COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS

1. COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS FOURTH COURSE ON IHL Washington, 28 January 2010

2. 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

4. The world in 2010

5. The ICRC in the world

6. A year ago, an armed conflict

7. GAZA, 2010

9. Port-au-Prince, Haïti, yesterday

12. RFL

13. 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

14. A BIT OF HISTORY 1859

15. INTERGOVERNMENTAL ORGANISATION , i.e. UN NGO • 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 = LEGAL STATUS

16. 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

17. Custom continues to exist 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

18. 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"

19. ICRC's mission statement (ctd) • It endeavours to prevent suffering … • by promoting and strengthening IHL • and universal humanitarian principles.

20. 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

21. A NEUTRAL INTERMEDIARY in all situations

22. 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.

23. 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

24. Armed Conflicts ? • ONLY TWO SORTS • Definitions?

25. Armed Conflicts • Only two • International • Non-International • Others ? "war against terror" ?

26. ICRC MANDATE The 4 Geneva Conventions ------------------- and Additional Protocole 1

27. IAC ? • Common Article 2 to the GC • AP I, Art. 1

28. ICRC's conventional mandate • In IAC & NIAC • Geneva Conventions & API • 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)

29. 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".

30. 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"

31. 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".

32. 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"

33. ICRC MANDATE The Statutes of the Red Cross and Red Crescent Movement ----------------- October 1986, 1998 & 2003 Article 5

34. Infra IHL Situations => Internal Violences = • Internal Disturbances • Internal tensions • "Other Situation of Violence" • "Any questions"

35. 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

36. 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". • Resolutionsof the International Red Cross Conferences (i.e. Resolution XIV of 10th IC, 1921, resolution VI of 24th IC, 1981)

37. 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"

38. 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

39. 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

40. 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,...)

41. 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;

42. 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"

43. 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

44. The 7 fundamental principles Humanity Impartiality Neutrality Independence Voluntary Service Unity Universality

45. 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

46. 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

47. 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

48. Modes of action Complementarityof 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.

49. 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

50. Activities of ICRC in AC & OSV Detention and others