International Humanitarian Law and the Challenges of Contemporary Armed Conflicts

30IC/07/8.4 Original: English 30TH INTERNATIONAL CONFERENCE OF THE RED CROSS AND RED CRESCENT Geneva, Switzerland, 26-30 November 2007 INTERNATIONAL HUMANITARIAN LAW AND THE CHALLENGES OF CONTEMPORARY ARMED CONFLICTS Document prepared by the International Committee of the Red Cross Geneva, October 2007 INTERNATIONAL HUMANITARIAN LAW AND THE CHALLENGES OF CONTEMPORARY ARMED CONFLICTS TABLE OF CONTENTS I. Introduction II. IHL and terrorism III. Procedural principles and safeguards for internment or administrative detention IV. The conduct of hostilities 1. General issues, in particular asymmetric warfare 2. The notion of "direct participation in hostilities" 3. Regulating the use of cluster munitions V. Non-international armed conflicts VI. Regulating private military and security companies VII. Occupation and other forms of administration of foreign territory VIII. Increasing respect for IHL: The role of sanctions Annexes: 1) Procedural Principles and Safeguards for Internment / Administrative Detention in Armed Conflict and Other Situations of Violence 2) Agenda of the 30th San Remo Round Table on "The Conduct of Hostilities: Revisiting the Law of Armed Conflict 100 Years after the 1907 Hague Conventions and 30 Years after the 1977 Additional Protocols" 3) Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts 30IC/07/8.4 1 Executive summary The purpose of this report is to generate reflection and debate on a number of current challenges in the field of international humanitarian law (IHL) identified by the International Committee of the Red Cross (ICRC) and to outline prospective ICRC action aimed at clarifying and developing IHL. The report follows up on a number of specific issues raised in a previous report on the same topic presented to the 28th International Conference of the Red Cross and Red Crescent in 2003 and gives an overview of new or emerging issues deserving discussion. While the report was primarily written to serve as a background document for the 30th International Conference of the Red Cross and Red Crescent, the ICRC hopes that its contents will be of interest to a wider readership as well. The Introduction describes the general context in which the report was written and the premises on which it was based. In the years that have elapsed since the 28th International Conference was held, the relationship between armed conflict and acts of terrorism, and the role of IHL in this connection, have continued to generate substantial debate, both among specialists and among the broader public. The need for a re-examination of the adequacy of IHL in dealing with terrorism is frequently mentioned without, however, any reference being made to specific deficiencies in the law. Chapter II of this report, IHL and terrorism, outlines different challenges relating to IHL and terrorist acts, the issue of how to qualify the fight against terrorism in legal terms and the status of various persons in this context. It provides the ICRC's current legal analysis of these issues, stressing that IHL as a whole is adequate. The report nevertheless recognizes that acts of terrorism pose some specific legal challenges and concludes that the fight against terrorism requires the application of a range of measures – investigative, diplomatic, financial, economic, legal, educational and so forth – spanning the entire spectrum from peacetime to armed conflict, and that IHL cannot be the sole legal tool relied on in such a complex endeavour. Chapter III focuses on an issue that has received considerable attention in connection with the fight against terrorism, namely: Procedural principles and safeguards for internment or administrative detention. This issue is, however, much wider in scope and calls for clarification more generally, in respect of all armed conflicts and other situations of violence. In 2005, the ICRC developed guidelines reflecting its institutional position on the matter (Annex 1). Chapter IV, The conduct of hostilities, is divided into three sections. It begins by reiterating the ICRC's view that the existing legal framework, consisting of both treaty law and customary international law, is on the whole adequate in dealing with present-day armed conflicts. It recognizes, however, that the concrete application of the treaty-based and customary rules that were identified in the ICRC's 2003 report as requiring clarification will probably present even greater challenges in today's environment, which is increasingly characterized by asymmetric warfare, owing in particular to the growing involvement of non- State armed groups, and by urban warfare. It concludes that these challenges cannot a priori be met by developments in treaty law. In such situations, it is generally not the rules that are at fault but the will or sometimes the ability of the parties to an armed conflict – and of the international community – to enforce them, in particular through criminal law. In the second section of this chapter, follow-up information is provided on the ICRC / TMC Asser Institute expert process, the purpose of which is to present a coherent interpretation of the notion of direct participation in hostilities under IHL. 30IC/07/8.4 2 The third section focuses on the human cost of the use of cluster munitions and the legal challenges these weapons pose for some of the core rules on the conduct of hostilities (the principle of distinction, the prohibition of indiscriminate attacks, the rule of proportionality in attack and feasible precautions). In the ICRC's view, there are rather strong arguments in favour of developing specific rules to regulate such weapons. These include the specific characteristics of cluster munitions, their history of causing immense suffering and the fact that IHL's general rules on the means and methods of warfare had only a rather limited effect in preventing these weapons from causing serious problems during and after armed conflicts. The majority of contemporary armed conflicts are not of an international character. The daily lives of many civilians caught up in these conflicts are ruled by fear and extreme suffering. The magnitude of the human suffering in such situations is of great operational concern to the ICRC. Ensuring better protection for persons caught up in non-international armed conflicts remains therefore a major priority for the ICRC. Chapter V, Non-international armed conflicts, outlines the ICRC's legal thinking subsequent to the publication of its 2005 Study on Customary International Humanitarian Law. The Study showed that many rules previously applicable in international armed conflicts are now binding as a matter of customary law in non-international armed conflicts as well. Despite the development of customary international law since the adoption of Additional Protocol II in 1977, a number of substantial challenges remain. Some of them are detailed in the present report. In addition, the question of respect for IHL in non-international armed conflicts continues to be of major concern to the ICRC. Work conducted in this regard since 2003 is summarized in this section (see also Annex 3). Over the last few years, an increasing number of tasks that were traditionally performed by official State security or military forces in wartime have been sub-contracted to private military or security companies (PMCs / PSCs). While the presence of these companies in conflict situations is not new, their numbers have increased and, more significantly, the nature of their activities has changed. Chapter VI, Regulating private military and security companies, explains that the ICRC's interest lies not so much in joining the debate on the legitimacy of the use of private companies in armed conflicts but rather in finding ways of ensuring better compliance with IHL by those companies when they are present. It thus focuses on the obligations of PMCs / PSCs and States in particular under IHL and describes the aims of an initiative taken by the Swiss government, in cooperation with the ICRC, to promote respect for IHL and human rights law by PMC / PSCs operating in conflict situations. This initiative was launched in 2006. Occupation law is considered unsuitable by some to the complexity of recent situations in which it is applicable, on the grounds that it does not sufficiently take into account developments in human rights law and that some of its rules constitute a hindrance to "transformative occupation." Moreover, recent experience has shown the necessity of clearly defining the legal framework regulating the administration of a territory by multinational forces or by an international civil administration and the particular relevance of IHL and occupation law in that context. Chapter VII, Occupation and other forms of administration of foreign territory, addresses these and related questions. Better implementation of IHL both in peacetime and during an armed conflict remains an ongoing priority for the ICRC. Chapter VIII, Increasing respect for IHL: The role of sanctions, focuses on an ICRC initiative to examine the role and the deterrent effect of sanctions against the perpetrators of serious violations of IHL, the nature and characteristics of those sanctions and the environment in which they are applied. 30IC/07/8.4 3 INTERNATIONAL HUMANITARIAN LAW AND THE CHALLENGES OF CONTEMPORARY ARMED CONFLICTS I. INTRODUCTION This is the second report on "International Humanitarian Law (IHL) and the Challenges of Contemporary Armed Conflicts" that has been prepared by the International Committee of the Red Cross (ICRC) for an International Conference of the Red Cross and Red Crescent. In the years that have elapsed since the first report was presented to the 28th International Conference in Geneva, in December 2003, the daily reality of armed conflict has, unsurprisingly, not changed. While a factual description of the various conflicts that are being waged around the world today is beyond the scope of this report, suffice it to say that war has continued, inexorably, to bring death, destruction, suffering and loss in their wake. Today, civilians still bear the brunt of armed conflicts.

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