The Role of Nonstate Entities in Developing and Promoting International Humanitarian Law.

• Author: Dormann, Knut
• Position: A - Special Issue: The Law of Armed Conflict

TABLE OF CONTENTS I. THE DEVELOPMENT OF IHL: THE RETICENCE 714 OF STATES AND THE INCREASED ROLE OF NONSTATE ENTITIES II. THE ROLE OF THE ICRC IN THE DEVELOPMENT 716 OF IHL TREATY LAW III. THE ICRC: CONTRIBUTING TO THE 717 CLARIFICATION, INTERPRETATION, AND PROMOTION OF IHL A. Multilateral Process with States 717 B. Expert Meetings & Conferences 720 C. Updated Commentaries to the 721 1949 Geneva Conventions and Their 1977 Additional Protocols D. Customary IHL Study 723 IV. OTHER ACTIVITIES CONDUCTED BY 724 NONSTATE ENTITIES THAT CONTRIBUTE TO IHL V. CONCLUDING THOUGHTS 726 I. THE DEVELOPMENT OF IHL: THE RETICENCE OF STATES AND THE INCREASED ROLE OF NONSTATE ENTITIES

Since the negotiation and adoption of the 1977 Additional Protocols to the Geneva Conventions, no major codification of general IHL has occurred. IHL has developed, however, in specific areas, in particular regulating the employment of weapons, the protection of cultural property, and the prosecution of war crimes. While during the period following the Cold War states made significant progress in developing IHL in these specific fields, the last decade or so has been nearly devoid of any major IHL treaty developments--the notable exceptions, however, being the Convention on Cluster Munitions (2010), the Arms Trade Treaty (2014), and, most recently, the Treaty on the Prohibition of Nuclear Weapons (2017). (1) In the current geopolitical environment, states struggle to come to agreement on developing new instruments of IHL, whether binding or nonbinding. This is, amongst other things, the result of a deeply divided international community, armed conflict pervading nearly all regions of the world, and seemingly a lack of interest of states in developing or clarifying IHL through collective multilateral processes.

In this geopolitical context, it has also proved difficult for states to agree on concrete interpretations of the law. This is surely due, in part, to the fact that there is no general venue or forum where states can come together regularly to discuss IHL and share their interpretations on particular issues, unlike in the case of treaties regulating the employment of weapons.

One must acknowledge, however, that contemporary armed conflicts pose new humanitarian problems and legal problems that need answers, with many questions arising about how such issues can be addressed within the existing IHL framework. States rarely take initiatives in this respect. Exceptions include, for example, the Copenhagen Process on the Handling of Detainees in International Military Operations (The Copenhagen Process: Principles and Guidelines, 2012), (2) and the process conducted by Switzerland and the ICRC that led to the adoption of the Montreux Document on Private Military and Security Companies (2008). (3) However, these processes have involved limited numbers of states in the elaboration: twenty-four in the case of the Copenhagen Process (4) and seventeen in the case of the Montreux Document, (5) the latter of which has been subsequently endorsed by fifty-four states and three international organizations. (6)

The general reticence of states to take action to address such issues by developing new binding law, or to reach consensus on interpretations of the law, has left more space for nonstate entities to take action and put forward their views. Indeed, in the words of Michael Schmitt and Sean Watts, nonstate entities have come to play increasing roles in "exert[ing] informal but real pressure on the shape of IHL." (7)

In the face of concrete challenges, in recent years, both states and nonstate entities, the number of which has increased, have used various avenues to stimulate debate about how to interpret, apply, and clarify IHL. There is now a spectrum of such activity ranging from state-driven processes aiming at producing non-legally binding outcomes, through to hybrid processes involving states, independent experts and organizations such as the ICRC, ICRC-initiated processes, expert processes leading to the development of manuals for specific areas, and academic writings.

2. THE ROLE OF THE ICRC IN THE DEVELOPMENT OF IHL TREATY LAW

   The ICRC in its role of guardian of IHL has been particularly active over time in contributing to the development, clarification, interpretation, and reaffirmation of IHL. It does so on the basis of its mandate in the field of IHL as articulated in the Statutes of the International Red Cross and Red Crescent Movement. (8) The Statutes were adopted by the International Conference of the Red Cross and Red Crescent, which brings together the components of the International Movement of the Red Cross and Red Crescent (i.e., the National Red Cross and Red Crescent Societies, the International Federation of the Red Cross and Red Crescent and the ICRC, as well as all High Contracting Parties to the 1949 Geneva Conventions). Among its roles listed in the Statutes, the ICRC is to "undertake the tasks incumbent upon it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law." (9) It is "to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof." (10)

   Pursuant to this mandate, the ICRC has played a critical driving role behind the development of much of the IHL treaty law over the last century and a half. (11) It was the ICRC that took the initiative that led to the adoption of the original Geneva Convention of August 22, 1864, (12) and the ICRC played important roles leading up to the adoption of the 1949 Geneva Conventions (13) and their Additional Protocols. (14) The ICRC was strongly involved in developing the content of these treaties, while all decisions on negotiated outcomes of course remained with states. In these cases, over many years, the ICRC held consultations with groups of experts, prepared draft texts, consulted with the International Conference, presented revised drafts to Switzerland as depository to the Geneva Conventions, and participated actively in the Diplomatic Conferences. (15) The ICRC also played important roles, albeit in comparison less prominently, in contributing to the development of other IHL treaties--including, for example, the Convention on Certain Conventional Weapons and its protocols and the Ottawa Convention on Anti-Personnel Mines. (16)

3. THE ICRC: CONTRIBUTING TO THE CLARIFICATION, INTERPRETATION, AND PROMOTION OF IHL

   Given the current reluctance of states to develop new treaty rules, the activities of the ICRC, like several other nonstate entities, have come to focus more on alternative ways of contributing to the clarification, interpretation, and promotion of IHL; stimulating debate; and helping to influence states' views. It is in these diverse ways that, one can say, the ICRC contributes to the evolution of IHL over time--first and foremost, to find answers to contemporary pressing humanitarian problems of armed conflicts.

   The following examples are illustrations of non-legally binding processes and outcomes--at times initiated by the ICRC, at times requested by the International Conference of the Red Cross and Red Crescent, mandating the ICRC to undertake such processes. Such processes were led either entirely by the ICRC, or together with one or several states, and involved legal experts or state representatives.

   1. Multilateral Process with States

      The ICRC has worked to facilitate a multilateral process with all states, aimed at producing one or more non-legally binding outcomes. It has done so based on resolutions adopted by the International Conference of the Red Cross and Red Crescent, as in the case of the following two examples, or on its own initiative as in the final example.

      The first example is the ICRC's recent initiative on "Strengthening IHL Protecting Persons Deprived of their Liberty," a process of strengthening IHL through nonbinding clarification of existing law. The driving rationale for this initiative is the significant disparity between the robust and detailed provisions applicable to the deprivation of liberty in the context of...