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COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS. FOURTH COURSE ON IHL Washington, 28 January 2010. FOURTH COURSE ON IHL. "Role of the ICRC in Armed Conflicts and other situations of violence around the world" Patrick Zahnd Regional Legal Advisor ICRC. The world in 2010. - PowerPoint PPT Presentation
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COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS
FOURTH COURSEON IHL
Washington, 28 January 2010
FOURTH COURSE ON IHL
"Role of the ICRC in Armed Conflicts and other
situationsof violence around the world"
Patrick ZahndRegional Legal Advisor
ICRC
The world in 2010
The ICRC in the world
A year ago, an armed conflict
GAZA, 2010
Port-au-Prince, Haïti, yesterday
RFL
EMERGENCY APPEALS 2010
Total: 983,2 millions CHF Africa = 38 %, Europe & Americas = 15 %
(Haïti will increase) Assistance = 58 % ; Protection = 19 %;
Prevention = 14 %; Cooperation = 9 % Top 10 operations = 58 %
Afganistan, Iraq, Sudan, DRC, Israel/OT, Pakistan, Somalia, Colombia, Yemen, Chad
A BIT OF HISTORY
LEGAL STATUS
NGONGO INTERGOVERNMENTAL INTERGOVERNMENTAL ORGANISATION , i.e. ORGANISATION , i.e.
UNUN
Swiss organisation 'sui generis' with international legal personality
Mandate in the Geneva Conventions - - Headquarters Agreement with over 70
countries
- Exemption of testimony granted by the ICTY, ICC, Rule 73
- Observer Status at the UN, 1990 and other IOs
=
INTERNATIONAL LEGAL PERSONALITY
Hybrid nature, int'l legal personality and status of its own;
Functions and activities mandated by States + found in international law;
Observer Status to the UNGA and various regional organisations;
> 80 HQ agreements with States; judicial immunity, testimonial privilege: ICTY, ICC, rule 76
Codification History 1864: First Geneva Convention 1907: Hague Regulations 1925: Geneva Gas Protocol 1929: Two Geneva Conventions 1949: Four Geneva Conventions 1954: Hague Cultural Property Convention 1968: Convention on the Non-Applicability of Statutory Limitations to
war crimes and crimes against humanity: 1972: Biological Weapons Convention 1976: ENMOD 1977: Additional Protocols I & II to the GC 1980: CCW and 3 Protocols 1993: Chemical Weapons Convention 1995: CCW, AP IV, Blinding Weapons 1996: CCW, Amended AP II 1997: Ottawa Convention 1998: ICC Statute 1999: AP II to the Hague Cultural Property Convention 2000: Optional Protocol on the CRC; 2001: CCW, Amended Art. 1; AP V, ERW 2005: Additionnal Protocol to the GCs (distinctive Red Crystal emblem) 2008: Convention on Cluster munitions, Oslo/Dublin
Cu
stom
continu
es to e
xist
ICRC's mission statement
"The ICRC is an impartial, neutral and independant organization…
Whose exclusively humanitarian mission…
Is to protect the lives and dignity of victims …
of armed conflicts and other situations of violence …
And to provide them with assistance"
ICRC's mission statement (ctd)
It endeavours to prevent suffering … by promoting and strengthening IHL and universal humanitarian principles.
ICRC's identity
Its raison d'être is to ensure respect, through its neutral and independant humanitarian work, for the lives, dignity and physical and mental well-being of victims of AC and OSV.
Meet the needs of the victims in accordance with their rights and the obligations incumbent upon the authorities
A NEUTRAL INTERMEDIARY
in all situations
Dual nature of ICRC's work
Operational: helping victims of AC & OSV
Legal: development and promotion of IHL & humanitarian principles;
Are linked: ICRC operates in the framework of law and IHL draws on the experience of operations.
Use of force
jus ad bellum: Legality of the use of force: UN Charter: Art. 2 Chapter VII Article 51 / agression / preemptive AC
Jus in Bello: applicable to AC whatever legality or legitimacy of the use of force
Armed Conflicts ?
ONLY TWO SORTSDefinitions?
Armed Conflicts
Only two
International Non-International
Others ? "war against terror" ?
IAC ?
Common Article 2 to the GCAP I, Art. 1
ICRC's conventional mandate
In IAC & NIAC
Geneva Conventions & AP I» i.e. visit PoWs, CIs & provide them with relief;» operate the Central Tracing Agency;» Substitute of Protecting Power
» Right of initiative in IAC & NIAC (common art. 3)
NIAC
No definition AC in Common Article 3 Cf. AP II, Preamble, para. 2 (HR) and para.4
(Martens Clause) Cf AP II, para. 2 "shall not apply to situations of internal disturbances and tensions, such
as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts".
NIAC / Definition
"A struggle, within a State, between 2 or more parties, who have recourse to armed force and where the hostile action on the part of each has a collective character and is marked by a measure of organisation"
ICRC MANDATENON-INTERNATIONAL
ARMED CONFLICTS (NIAC)
Common Article 3, para. 2:
"An impartial body, such as the ICRC, may offer its services to the parties to the conflict".
NIAC /Other Applicable Norms
Rules of Customary IHL- Cf. The ICRC Study, 2005
Non-derogable Human Rights Special Agreements (Art. 3) "Rules of IHL and the universally recognised humanitarian
principles be safeguarded at all times and in all circumstances"
Article 5
Infra IHL Situations
=> Internal Violences =
Internal DisturbancesInternal tensions"Other Situation of Violence"
"Any questions"
ICRC's Statutes - The role
Article 5 undertake the tasks incumbent upon it under the GC; Work for the faithful application of IHL take cognizance of any complaints based on alleged
breaches of IHL; act as a neutral institution in situations of AC and internal
strife to ensure protection and assistance (para 2, d) to work for the understanding, dissemination of IHL; to prepare any development of IHL; maintain & disseminate the RC Fondamental Principles to carry out mandates entrusted to it by the Int'l Conference
MANDATE NIAC / ID
Statutes, Art. 5, para. 2 (d) "to endeavour at all times – as a neutral institution whose humanitarian
work is carried out particularly in time of international and other armed conflicts or internal strife – to ensure the protection of and assistance to military and civilian victims of such events and of their direct results".
Resolutions of the International Red Cross Conferences (i.e. Resolution XIV of 10th IC, 1921, resolution VI of 24th IC, 1981)
ICRC's Statutory right of initiative
Article 5, para. 3: Right of initiative
"The ICRC may take any humanitarian initiative which comes within its role as a specifically neutral and independant institution and intermediary, and may consider any question requiring examination by such an institution"
Mandate outside NIAC and ID
Statutes, Article 5, para.
right of initiative founded on custom does not depend on the qualification of the situation cf. Turku Declaration, 1991 No obligation to do so
Offer of services
ICRC is convinced that its intervention to solve problems, eases tensions
Does not imply that serious humanitarian problems exist
Flexibility of the response and of the legal criteria
Effects
ICRC aknowledges need to maintain law and order, No effect on legal status of the parties, or status of
persons Strict confidentiality of reports and activities (cf. Rule
73, Abu Ghraib, Israel, Myanmar,...)
ICRC and other bodies of PIL
ICRC reserves the right to cite other bodies of law and other international standards protecting people;
In particular international Human Rights law, whenever it deems necessary;
Importance of Policy documents for coherence, predictabililty, credibility;
INTERNAL DISTURBANCES
IHL can only be invoked by analogy Human Rights applicable Norms applicable by FEHCL : Code of Conduct
(1979) & Basic Principles (1990), Customary norms (IA Court of HR).
Respect for Customary universally humanitarian Principles i.e. in Martens Clause
Respect "for non-derogable Human Rights even when the life of a nation is threatened by an exceptionnal public danger"
ICRC and the RC & RC Movement
ICRC belongs to the Movement Recognises National Societies; Coordinates international operations Guardian of the Fundamental Principles
Humanity, Independance, Impartiality, Neutraliy, Voluntary service, unity, universality
The 7 fundamental principles
HumanityImpartialityNeutralityIndependenceVoluntary ServiceUnityUniversality
Scope of work and criteria for taking action
Four different situations:
Help victims of IAC & NIAC.(heart of the mission)
In OSV: offer services (if seriousness of unmet needs, urgency of the situation, added value).
If a natural or technological disaster or a pandemic occurs in an area where the ICRC has an operational presence (emergency phase only);
Other situations: if unique contribution given its expertise and explicit mandate: tracing, disseminating IHL
Criteria for priorities
Victims' suffering and urgency of needs (impartiality, proportionality of needs).
ICRC's unique capabilities, experience, Legal basis; Impact on other activities
From comprehensive analysis to specific activities
Four main approaches
Protection Assistance Prevention: forster an environment conducive to respect
for lives & dignity of victims, influence those having direct or indirect impact on the fate of victims.
Cooperation
= Multidisciplinary approach Role of Humanitarian diplomacy
Modes of action
Complementarity of roles & Coordination of humanitarian activities with partners
Combination of modes of action (means or methods used to persuade authorities to fulfil their obligations):
Raising awareness of responsability: persuasion -> mobilization, -> public denunciation)
Support Substitution.
Guidelines for action
NIHA: Neutral, Independant Humanitarian Action.
Close to & in consultation & association with the victims. The issue of access;
Universal coherent approach, transparent and predictable;
Dialogue with ALL parties, ALL those involved, who may have influence.
In emergency phase, as long as necessary. Accountability
Activities of ICRC in AC & OSV
Detention and others
ACTIVITIES IN AC & OSV
Visits to persons detained for security reasons action to protect the population Disappearances and missings Food, medical and other relief Dissemination of IHL and FP Cooperation with the NS Good Offices
ICRC PROTECTIONACTIVITIES
Restoring Family LinksRestoring Family Links
Civilian populationCivilian population
Detention
PROTECTION OF
VICTIMS OF ARMED CONFLICT
ROLE OF THE ICRC
Visiting of POWs/Detainees
To a global needs approach
Build up a relationship of TRUST with authorities
establish a constructive dialogue with de-facto / de jure authorities
DETENTION
To collect informations …persuade for respect of physical and
moral integrity of detainees / prisoners Establish and maintain dialogue prevent dissapearances, torture, ill
treatment and bad conditions of detention Re-establish family links
CONDITIONS PRIOR TO ICRC VISIT
Access to all detainees, in the place where they are being held.
Talk to detainees of its choice in private (without witnesses)
Register the detainees' personal information Repeat its visits
CONFIDENTIALITY
Confidentiality is a method of work It facilitates access for ICRC to what the
authorities have a tendency to hide No pressure from public opinion The ICRC talks about what it does and
not about what it sees BUT, confidentiality is not absolute (as
a last resort and in extreme circumstances)
DETENTION
To collect information in order to be able to make recommendations to the detaining authorities in order to …
…persuade them to respect the physical and moral integrity of detainees / prisoners
Establish and maintain dialogue To put an end to and prevent
dissapearances, torture, ill treatment and bad conditions of detention
Re-establish family links
"CLIENTS" ?
Arrested on account of the situation of IV considered, rightly or wrongly, as real
/potential opponents by the detaining authority
Security detainees
Re-uniting FamiliesRe-uniting Families
ROLE OF THE ICRC
In 2009 the ICRC found more than 3,000 people sought by their families and received more than15.000 new tracing requests.
ROLE OF THE ICRC
Tracing of Missing Persons
Research of missing persons
Peru Colombia Guatemala Argentina, Chili Balkans Caucasus … Legal framework and operations + coordination
ROLE OF THE ICRC
Water Supply
ROLE OF THE ICRC
Medical Support
Economic Security
DISSEMINATION TO THOSE INVOLVED
IN ARMED CONFLICT
ROLE OF THE ICRC
Dissemination
ROLE OF THE ICRC
Good Offices
Role of ICRC Regional Delegations
Dialogue and cooperation with States Political support for humanitarian agenda Respect IHL at national level: implementation:
Legislations, Armed Forces, Education; Competence, expertise
Influence of Academics and researchers
Prevention - 2
Ensure respect and humanitarian diplomacy: Legal: IHL development Operational Financial
Support to the National Society
More information
www.icrc.org
Thank you
Questions?
