ReliefWeb

31st INTERNATIONAL CONFERENCE OF THE RED CROSS AND RED CRESCENT

Geneva, Switzerland
28 November – 1 December 2011

Report

Document prepared by the International Committee of the Red Cross

Geneva, October 2011

EXECUTIVE SUMMARY

This is the third report on "International Humanitarian Law (IHL) and the Challenges of Contemporary Armed Conflicts" prepared by the ICRC for an International Conference of the Red Cross and Red Crescent, the first two having been submitted to the 28 th and 30 th International Conferences in Geneva, in December 2003 and November 2007, respectively. These reports aim to provide an overview of some of the challenges posed by contemporary armed conflicts for IHL, to generate broader reflection on those challenges and to outline ongoing or prospective ICRC action, positions and interest.

This report, like its predecessors, can only address a part of the ongoing challenges to IHL.
The ICRC therefore selected a number of issues which were not addressed in previous reports but which are increasingly the focus of interest among States and for the ICRC, such as new technologies in warfare or the drafting of the new Arms Trade Treaty. At the same time, the report seeks to give an update on some of the issues that had been addressed in the previous reports and remain of ongoing interest.

Another report submitted to the Conference, entitled "Strengthening Legal Protection of Victims of Armed Conflict", summarizes the results of a process of research and reflection conducted by the ICRC since 2008 on the adequacy of existing IHL to protect the victims of contemporary armed conflicts. The analysis identifies four areas of IHL in which, in the view of the ICRC, humanitarian concerns are not adequately addressed by existing IHL and where IHL should therefore be strengthened - namely the protection of detainees, of internally displaced persons and of the environment in armed conflict, and the mechanisms of compliance with IHL.

The introduction to this report provides a brief overview of current armed conflicts and of their humanitarian consequences, and thus of the operational reality in which challenges to IHL arise.

Chapter II focuses on the notion and typology of armed conflicts, issues that have been the subject of ongoing legal debate over the past several years. It addresses, inter alia, the question of criteria for the determination of an international armed conflict (IAC) and of whether the IHL classification of armed conflicts into international and non-international is sufficient to encompass the types of conflicts taking place today. It also provides a typology of non-international armed conflicts (NIAC) governed by Common Article 3 of the 1949 Geneva Conventions, and examines the application, as well as the applicability of IHL to contemporary forms of armed violence.

Chapter III is devoted to the interplay of IHL and human rights law, which is an area of abiding legal interest because of the practical consequences that this relationship may have on the conduct of military operations. It first provides a general overview of some of the differences between IHL and human rights law, highlighting, in particular, the differences in the binding nature of IHL and human rights law on organized non-state armed groups. It then discusses the specific interplay between these two branches of international law in relation to detention, and the use of force, in international and non-international conflicts, respectively. The extraterritorial targeting of persons is also briefly dealt with.

The first section of Chapter IV, on the protective scope of IHL, aims to highlight a range of issues related to humanitarian access and assistance, including the legal framework applicable to humanitarian action, as well as the practical constraints that may hamper the 31IC/11/5.1.2 4 delivery of humanitarian relief. The section on the law of occupation discusses salient legal questions that have arisen in the application of this part of IHL, such when occupation begins and ends, the rights and duties of an occupying power, the use of force in occupied territory, and the applicability of occupation law to UN forces. These questions were, among others, explored in an expert process organized by the ICRC between 2007 and 2009, and resulted in the preparation of report that will be published before the end of 2011.

The next section is devoted to IHL and multinational forces, whether under UN auspices or otherwise, and examines the legal challenges posed in the spectrum of operations in which such forces may be involved. Relevant queries pertain, inter alia, to the applicability of IHL to such forces, the legal classification of situations in which they take part, detention by multinational forces, interoperability, and others. It is submitted that multinational forces, regardless of their specific mandate, are bound by IHL when the conditions for its application have been met. The last section of the Chapter sheds light on the humanitarian challenges posed by the use of private military and security companies and surveys recent and ongoing international initiatives aimed at ensuring that their activities comply with IHL and other relevant bodies of international law.

Chapter V, on means and methods of warfare, first addresses new technologies of warfare, including, in the first section, “cyber warfare”. This section discusses the specificity of cyberspace as a potential war fighting domain and the particular challenges posed by cyber operations to the observance of the IHL prohibitions of indiscriminate and disproportionate attacks, as well as the obligation to take feasible precautions in attack. The section also reviews some of the legal challenges posed by remote controlled weapons systems, as well as automated and autonomous weapons systems. It recalls that new technologies must abide by existing IHL rules, while recognizing that existing norms do not respond to all the legal and practical challenges posed by new technologies.

The use of explosive weapons in densely populated areas is the focus of the next section of the Chapter, which outlines both the human costs and the challenges of respecting IHL rules involved in the use of such weapons. As a result of these factors it is believed that explosive weapons with a wide impact area should generally not be used in densely populated areas.

The section on direct participation in hostilities recapitulates the process leading to and the main recommendations contained in the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL which was published in 2009, and reflects solely the ICRC’s views. Different positions expressed in relation to some of the recommendations made in the Interpretive Guidance are also briefly discussed.

The last section of the Chapter examines the process leading to current work within the UN on drafting an Arms Trade Treaty, one of the most important objectives of which should be to reduce the human cost of the availability of weapons by setting clear norms for the responsible transfer of conventional arms and their ammunition. The ICRC supports the elaboration of a comprehensive, legally binding Arms Trade Treaty that establishes common international standards in this area.

Chapter VI addresses the current conflation of armed conflict and terrorism by unpacking the distinctions between the legal frameworks governing these types of violence. It elaborates on both the legal and policy effects of blurring armed conflict and terrorism, as well as the disadvantages caused by such blurring particularly for the observance of IHL by non-state parties to NIACs. The practical effects of the conflation, that is the potential for curtailing the work of humanitarian organizations in NIACs, is also discussed.