This March 20 NYU School of Law speech by ICRC President Peter Maurer provides a comprehensive look at the state of the contemporary battlefield and the challenges facing humanitarian actors. Essential reading, not just as an insight on the operational realities we face every day in the field, but also as a complement to the legal and not-so academic debates we are featuring in our on-going IHL Challenges Series.
Challenges of the evolving battlefield: reflections from a humanitarian perspective
It is a very special moment for the ICRC, as the organization is celebrating its 150th anniversary. An anniversary represents a great opportunity to gather with friends and celebrate. It is also an opportunity to reflect about the history and legacy of this great organization and future challenges.
The ICRC is a famously neutral and independent organisation working to ensure humanitarian protection and assistance to victims of armed conflict and other situations of violence, with a mandate rooted in international humanitarian law. Its history and activities has been shaped by several features over the century. Founded as a charitable organization under Swiss law, mandated by governments to fulfil a neutral, impartial and independent mission in favour of victims of war, providing life-saving assistance and protection to millions of victims of armed conflict in the world and engaged with numerous weapon bearers in preventing violations of IHL in many of the most violent armed conflicts. The ICRC prompted the creation of the first worldwide humanitarian movement composed of over 180 national societies of the Red Cross and Red Crescent. It is also at the source of a whole branch of international law that is now enshrined in the most widely ratified international treaties.
The ICRC pre-dated the development of human rights institutions. While interacting with the new institutions and accompanying their efforts, it has remained distinct in its mission, methods and activities. The core humanitarian mission of the ICRC is to provide immediate impartial life-saving assistance and protection to all victims of armed conflict and other situations of violence, working in close cooperation with governments and National Societies as well civil society organizations, UN agencies and the affected communities.
To succeed in this demanding environment, the ICRC has learned to engage in a neutral manner with all arms bearers in times of armed conflicts to ensure timely access to vulnerable populations and provide the necessary assistance and protection. It has learned to maintain a striclty need-based and impartial approach to its assistance and to remain as close as possible to the victims of armed conflicts and other situations of violence. It has established and maintained its own independent protocols of access based on the consent of the parties concerned and refrained from the use of military escorts. It today retains the necessary flexibility to adapt its humanitarian response to the evolving needs of the population in times of crisis by building over time a multi- dimensional operational capability in terms of emergency trauma care and other health services, nutrition, water and sanitation, rehabilitation, psycho-social care, monitoring of detention facilities, and family reunion. Importantly, the organization continuesto further develop the operational, policy and legal frameworks of its activities, in cooperation with governments, national Red Cross and Red Crescent societies as well as leading academic and policy centers.
In its operational, legal and policy challenges today, and with the other actors in the humanitarian sector, the ICRC is facing several challenges: the fragmentation of armed groups complicating negotiations of access to vulnerable populations; new types of situations of internal violence involving organized crime and requiring a greater access to victims of urban and narco-violence; the expanding pool of relief actors, from NGOs to emerging donors that have changed the landscape of humanitarian action integrating new dimensions and values to traditional relief operations, and the development of new weapons, including robotics, and cyber technologies putting an ever-expanding distance between the battlefield and the targeting officers;
With my remarks on the challenges of the evolving battlefield – and by that I mean primarily the legal challenges faced by the ICRC in its humanitarian operations around the world – I would like to discuss a series of questions in one specific area of our activity. Many of those questions don't have clear-cut answers, at least not yet. But if it is true that a man is to be judged by his questions rather than by his answers, this may not be a bad thing.
Allow me to start by citing the rather alarming words of a quite remarkable man: "If the new and frightful weapons of destruction, which are now at the disposal of nations seem destined to abridge the duration of future wars, it appears likely, on the other hand, that future battles will only become more and more murderous." These words are as striking today as they were when written by Henry Dunant, one of the founding fathers of the ICRC, in the late 19th century. They reflect the anxiety of the time toward the development of new weapons such as artillery and other methods of warfare, which imposed a huge toll on infantries and cavalries utterly exposed across traditional battlefields.
Henry Dunant's warning about the possible humanitarian consequences of weapon development resonated as much 150 years ago as it does now. Indeed, various aspects of the conduct of hostilities posed similar concerns and challenges in the 19th century as they do in the 21st. And various initiatives at the time aimed to address such concerns.
One of the most significant was the St. Petersburg Declaration of 1868, which was the first formal agreement prohibiting the use of certain weapons of war. The spirit of the Declaration – which helped lay the foundations of contemporary IHL – is certainly as important now as it was then. The Lieber Code is another example, also written exactly 150 years ago – instructions signed by President Abraham Lincoln to the Union Forces during the US Civil War, dictating how soldiers should conduct themselves in wartime. As a compilation of the existing customary laws of war, one of its main aims was to put limits on the methods and means of warfare, and to insist for example on the humane and ethical treatment of prisoners of war and civilians in occupied areas.
Moreover, Henry Dunant's vision of humane treatment for sick, wounded and captured soldiers on both sides of the frontline remains the bedrock of humanitarian action as much today as it was 150 years ago. The desire and ambition to uphold human dignity, even in the midst of armed conflict, must remain as fundamental to the humanitarian response around the "battlefields" of Syria or Mali or Afghanistan today as it was in Solferino or Gettysburg back then.
That said, there have of course been some profound changes in the nature of armed conflict over the past century and a half, both in the way wars are fought and the impact they have on people. While IHL has proven to be an adaptable legal framework for the protection of victims of armed conflict, it has faced some daunting challenges. The crucial question is how it should evolve within its environment, while respecting the inherent balance between humanitarian imperatives and military necessity in view of the more aspirational human rights norms and the growing role and impact of non-state armed groups.
Changing nature of armed violence
Unlike in Henry Dunant's time, armed conflicts involving two clearly identifiable armies facing each other on a neatly drawn out battlefield are now the exception rather than the rule. The decline in the number of international armed conflicts, especially since the end of the Second World War, has been counterbalanced with the rise in evermore complex non-international armed conflicts, and in recent years with the exponential rise in other types of armed violence below the threshold of IHL. Lines between the parties, between combatants and civilians, and indeed between types of armed violence have become increasingly blurred. And the concept of the "battlefield" has become an increasingly nebulous one.
In my first few field missions upon assuming my current position last year – to Afghanistan, Syria and Mali – I was struck by what this blurring of lines means in reality. The so-called "battlefield" could be almost anywhere at any time, often in densely populated urban areas, where combatants and civilians mingle together and may be indistinguishable, and where the victims are very often those who just happen to be in the wrong place at the wrong time. At precisely what point armed violence reaches the level of intensity of an armed conflict (as it did at a certain moment in Syria) may also be hard to define as periods of intense fighting are following periods of relative tranquillity.
The interplay of IHL and human rights law – in particular when armed conflict and other forms of violence merge or coexist in the same context – can present challenges to knowing which rules apply and where, for example with regard to the use of force. Moreover, some States and non-State armed groups will seek advantage from any ambiguity that may exist to selectively apply whichever rules allow them the broadest scope of action. Yet, the two branches of law are governed by the same overriding principle: that each individual has the right to be protected against inhumane treatment. The primacy of the law must never be to the detriment of the health and dignity of people.
With this point of departure guiding its actions, the ICRC does need to find the proper legal framework to guide its operations dealing with the humanitarian consequences of arrest, detention, displacement and the use of force in situations of armed violence. Clearly, IHL is applicable only to situations of armed conflict, as understood in international law, i.e. in situations in which states and/or armed groups resort to armed force against each other. IHL does not apply outside armed conflict situations.
At the same time, the humanitarian consequences of armed violence may be just as serious if not more so in situations short of an armed conflict. The phenomenon of drug-related crime in Latin America, for example, kills several thousands of people each year. The violent unrest associated with the still-unfolding 'Arab Spring' is another. Other parts of the world are also expected to be increasingly affected, fuelled in part by population growth and rapid urbanisation. In situations of armed violence that do not qualify as traditional armed conflicts, the ICRC engages on the basis of an offer of service to the respective authorities given to it in the Statutes of the International Movement of the Red Cross and Red Crescent rather than based on its mandate in the Geneva Convention.
It is also interesting to reflect on why an organization such as the ICRC can provide an added value in such situations. The specific experience and expertise of the ICRC in addressing the humanitarian consequences of violence on populations play a significant role in its engagement with various actors of urban or narco-violence. Yet, the challenge of knowing how to engage most effectively in, for example, concentrated urban areas characterised by violent criminal gangs, lawlessness, and extreme poverty cannot be overestimated. An extremely pragmatic approach is required, balancing operational, political and legal considerations. The ICRC was already engaged in different activities in different countries – mainly in Latin America – including medical and first aid, detention-related activities and support to National Societies. Yet the scale of the violence and its consequences in North Africa and the Middle East were a catalyst for more systematic and effective intervention by the ICRC in this domain.
The traumatic events of 9/11 and its aftermath has also been a major test for the ICRC. The polarisation of international relations and the humanitarian consequences of the so-called "global war on terror" have posed important operational and policy challenges. Indeed, this took the concept of the "battlefield" to the extreme – meaning a global battlefield justifying the targeting and/or detention of suspects or perpetrators anywhere in the world. This could, potentially, permit a suspect to be targeted militarily – possibly with civilian collateral damage in any location on the planet, independent from that capacity of the State to arrest, detain and prosecute this individual through normal law enforcement mechanisms. Of course, there might well be overriding legal and political considerations for avoiding such a course of action.
The blurring of counter-terrorism operations and the conduct of hostilities in times of war, and the different legal frameworks governing them, has tended to seriously undermine the construct of IHL, and to cause problems particularly when the term "terrorism" is manipulated for ulterior political motives. This prompted the ICRC to focus on the reaffirmation of certain aspects of the law, while accepting the need to clarify or develop other aspects too – such as procedural safeguards for internment or administrative detention – as long as existing legal safeguards are not weakened. I will return shortly to the ICRC's on-going initiatives in terms of strengthening of the law.
A second challenge is the phenomenon of non-state actors, which has – and will continue to have – a profound influence on the "battlefields" of contemporary conflict. My visits to Afghanistan and Syria, to Colombia and Myanmar brought home to me the enormity of this challenge, both in terms of its repercussions on the international legal system, and in terms of the difficulties for the ICRC to engage in dialogue with all parties to an armed conflict, which is a central feature of its particular humanitarian approach. The splintering of non-state armed groups – in some contexts to a confusing mêlée of sometimes dozens of mutating entities – is one aspect of this. And when armed actors are motivated by crime or banditry, it is all the harder to talk to them about their legal obligations to protect civilians.
New non-state armed actors are continuously emerging, both on a national and transnational level, who are becoming increasingly involved – directly or indirectly – in situations of armed conflict and other situations of violence. The spectrum of these actors is very broad, encompassing a range of identities, motivations and varying degrees of willingness, and ability, to observe IHL and other international law standards. Certain organised armed groups, private military and security companies, transnational corporations, urban gangs, militias and a huge variety of transnational criminal entities – including so-called "terrorist" groups and pirates – all require scrutiny in this regard. Identifying and understanding these actors and their characteristics is a fundamental prerequisite to better addressing the challenges arising from their involvement in modern armed conflict or other situations of violence, in particular the challenge of trying to ensure better protection of the people affected by such conflict.
With regard to non-State armed groups, it is important to note that IHL is a critical legal framework specifically designed to regulate the conduct of hostilities as well as the treatment of civilians and captured belligerents. Common Article 3 of the Geneva Conventions and the provisions of the Second Additional Protocol of 1977 remain central points of reference, as well as customary IHL rules. At the same time, other norms may be applicable to the behaviour of members of non-state armed groups, in particular under national laws, which often incorporate international criminal law and fundamental human rights obligations into the domestic legal order. However, determining whether a non-State armed group constitutes a "party" to an armed conflict for the purposes of Common Article 3 can be complicated, mainly because of lack of clarity over the precise facts and, sometimes, because governments deny that they are involved in a non-international armed conflict at all.
When non-State armed groups are designated as "terrorist" – potentially criminalising humanitarian engagement with them – this raises particular concerns for a neutral, independent organisation like the ICRC. Under IHL, the ICRC must be allowed to offer its services to any party to an armed conflict. In situations other than armed conflicts, this offer of services is based on its mandate under the Statutes of the International Red Cross and Red Crescent Movement. Its criteria for offering its services in both sets of circumstances are strictly determined by gaining humanitarian access to those in need and in no way imply political recognition of any given group or granting legitimacy to it. In this regard, all measures that effectively hamper contact by humanitarian agencies with organised non- State armed groups are counter-productive.
It still remains important to examine whether existing rules of IHL are adequate to deal with non-State actors in situations of armed conflict, or whether further regulation is needed. If so, should new legal rules, standards or best practices be developed to better accommodate new actors within the framework of humanitarian law? And, most crucially, how can better compliance with IHL be ensured by non-State actors in armed conflict, who currently have little legal or practical incentive to do so? It is also important to clarify what types of rules apply to armed actors in situations of violence short of an armed conflict.
Changing means and methods of warfare
The third key challenge to IHL, namely the changing means and methods of warfare, the issue of new technologies is of course centre stage in the international spotlight right now. The deep controversy around the increasing use of unmanned combat aerial vehicles (UCAVs), combat drones in other words, in places like Pakistan and Yemen has produced two opposing camps. Simply put, defenders of drones say their relative precision greatly minimises the potential for collateral damage – the unintentional killing of innocent civilians – and anyway are only used as a last resort. Critics, on the other hand, say drone strikes can constitute extra-judicial killing, especially outside conflict zones, and that hundreds of civilians have died in such strikes.
The use of drones has raised a number of issues that we need to consider separately. For a start, UCAVs are, in ICRC views, lawful weapons under IHL. They are not expressly prohibited in an international treaty nor have they been considered as inherently indiscriminate or being inherently perfidious. In that sense, they are not different from other weapons of war such as ground-based or sea-based artillery. Advanced weapon systems nowadays require complex networks of actors to relay targeting information to the person actually ordering the attack. Increasingly, the persons firing the missile is no longer sitting with the weapon or have no visual contact with the target. And whereas artillery usually requires multiple rounds to ensure a target is hit, it is true that drones usually fire just one or two missiles.
Although remote controlled weapons systems such as drones allow combatants to be physically absent from the "battlefield", a human operator is still required to activate, direct and fire the missile, and as such is responsible and accountable under IHL. The need to respect the principles of distinction, proportionality and the obligation to take all necessary precautions in attack is just as fundamental in the use of remotely controlled weapons as with traditional ones.
The capacity to comply with the general rules of IHL is more of a concern with automatic and autonomous weapons systems, where the ability to distinguish combatants from civilians, and military objectives from civilian objects, is quite questionable. The automation of weapon systems increasingly imposes linear approaches to targeting and proportionality analysis, pulling human judgement out of the planning and implementation of military attacks. Furthermore, tactical approaches under these new computer-based weapon systems, such as the use of “signature strikes”, tend to subject from the outset the legal interpretation of discrimination, proportionality or precautionary requirements under IHL to the particular parameters of the weapons, rather than imposing clear limitations on their uses in concrete circumstances. The question of responsibility and liability becomes all the more critical.
These questions become even more complex when such weapon systems are deployed against individuals who are directly participating in hostilities, but from the territory of a non- belligerent state. Would this be done with recourse to the rules of IHL or rather those of law enforcement? The ICRC, for one, would argue strongly for the latter.
For the ICRC, it always has been and always will be important to engage in lively dialogue with States, including the most powerful ones, about where the line of unacceptable harm should be drawn. To do this, we need to have strong arguments about the humanitarian consequences of certain means and methods of warfare, including solid first-hand data collected in our field operations. We have been able to do this convincingly and effectively with regard to a range of weapons – including anti-personnel mines, cluster munitions, chemical weapons and even nuclear weapons, among others – and also with regard to the unlawful use of some conventional weapons. Indeed, the massive circulation and widespread availability of arms and ammunition – and the impact this has on civilians after as well as during armed conflicts – is a key factor behind the ICRC's on-going efforts to see the adoption of a strong and effective Arms Trade Treaty, one that sets strict criteria for all transfers of all conventional arms.
Drones aside, another area of concern is of course cyber warfare, which has potentially devastating humanitarian consequences. For example, cyber attacks against airport control and other transportation systems, dams or nuclear power plants are technically possible, and could result in significant civilian casualties and damage. For the sake of brevity on what is undoubtedly a complex issue, the ICRC's position (which is widely accepted) can be summarised, as one clearly showing that IHL does apply when cyber attacks are part of an armed conflict. That said, there is a definite need for further clarification of precisely how the established humanitarian rules apply in this particular context. This is due to particular challenges such as the concealment of an attacker's identity or identities, possibly in several different countries, and the fact that an attack may be launched from something as simple as a cell phone – making the distinction between what is military and what is civilian even more difficult. The ICRC is continuously following the rapid developments in this domain and contributing to substantive discussions in a variety of fora – again, pushing for the application of rules of IHL through the lens of humanitarian impact, albeit still potential humanitarian impact.
Just as types of weapons are changing, so too are the environments in which they are often used. As I mentioned earlier, the growing number of military operations conducted in densely populated urban areas, often using explosive weapons with wide area impact, is a major humanitarian concern. I saw the impact of this myself in the towns and cities of Syria that I visited last year – the utter devastation of homes, hospitals, and infrastructure, resulting in a level of suffering that almost defies description. Of course Syria is just one example among numerous others. At the same time, the nature of modern armed conflicts is becoming increasingly asymmetric, with differences between belligerents – especially in terms of technological and military capacities – evermore pronounced. Compliance with the rules of IHL may be perceived as beneficial to one side of the conflict only, while detrimental to the other. At worst, a militarily weak party – faced with a much more powerful opponent – will contravene fundamental rules of IHL in an attempt to even out the imbalance. If one side systematically breaks the rules, there is a risk that the situation quickly deteriorates into a free-for-all. Such a downward spiral would defy the fundamental purpose of IHL – to alleviate suffering in times of war.
Another challenge in these environments, which I also touched on earlier, is the increasing difficulty in distinguishing between combatants, who may be lawfully attacked, and civilians, who are protected against attack under IHL unless and for such time as they directly participate in hostilities. Since neither the Geneva Conventions nor their Additional Protocols spell out what precisely constitutes "direct participation in hostilities", the ICRC already produced a substantial guidance document on this issue in 2009, providing practical recommendations on the interpretation and application of IHL in this domain.
But various crucial questions remain with regards to the conduct of hostilities. For example, are applicable IHL rules sufficient to identify under which circumstances explosive weapons with wide area impact might be used in densely populated areas? Should a higher standard be required for the verification of targets and their surroundings or for the issuance of warnings to the civilian population? Perhaps further legal clarification is required, but if so, how can it feasibly be monitored and enforced?
Challenge of compliance and the way forward
Despite theses challenges exposed above, it remains the ICRC's firm belief that the main problem is not inadequate law, but rather insufficient political will to implement the law. Clearly, it is the primary responsibility of parties to an armed conflict to respect and ensure respect for IHL. This is spelled out in Common Article 1 of the 1949 Geneva Conventions. At the same time, this responsibility brings with it the obligation on States to adopt a range of appropriate legislative, administrative and practical measures. Proper training and command supervision within the armed forces, implementing prohibitions or restrictions on certain means of warfare, and putting in place mechanisms and procedures to assess the conformity of new or existing weapons with IHL are essential aspects of those obligations.
Here, the ICRC provides important support to authorities, for example, to incorporate IHL into national legislation and into army training manuals, or to revise rules of engagement in order to limit risks for civilian populations and prevent abuses. In so doing, it contributes to strengthening accountability for violations, while respecting the sovereignty of States and boosting national capacity building. At the same time, for the ICRC's approach to be effective and credible it must remain consistently distinct from any kind of political processes – be they peace processes or political negotiations, the human rights agendas of various organisations, military or peace operations, judicial investigations and prosecutions. Yet the legitimate questions that arise over certain aspects of IHL – particularly in situations of non-international armed conflict – do reconfirm the need for clarification in some areas, and for strengthening of the law in others.
Important efforts in this regard are already underway. Special impetus came from the 31st International Conference of the Red Cross and Red Crescent in 2011, which adopted a key resolution on "Strengthening legal protection for victims of armed conflicts", based on the ICRC's two-year study on the issue and subsequent consultation process with States. Beginning with the priority areas of protection of persons deprived of their liberty in relation to non-international armed conflicts, and international mechanisms to monitor compliance with IHL, the ICRC is now pursuing consultations with States and other key stakeholders on a range of options and recommendations aimed at strengthening legal protection in these domains. With regard to enhancing compliance with IHL, a joint Swiss-ICRC initiative to this end has gained momentum in recent months, with increasing numbers of States engaging in substantive discussions on this issue. With regard to the protection of persons deprived of their liberty in relation to non-international armed conflicts, the ICRC has thus far held three extremely productive regional consultations with government experts. A fourth one is upcoming in April.
Such initiatives are of course in parallel with the ICRC's daily work of neutral and independent humanitarian action in the midst of armed conflict, speaking with both State and non-State armed groups, urging them to comply with the rules of IHL. This is where the issue of compliance can be a matter of life or death – when negotiating access for ambulances to evacuate the wounded and sick, for example, or urging respect for the protected status of hospitals, their staff and patients. This is where the purpose of the law is translated into a meaningful reality and where history continues to play out in contemporary conflicts and inform the humanitarian response to it. Regardless of technological advances, polarised politics and legal dichotomies, we will always need those who keep the spirit of the law and of humanitarianism alive in the "battlefields" of today and tomorrow.