GIVING KNOWLEDGE: International Humanitarian Law
How does Humanitarian Law adapt to new developments and what is the ICRC's role in the process? International humanitarian law is developed by States through codification or State practice. These two processes usually overlap.
Widespread practice of States may crystallize customary international law It is also State practice, sometimes combined with the activities of non-governmental organizations (NGOs), which may trigger the codification of international law. Codification takes the form of treaties, such as conventions, covenants, protocols, or pacts. For example, a number of States had already passed national legislation which implicitly or explicitly prohibited the use of anti-personnel mines. Yet that practice was not widespread and therefore no customary law had formed. Then in 1997 a conference was convened to develop a specific convention, and the use, stockpiling, production and transfer of anti personnel mines became prohibited for all States which ratified the treaty.
The ICRC's role in the development of humanitarian law is to:
· monitor the changing nature of armed conflict;
· organise consultations with a view to ascertaining the possibility of reaching agreement on new rules;
· prepare draft texts for submission to diplomatic conferences.
The example of the two Protocols additional to the Geneva Conventions gives an idea of how humanitarian law is made from the initial idea to its adoption: . on the basis of draft rules prepared in 1956, then of resolutions adopted in the 1960s by two International Conferences of the Red Cross and by the International Human Rights Conference held in Tehran in 1968, the ICRC studied the possibility of supplementing the Conventions adopted in 1949;
. in 1969 the ICRC submitted that idea to the 21st International Conference of the Red Cross, in Istanbul; the participants, including the States party to the Geneva Conventions, mandated it accordingly and the ICRC's own lawyers embarked on the preparatory work;
· between 1971 and 1974, the ICRC organized several consultations with governments and the Movement; the United Nations was regularly given progress reports;
· in 1973 the 22nd International Conference of the Red Cross, in Tehran, considered the draft texts and fully supported the work done;
· in February 1974 the Swiss Government, as depositary of the 1949 Geneva Conventions, convened the Diplomatic Conference on the reaffirmation and development of international humanitarian law applicable in armed conflicts, in Geneva; it comprised four sessions and ended in June 1977;
· at the final session of that Conference, the 102 articles of Protocol I and the 28 articles of Protocol 11 were adopted by the plenipotentiaries of the 102 States represented.
What does Humanitarian Law provide for in terms of material assistance to the victims of armed conflict?
The States party to the Geneva Conventions recognizes the right of victims of armed conflicts to receive supplies indispensable to their survival. That right was further developed with the adoption of the Additional Protocols in 1977.
In an international armed conflict, the right to assistance includes in particular:
. Free passage for consignments of certain objects necessary to the survival of the civilian population (Art. 23, Fourth Convention, drafted to deal with blockades);
. The duty of the Occupying Power to ensure essential supplies to the population of territories it occupies (Art. 55, Fourth Convention); if its own supplies are inadequate, the Occupying Power must agree to relief provided by outside sources (Art. 59, Fourth Convention).
Protocol I (Arts. 69 and 70) strengthens the body of rules adopted in 1949. For instance, a State at war must accept impartial humanitarian relief schemes carried out without discrimination for the population on its own territory, subject to the agreement of the parties concerned. If those conditions are met, however, it would be wrong to refuse such relief schemes, which are regarded neither as interference in the armed conflict nor as hostile acts.
In a non-international armed conflict, Protocol 11 (Art. 18) specifies, among other things, that if the civilian population is suffering excessive deprivation owing to a lack of supplies essential to its survival, relief actions which are of an exclusively humanitarian and impartial nature and conducted without any adverse distinction must be undertaken subject to the consent of the warring parties. It is now generally recognized that the State must authorize purely humanitarian relief operations of this nature.
The ICRC and the right to assistance
The ICRC in any case has a right of initiative that enables it to offer its services to parties in conflict, in particular with a view to assisting the victims. Its offer of assistance (relief or other activities) does not constitute interference in the internal affairs of a state, since it is provided for in humanitarian law.
Humanitarian law and the "right to intervene on humanitarian grounds"
In so far as a "right - or even a duty - to intervene" is tantamount to justifying armed intervention undertaken for humanitarian reasons, this is a matter not for humanitarian law but for the rules on the legality of the use of armed force in international relations, i.e. of jus ad bellurn.
If there is armed intervention on humanitarian grounds, the ICRC must in accordance with its mandate ensure that those engaged in the intervention observe the relevant rules of IHL; it must also endeavour to aid the victims of the conflict.
The ICRC is neither for nor against the "right to intervene". In the light of its own experience, the issue is a political one in which the ICRC cannot become involved without jeopardizing its humanitarian work.
Von: 22.6.2006 By Sayoh Kamara, AWARENESS TIMES Sierra Leone News & Information