We must be vigilant in guarding against the erosion of humanitarian law: Side event on 70 Years of the Geneva Conventions, International Law Week at the United Nations
As delivered by Ms. Cordula Droege, Head of the Legal Division, ICRC
It is my pleasure to be here today to celebrate the 70th anniversary of the Geneva Conventions.
In 1949, only four years after the tremendous suffering of the Second World War, and at the beginning of the Cold War, States negotiated the 429 Articles of the Geneva Conventions in only 4 months. Since then, the Conventions have achieved universal ratification. To us, this is compelling example of what can be achieved when States come together, driven by the common purpose to preserve a minimum of humanity even in times of armed conflict.
Their success and universal ratification is due to two important factors:
First, they are pragmatic rules, written with military experts in the room, steeped in the practical experience of war. And they are written with the multiple experiences in mind: the experience of soldiers, who are the subject of the protection of the first three Conventions, and the experience of civilians, the subject of protection of the fourth Convention. This remains the case for IHL today.
Second, they find their roots in customary rules and practices limiting the devastating effects of warfare, which have existed in all civilizations.
Over the decades more rules of IHL have been added to these core Conventions – APs and treaties on weapons. When we look at today's conflicts, what are the critical issues that the international community must address? And that we, as lawyers, must explore?
The ICRC has just released its report on "IHL and the challenges of contemporary armed conflicts", submitted as a report to the International Conference of the Red Cross and Red Crescent. The report examines key areas for increased support for the respect of international humanitarian law.
I would like to highlight three aspects of contemporary warfare that the ICRC thinks deserve attention.
Firstly, the urbanization of conflicts.
While urban conflicts are not new, wars will continue to move into cities as the world urbanizes. Some 50 million people are currently suffering the impact of war in cities. When cities are bombed and shelled, the vast majority of casualties are civilians.
The ICRC observes that the use in populated areas of explosive weapons that have wide area effects continues to be a major cause of civilian death and injury and damage to civilian objects.
Not only are civilians exposed to great risk of death and injury, the lifelines they rely on – health, water, sanitation systems – are often damaged or entirely cut off. We need only to look at the flattened cities of Aleppo, Taiz, Mosul to see the devastation that urban warfare can cause.
Even when indispensable services are not directly targeted, they are disrupted as an indirect result of attacks, or become increasingly degraded until they simply breakdown.
Fighting in urban areas also results in the widespread displacement of people. Once fighting stops, how can people return when their cities are littered with unexploded ordnance, and when essential services are non-existent?
This is why the President of the ICRC and the United Nations Secretary General have recently appealed to States and all parties to armed conflict to avoid the use of explosive weapons with a wide impact area in populated areas, due to the significant likelihood of indiscriminate effects.
To some militaries, this appeal may sound utopian: how can war be fought without the use of heavy explosive weapons? The reality is, however, that some armed forces have already put in place restrictions and limitations on the use of heavy explosive weapons in populated areas. Still, more needs to be done, urgently, and we encourage States to share ways in which they have tried to avoid the heavy toll of urban fighting for civilians.
We are encouraged by the momentum building among States to develop a political declaration to set limitations, common standards and operational policies which protect civilian and respect IHL.
The second issue is the rapid development of new technologies and their possible weaponization.
Cyber weapons, autonomous weapon systems, are already used in today's armed conflicts and we only anticipate their use will exponentially grow. The rapid development of artificial intelligence will also affect warfare.
In the ICRC's view, the potential human cost and the legal implications of these means and methods of warfare deserves urgent attention. Technological advances may contribute to positive effects on the protection of civilians, such as weapons being used with more precision; military decisions being better informed; and military aims being achieved without the use of kinetic force or physical destruction. But importantly, new means of warfare also bring new risks for protected persons in armed conflict.
Clearly IHL applies to the development and use of new kinds of weapons and technological developments in warfare. However, their novel characteristics raise questions on how to comply with the rules. Disagreements among states about the very applicability of IHL to some of the new technologies, as well as disagreements or lack of clarity on the interpretation of the rules of IHL with respect to new technologies creates a legal uncertainty that is of concern. It is of particular concern for the ICRC because of the risk of permissive interpretations that will affected populations with insufficient protection.
For example, the development of autonomous weapon systems, including systems that incorporate artificial intelligence and machine learning raises particular risks.
For instance, what dangers would autonomous weapons, whose effects are unpredictable, raise in urban environments, where military and civilians and are often closely intermingled?
More broadly do we want life and death decisions in warfare, and the grave and uniquely human responsibility they involve, to be delegated to software, algorithms, machines?
We are encouraged there is a growing agreement towards a requirement to retain human control over weapons and the use of force. States need to come together to agree on the level and type of control needed in order to provide adequate protection.
Similarly, few States have clarified how IHL applies to cyber operations in armed conflict. We are grateful to those states who have done so, and encourage more states to explain how they interpret IHL so as to protect civilians from the potential human cost of cyber operations.
Thirdly, contemporary armed conflicts often involve acts of terrorism and counter-terrorism measures.
We are concerned about the increased impact that counter-terrorism measures have on impartial humanitarian action. We understand the legitimate concerns of States and even their obligation to protect their citizens against acts of terrorism. But certain measures, notably counter-terrorism legislation and sanctions, can criminalise and restrict our ability to carry out humanitarian action.
We were heartened in 2019 by the recent attempts of States to find a balance between their legitimate CT and IHL, most notably in the Security Council. The UN Security Council Resolutions 2462 and 2482 are important steps forward. In these resolutions, the Council decided that CT measures must be implemented "in a manner consistent with IHL", and urged States, when applying such measures, to take into account their effects on "exclusively humanitarian activities" carried out by "impartial humanitarian actors". The next step is to implement these resolutions to ensure that impartial humanitarian organizations are able to deliver and ameliorate suffering to communities impacted by armed conflict.
What we see in armed conflicts today is immense suffering and devastation. There is no room for complacency, because the international community has failed to protect innumerable men, women and children from the effects of armed conflict.
This sometimes leads to despondency, and lack of confidence in the law, in IHL as a factor of protection.
Yet it is absolutely critical that we maintain an accurate view of the relevance and protective impact of IHL. It is difficult: how do you show that a violation has not been committed? But we witness the daily implementation, respect, and use of IHL, and the difference it makes. Let me give just a few examples.
- Recent years have seen armed forces invest more in tracking civilian casualties and understanding their causes.
- There are many examples of States adjusting their targeting, their choice of munitions, timings, etc, to avoid indiscriminate or disproportionate attacks.
- Clearance of anti-personnel landmines, risk-education for affected communities and assistance to mine victims continue as States party to the landmine convention implement their obligations.
- Tens of thousands of conflict-related detainees have remained connected with their families; prisoners of war have been released and repatriated; and mortal remains have been returned to relatives.
- Many States have demobilized child soldiers.
- Non-State armed groups have made commitments against the recruitment and use of children in hostilities and against sexual violence.
- And daily, medical services belonging to governments and armed forces treat wounded adversaries solely based on medical need.
- We have more treaties, more jurisprudence, more examples of implementation by States and other groups, and a very high understanding in the public.
To address this challenge of the "crisis of confidence", the ICRC has started a range of projects to "change the narrative on IHL". For instance, our 'IHL in Action' database collects case studies of examples of compliance with IHL from across the world.
Lastly, if you permit me, I would like to say a word about the importance of upholding the law as such.
There is no doubt that the biggest challenge to IHL is not its lack of rules, but shortcomings in its respect. This often leads us to say that IHL must be respected not only be in word, but also in deed. It must not remain ink on paper. Let me turn this around for one moment. Words count, and it is important to respect IHL not only the battlefield, but to uphold it by recalling and reaffirming this precious normative framework.
Collectively we must be vigilant in guarding against the erosion of humanitarian law. Let us collectively preserve the acquis of the last 70 years.