International Humanitarian Law and the challenges of contemporary armed conflicts - Recommitting To Protection In Armed Conflict On The 70th Anniversary Of The Geneva Conventions

Report
from International Committee of the Red Cross
Published on 22 Nov 2019 View Original

Executive Summary

This is the fifth report on international humanitarian law (IHL) and the challenges of contemporary armed conflicts prepared by the International Committee of the Red Cross (ICRC) for the International Conference of the Red Cross and Red Crescent (International Conference). Similar reports were submitted to the Inter‑ national Conferences held in 2003, 2007, 2011 and 2015. The aim of all these reports is to provide an overview of some of the challenges posed by contemporary armed conflicts for IHL; generate broader reflection on those challenges; and outline current or prospective ICRC action, positions, and areas of interest.

Like its predecessors, this report addresses only some of the contemporary challenges to IHL. It outlines a number of issues that are the focus of increased interest among States and other actors, as well as the ICRC: the urbanization of armed conflicts; new technologies of warfare; the needs of civilians in conflicts that are, increasingly, protracted; non-State armed groups; terrorism and counterterrorism; climate change, the environment, and armed conflict; and enhancing respect for IHL. These issues include matters not addressed in previous reports, such as sieges, the use of artificial intelligence in warfare, and the protection of persons with disabilities. The report also provides an update on some of the issues that were addressed in previous reports and that remain high on the international agenda, such as the use of explosive weapons in populated areas, certain new technologies of warfare, and foreign fighters and their families.

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

Chapter II addresses contemporary and future challenges in the conduct of hostilities, focusing on selected issues related to urban warfare (section 1) and new technologies of warfare (section 2).

Increasingly, fighting takes place in cities, and this creates a number of specific challenges for parties to the conflict. The report addresses three of them. The first and fundamental one is ensuring that elementary IHL principles on the conduct of hostilities – distinction, proportionality, precautions – are applied in a way that protects civilians in urban battlefields, which are characterized by the intermingling of civilians and combatants, the proximity of civilian objects and military objectives, and a complex web of interconnected urban infrastructure. In particular, the use of explosive weapons with wide-area impact in densely populated areas continues to raise legal questions and significant humanitarian concern. Chapter II also discusses the need to ensure that sieges and encirclement tactics do not violate the rules on the protection of the civilian population – an issue that has drawn significant attention in recent conflicts.

The second section of Chapter II is devoted to new technologies of warfare – some of which have been employed in recent conflicts. It may also be expected that their use will only increase in future – with possible positive and negative consequences for the protection of civilians. Among other things, this chapter draws attention to the potential human cost of cyber warfare; outlines legal and ethical issues concerning the loss of human control over the use of force as a result of autonomy in the “critical functions” of weapon systems; and emphasizes key issues that States have to consider when implementing their responsibility to ensure that new means and methods of warfare are capable of being used in compliance with IHL.

The protracted nature of many of today’s armed conflicts has an impact on the needs and vulnerabilities of civilian populations. Chapter III presents a selection of issues under IHL that relate to the wider humanitar‑ ian debate on the protection of civilian populations. In particular, the chapter discusses how respect for IHL can contribute to finding durable solutions for the plight of the unprecedentedly high numbers of internally displaced persons. It also recalls how IHL can address the specific capacities, experiences and perspectives of persons with disabilities during armed conflict, thereby complementing the pertinent provisions of international human rights law. The chapter also describes how IHL protects the education of children when it is a contested stake in a conflict, when the civilian value of schools is underestimated in the conduct of hostilities, and when militaries use schools.

While humanitarian concerns and IHL challenges arise in relation to operations by all parties to armed con‑ flicts, certain issues present themselves differently when looking especially at non-State armed groups. Chapter IV is therefore devoted to IHL and non-State armed groups. It first addresses questions regarding the applicability of IHL to situations of violence involving multiple armed groups. Subsequently, the chapter discusses the legal regime protecting civilians living in territory under the de facto control of armed groups, and presents initial views on detention by armed groups.

Terrorism and counterterrorism have been the subjects of many policy, humanitarian, and legal debates in recent years. Chapter V highlights three issues in this area that are of particular humanitarian concern. First, it recalls the applicability of IHL to States fighting “terrorism” and non-State armed groups designated as “terrorists”, countering the narrative that IHL is not relevant to the fight against terrorism, or that some of its norms do not apply, or apply differently, to such “exceptional” circumstances. Second, the chapter expresses concerns about certain counterterrorism measures, which impede impartial humanitarian organ‑ izations’ efforts to assist and protect persons affected by armed conflict, and which are incompatible with the letter and spirit of IHL. The chapter also highlights recent developments that can contribute to resolving the tension between States’ interest in enacting effective counterterrorism measures and their obligation to facilitate principled humanitarian activities. Third, the chapter addresses the status and protection of foreign fighters and their families under IHL, focusing in particular on the needs of women and children, as well as parties’ obligations towards them.

Chapter VI focuses on the direct and indirect effects of armed conflict on climate and the environment, recall‑ ing that people affected by armed conflict are especially vulnerable to climate change and environmental degradation. The chapter also draws attention to the ICRC’s “Guidelines for Military Manuals and Instruc‑ tions on the Protection of the Environment in Times of Armed Conflict”, which are currently being revised.

The final chapter of the report, Chapter VII, discusses ways to enhance respect for IHL, which the ICRC has long considered to be the single most important challenge to IHL. The chapter presents work that the ICRC and partners have recently conducted or launched to enhance their dialogue with all parties to armed conflict.
This includes the ICRC’s Support Relationships in Armed Conflict initiative, which aims to leverage the complex webs of support and partnering relationships in contemporary armed conflicts to strengthen respect for IHL; an ICRC study, Roots of Restraint in War, that identifies sources that influence norms of behaviour in armed forces and armed groups; and the development of Guidelines on Investigating Violations of IHL: Law, Policy, and Good Practice.