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

XVI

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

obtain—ideally—universal 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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