The ICRC and the Implementation of International Humanitarian Law in Non-International Armed Conflicts
Author's Note
This article is a concise adaptation of a research project originally submitted by the author in 2013 for the Post Graduate Diploma in Human Rights Law at the National Law School of India University, Bangalore. It reflects the research and legal materials available at the time of the original study.
Introduction
International Humanitarian Law (IHL) is intended to protect persons affected by armed conflict and to limit the suffering caused by war. However, the effectiveness of humanitarian law depends not merely upon its observance during armed conflict, but also upon its implementation before, during and after conflict.
Implementation means giving the rules of humanitarian law their full effect. It therefore requires appropriate measures, including the dissemination and teaching of IHL, training of armed forces and other relevant personnel, adoption of national measures, and establishment of mechanisms necessary for compliance.
The International Committee of the Red Cross (ICRC) occupies a distinctive position in this process. Its mandate includes protecting and assisting people affected by armed conflict and promoting respect for, and implementation of, international humanitarian law.
This role is particularly significant in non-international armed conflicts, where applicable IHL includes Common Article 3 of the Geneva Conventions and, where applicable, Additional Protocol II, together with relevant customary IHL. The ICRC has a recognized right of initiative in such conflicts to offer its humanitarian services to the parties.
This article examines the role of the ICRC in implementing IHL in non-international armed conflicts, its principal humanitarian activities, its cooperation with States and other organizations, the mechanisms available for effective implementation, the limitations it faces, and measures that may strengthen its contribution to the protection of victims of armed conflict.
The Distinctive Position of the ICRC
The International Committee of the Red Cross (ICRC) occupies a distinctive position within the international humanitarian system. From its inception, it has sought to protect and assist victims of armed conflict through humanitarian action and by promoting the development, dissemination and respect of International Humanitarian Law (IHL).
Its special character derives from the responsibilities entrusted to it by the Geneva Conventions, their Additional Protocols and the Statutes of the International Red Cross and Red Crescent Movement. These responsibilities give the ICRC a recognized and distinctive position in the international humanitarian field.
The ICRC's work is guided by the fundamental principles of humanity, impartiality, neutrality and independence. These principles enable it to engage with parties to an armed conflict while maintaining its humanitarian character and seeking access to persons affected by conflict.
Its role is not confined to providing relief after hostilities have caused suffering. The ICRC also seeks to promote knowledge of IHL and encourage respect for humanitarian principles before and during armed conflict, thereby contributing to the prevention and reduction of unnecessary suffering. The dissemination of IHL can also have a longer-term humanitarian effect by promoting respect for human dignity and strengthening respect for humanitarian rules.
In non-international armed conflicts, this distinctive role assumes particular importance. Common Article 3 of the Geneva Conventions provides a legal basis for an impartial humanitarian body such as the ICRC to offer its services to the parties to the conflict. The parties are not obliged to accept the offer, but the ICRC's humanitarian engagement provides an important avenue for protection and assistance to persons affected by such conflicts.
Major Areas of ICRC Activity
The ICRC undertakes a wide range of humanitarian activities in situations of armed conflict. These activities are closely connected with its humanitarian character and its objective of protecting human dignity and alleviating the suffering of persons affected by conflict.
Dissemination of International Humanitarian Law:
The ICRC promotes knowledge and understanding of IHL among armed forces, authorities and the wider population. Dissemination is an important preventive measure because knowledge of humanitarian rules can contribute to greater respect for them during hostilities.
Visits to persons deprived of liberty:
The ICRC visits persons deprived of their liberty and seeks to assess their treatment and conditions of detention. Such visits can help identify humanitarian concerns and enable the ICRC to raise those concerns confidentially with the relevant authorities.
Protection and assistance to affected populations:
The ICRC provides or facilitates humanitarian assistance to populations affected by armed conflict, including medical and other essential relief where required.
Tracing missing persons and restoring family links:
The ICRC works to establish the fate and whereabouts of persons reported missing and assists in restoring and maintaining contact between separated family members.
Humanitarian dialogue:
The ICRC also places itself at the disposal of parties to a conflict to facilitate communication and dialogue concerning humanitarian concerns. Its neutral and independent approach is intended to enable such engagement even in difficult conflict environments.
Cooperation with Other Actors
The effective implementation of International Humanitarian Law cannot be achieved by the ICRC alone. It requires cooperation among States, humanitarian organizations and other institutions involved in the protection of persons affected by armed conflict. The dissertation therefore examines the complementary roles of several important actors.
States — High Contracting Parties:
States bear the primary responsibility for respecting and ensuring respect for their obligations under IHL. Important measures include disseminating the Geneva Conventions and other relevant instruments, adopting appropriate national legislation, training members of the armed forces, appointing qualified legal advisers and establishing procedures for preventing and responding to violations.
National Red Cross and Red Crescent Societies:
National Societies can support the implementation and dissemination of IHL through their local networks, humanitarian activities and cooperation with the ICRC. Their knowledge of local circumstances can also contribute to effective humanitarian action.
Protecting Powers:
The system of Protecting Powers provides a mechanism for supervising the application of humanitarian law in international armed conflicts. Where this mechanism is not available, the ICRC has historically undertaken important humanitarian functions, while maintaining its own independent and neutral character.
United Nations:
The United Nations has an important complementary role in promoting international peace and security and in responding to serious violations of humanitarian law. Cooperation between the UN and the ICRC can contribute to international efforts to protect persons affected by armed conflict.
The Media:
Although the media has no formal role in implementing IHL, it can contribute to public awareness of humanitarian issues and help disseminate knowledge of humanitarian principles, particularly during periods of tension and conflict. The dissertation recognizes the potential value of cooperation between humanitarian organizations and the media in promoting respect for human dignity.
Implementation: Prevention, Monitoring and Accountability
The effectiveness of International Humanitarian Law depends upon its implementation through practical measures taken before and during armed conflict. The existence of legal rules alone is insufficient; States and other relevant actors must take steps to ensure that those rules are understood, incorporated into national systems and respected in practice.
Prevention through dissemination and training:
An important preventive measure is the widespread dissemination and teaching of IHL. Armed forces and the general population should be made aware of humanitarian rules and principles so that they can be applied effectively when conflict occurs.
National implementation:
States are required to adopt appropriate legislative, administrative and practical measures to give effect to their humanitarian obligations. These may include translating the relevant instruments, disseminating their provisions, protecting persons and property covered by IHL, preventing misuse of protected emblems and providing appropriate guarantees to protected persons.
Military legal advisers:
The appointment and training of qualified personnel, particularly legal advisers within the armed forces, is an important element of implementation. Proper legal advice can assist commanders and military personnel in understanding and applying IHL during military operations.
Monitoring and humanitarian engagement:
During armed conflict, humanitarian organizations such as the ICRC can contribute through humanitarian visits, dialogue with parties to the conflict, representations concerning humanitarian concerns and assistance to affected populations. The ICRC's neutral and independent approach enables it to maintain humanitarian engagement with parties to conflict.
Accountability:
Effective implementation also requires appropriate measures to prevent and repress serious violations. The dissertation emphasizes the importance of national legislation and mechanisms capable of ensuring that violations do not go unaddressed.
The dissertation therefore emphasizes that implementation is a continuous process involving education, legislation, training, planning, humanitarian engagement and appropriate mechanisms for accountability. Careful planning and regular consultation among government authorities, humanitarian organizations and other institutions can contribute substantially to effective implementation.
Critical Assessment
The ICRC has made an important contribution to the implementation of International Humanitarian Law through its humanitarian activities, dissemination of IHL and engagement with parties to armed conflicts. Its neutral and independent character enables it to work in difficult circumstances and to maintain dialogue with parties that may otherwise be unwilling to cooperate with external organizations.
At the same time, the ICRC faces significant limitations. In non-international armed conflicts, the parties may have very different structures, objectives and levels of commitment to humanitarian norms. There may also be no effective authority capable of ensuring compliance with humanitarian obligations. Humanitarian workers themselves may face serious risks, while restrictions on access and continuing violations can make humanitarian action particularly difficult.
The ICRC's approach is primarily humanitarian and persuasive rather than coercive. Its effectiveness therefore depends considerably upon access, dialogue, cooperation and the willingness of parties to respect humanitarian principles. Its confidential and neutral approach is intended to maintain access to affected populations and facilitate dialogue with parties to armed conflicts.
Improving Implementation
The effective implementation of IHL requires action well before an armed conflict begins. States should ensure that humanitarian law is widely disseminated, incorporated into appropriate national legislation and integrated into the training and operational planning of their armed forces.
Particular importance should be given to the training of commanders, troops and military legal advisers, so that humanitarian considerations are appropriately integrated into military decision-making. Regular instruction, practical exercises and appropriate legal advice can assist personnel in applying IHL effectively during military operations.
States should also establish appropriate national mechanisms for preventing and repressing serious violations, protect the humanitarian emblems recognized under international law, and provide the necessary judicial and administrative safeguards for protected persons.
Cooperation between governments, the ICRC, National Red Cross and Red Crescent Societies, the United Nations and other relevant institutions can further strengthen implementation. Regular consultation and careful planning can help ensure that humanitarian obligations are translated into practical measures.
Ultimately, implementation must be regarded as a continuous process rather than an activity confined to periods of armed conflict. The stronger the preparation during peacetime, the greater the possibility of protecting human life and dignity when conflict occurs.
Conclusion
The implementation of International Humanitarian Law remains a fundamental requirement for the protection of human dignity during armed conflict. The existence of international legal instruments provides the necessary framework, but their effectiveness ultimately depends upon their translation into practical measures and responsible conduct.
The ICRC occupies a distinctive position in this process. Through its neutrality, independence and humanitarian mandate, it seeks to protect and assist victims of armed conflict, promote knowledge of IHL and encourage respect for humanitarian principles. Its work is particularly significant in non-international armed conflicts, where humanitarian needs can be extensive and implementation can be especially challenging.
The study demonstrates that the responsibility for implementing IHL cannot rest with the ICRC alone. States bear primary responsibility for fulfilling their international obligations, while military institutions, legal advisers, humanitarian organizations and other actors have important complementary roles. States and other parties to armed conflict are required to respect and ensure respect for IHL.
Effective implementation therefore requires a combination of knowledge, training, legislation, responsible command, humanitarian engagement and accountability. The ultimate objective is not merely to have humanitarian rules on paper, but to ensure that those rules are understood, respected and applied in practice.
The continuing work of the ICRC demonstrates that, even amid the difficulties of armed conflict, humanitarian action can contribute to the protection of human life and dignity and to greater respect for IHL.