has many facets. It ranges from the promotion of IHL treaties, the
monitoring of respect ofIHL by the parties to armed conflicts, the dissemination of
IHL, to preparing developments of IHL.2
For the ICRC, an institution present in almost all the "hot spots" of the world, the
main challenge is ^vithout any doubt the proper application of IHL in today's armed
conflicts. Extensive research into recent armed conflicts has led the ICRC to conclude
that, on the whole, the existing rules are adequate enough to deal with today's armed
conflicts. While the main problem is therefore not alack of rules, this does not mean
that the law is perfect. Like any law, IHL is the result of careful and difficult compro-
mises, in this case between considerations ofhumanity, military necessity and the need
International Humanitarian Law
to protect the security of the State. It must be stressed that the ICRC's conclusion on
the adequacy of IHL does not mean that it would in any way ignore the many chal-
lenges with regards to the application of the law, including those relating to the fight
against terrorism, nor the need for IHL to evolve together with the realities of war.
Especially following the attacks of September 11, 2001, questions have been
raised about whether IHL was still adequate to respond to today's challenges. The
debate has taken various forms. At the beginning of 2003, the Swiss Government
and the Harvard Program on Humanitarian Policy and Conflict Research orga-
nized an informal expert meeting on contemporary challenges of IHL for agroup
of States and independent experts, as well as the United Nations and the ICRC.
The experts identified anumber of topics deserving further examination and
clarification. But at the same time they also strongly reaffirmed the validity of
current humanitarian law and the necessity to apply it. 3Asecond meeting was
held in June 2004.4
The ICRC for its part has taken anumber of initiatives that will be mentioned
later in this paper, with aview to reaffirm, clarify or develop IHL.
The first part of this paper will highlight some of the current challenges. It will
address two aspects: first, some important general obligations under IHL will be re-
called, and second, some special challenges linked to the "war on terror" will be
briefly discussed.
Challenges OfAGeneral Nature
The more general challenges facing IHL can be subdivided very roughly according
to the following timeline: obligations in peacetime, obligations during armed con-
flict and obligations after the armed conflict. Even if these different phases will of-
ten overlap, these distinctions provide auseful analytical framework.
Before addressing some concrete obligations, aword should be said about the
importance for States to widely ratify IHL treaties. Indeed, broad ratification of
IHL treaties confirms the validity of the rule and, therefore, contributes to improv-
ing compliance. Alook at the list of the State parties to the main IHL treaties shows
that there is still agreat effort to be undertaken to promote these treaties in order to
obtainideallyuniversal adherence. 5
Obligations in Peacetime
Many States have still not fully incorporated IHL treaties into their domestic law. It
is not sufficient to ratify atreaty; it must also be implemented, i.e., integrated, at the
national level. One particularly important area is the adoption of domestic law that
makes it possible to prosecute grave breaches and other serious violations of IHL,
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