The Swiss-ICRC project on Strengthening IHL Compliance Mechanisms

Summary of Remarks made on 23 October 2014 by Chris Harland, Legal Advisor at the ICRC’s Regional Delegation for the United States and Canada at the American Society of International Law’s panel on “Strengthening Compliance with International Humanitarian Law”

Introduction

Strengthening compliance with IHL is of utmost importance to the ICRC and may be said to lie at the very heart of ICRC action. Our operational presence in the field - like that of other humanitarian organizations - is in large part the result of needs created by the lack of compliance with IHL by the parties to armed conflicts. Our everyday engagement on the ground, in addition to providing protection and assistance to persons affected by armed conflict, aims to encourage the parties involved to better comply with this body of rules.

In addition, all of our work in the legal domain, which started with the drafting of the first Geneva Convention of 1864 (the 150th anniversary of which we are marking this year), is ultimately aimed at enabling better compliance with IHL for the benefit, including those who are not, or who are no longer, taking part in hostilities.

IHL has been relatively able in dealing with the need for normative changes over the last 150 years. The area in which much more needs to be done, and which is at the center of the Swiss-ICRC initiative, is how to improve compliance with IHL norms in practice.

In the broadest sense of the term compliance includes a range of activities. At one end of the spectrum is prevention. Activities in the area of prevention of IHL violations before an armed conflict occurs remain an ongoing obligation of States, as provided for in the 1949 Geneva Conventions, and in Additional Protocol I of 1977, when applicable.  However, the area in which there may be said to be inadequate progress, and which is the focus of the joint Swiss Government-ICRC initiative, is the need to enhance the effectiveness of mechanisms of compliance with IHL.

Existing IHL compliance mechanisms

First, an overview was undertaken of the existing IHL compliance mechanisms and why they do not perform in practice, namely the Protecting Power system and the Enquiry Procedure established in the 1949 Geneva Conventions, and to the International Humanitarian Fact-Finding Commission under article 90 of the First Additional Protocol to the 1949 Conventions.

Three broad conclusions may be drawn: 1) that these existing IHL compliance mechanisms have never or have rarely been used, 2) that they were crafted for international armed conflict only, whereas the majority of current armed conflicts are non-international in nature and, 3) that the compliance mechanisms of other international legal frameworks are not an adequate substitute for a dedicated IHL compliance system.

The reasons for which the existing IHL compliance mechanisms have not been utilized arguably lie - among other things - in the way in which they were configured, as well as in the lack of an appropriate institutional anchoring.  

The three existing mechanisms are based on the premise that States involved in an international armed conflict will have the capacity to propose to the other party, or agree with it, as the case may be, to trigger the mechanism in question. This approach is based on an expectation that is not likely to be fulfilled in the present day, and is perhaps due to the times in which the respective mechanisms were designed. No branch of international law dealing with the protection of persons that was developed subsequent to the Geneva Conventions relies exclusively on mechanisms that are thus configured.

Existing IHL compliance mechanisms also lack attachment to a broader institutional compliance structure. As mentioned, the Geneva Conventions and their Additional Protocols are an exception among international treaties related to the protection of persons in that they do not provide that States will meet on a regular basis to discuss issues of common concern and perform other functions related to treaty compliance.

The absence of such a structure means that specific compliance mechanisms lack the institutional support that may be necessary to ensure they are utilized, to facilitate the performance of their tasks, and to assist in any follow-up that may be appropriate.

The proposed new mechanism

   1.  Regular Meeting of States Parties to the Geneva Conventions

The central element of a new IHL compliance system is likely to be a regular Meeting of States Parties to the 1949 Geneva Conventions. This Meeting, the periodicity of which is to be determined, would serve as forum for regular dialogue among States on IHL issues. It would also serve as an anchor for certain compliance functions and bodies, as the case may be.

One such function is the periodic reporting of States on compliance with their IHL obligations. There is general agreement that a reporting function should be limited to States’ obligations under the 1949 Geneva Conventions, and of their three Additional Protocols (of 1977 and 2005, respectively), for States that are parties to the Protocols.

There was likewise general agreement that it should not involve an article-by-article review of the relevant IHL treaties, and that states would be first called on to submit a basic national report that would provide a baseline of information on a state’s implementation of its IHL obligations at the domestic level. This report would be updated at longer intervals, perhaps every four or five years.

In addition, every two years or so, states would submit more focused reports, either devoted to certain themes, or devoted to recent developments in state practice, including case-law, and specific issues encountered in the implementation of IHL. Whatever the option chosen, the biennial national reports would then be amalgamated into a single non-contextual report (“generic” or “analytical”, the latter including analysis of trends and recommendations for improvement), that would be discussed by the Meeting of States. The non-contextual nature of such a report and of the corresponding discussion has been very much stressed by states.

  1. Thematic discussions

There is general agreement among states that a thematic discussion function is useful and could serve a variety of purposes. These include: to ensure that states are better informed of current or emerging IHL issues, to enable a better mutual understanding of states’ legal and policy positions on current and emerging IHL issues, to enable exchanges of views on key legal, practical and policy issues related to a particular IHL theme, to develop a deeper understanding of IHL and of the practical measures taken by states to implement this body of norms, to strengthen existing networks by bringing together IHL experts from the different states, and to enable other potential beneficial flow-on effects.

It has been stressed in the consultations that specific sessions of the Meeting of States should be devoted to thematic discussions, and that linkages with the periodic reporting system should be considered, including in the identification of topics of common concern. In relation to scope, most states are of the view that thematic discussions should not aim at legal development, but should rather focus on IHL issues related to the application and interpretation of the law. Different views have been expressed on policy-related topics, but many participants believe that thematic discussions should also allow for an exchange of views among states on policy positions adopted with regard the interpretation and application of particular IHL obligations in practice.

While it has been emphasized that flexibility is needed with regard to the format and outcome of thematic discussions on IHL, it is widely understood that such discussions would involve an interactive panel format with government and outside experts as panelists, and that the preparation of an outcome document (at least a factual report of the proceedings), would be useful.  

  1. Fact-finding

Fact-finding, as a third possible compliance function, has generated widely divergent views in the consultation process thus far. It is hoped that agreement can be reached by states to postpone further examination of this issue for the Meeting of States itself, once it is established. In this context it should be noted that the treaties of IHL adopted since 1929 have included a fact-finding function in some shape or form, as evidenced by the Enquiry Procedure in the 1949 Geneva Conventions or the International Humanitarian Fact-Finding Commission, in the First Additional Protocol, previously mentioned.

Non-international armed conflicts

There is a general recognition that any new IHL compliance system should cover both international and non-international armed conflicts.  This raises the question of whether and how the system could improve compliance with IHL by non-State parties to non-international armed conflicts. This question is on the radar, but will have to be dealt with in the time ahead, having in mind the sensitivity which it inevitably generates.

ICRC’s future role

Participants recognize that the ICRC should have an important role to play in any new IHL compliance system, with the caveat, of course, that its operational role and its standard working modalities may not be affected.  The discussions held thus far have also acknowledged that the new system should not weaken, but should, on the contrary, be complementary to the International Conference of the Red Cross and Red Crescent, which takes place every four years.

Conclusions

Finally, two additional points. The first is that the new IHL compliance system being contemplated will not be legally binding, i.e. it will be voluntary in nature. States are not willing to reopen the existing treaties or to adopt new ones for this purpose. A key challenge in the discussions ahead and once the system is established, which we hope will happen, will be how to ensure its effectiveness. The second point is that the current Swiss-ICRC process provides a unique chance to improve the effectiveness of the IHL compliance system. Efforts in this direction have been made on several occasions in the past few decades, but none bore fruit.  Both the ICRC and the Swiss government are investing significant time, effort, and resources in facilitating the current process, and it is unlikely that a similar undertaking will be attempted in the foreseeable future. The successful conclusion of the process is therefore of great importance, and is a high priority both for us and our Swiss partners.