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

FOURTH COURSE ON IHL 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 The world in 2010

The ICRC in the world The ICRC in the world

A year ago, an armed conflict A year ago, an armed conflict

GAZA, 2010 GAZA, 2010

Port-au-Prince, Haïti, yesterday Port-au-Prince, Haïti, yesterday

RFL RFL

EMERGENCY APPEALS 2010 4 Total: 983, 2 millions CHF 4 Africa = 38 %, EMERGENCY APPEALS 2010 4 Total: 983, 2 millions CHF 4 Africa = 38 %, Europe & Americas = 15 % (Haïti will increase) 4 Assistance = 58 % ; Protection = 19 %; Prevention = 14 %; Cooperation = 9 % 4 Top 10 operations = 58 % Afganistan, Iraq, Sudan, DRC, Israel/OT, Pakistan, Somalia, Colombia, Yemen, Chad

A BIT OF HISTORY A BIT OF HISTORY

LEGAL STATUS NGO INTERGOVERNMENTAL ORGANISATION , i. e. UN Swiss organisation 'sui generis' with LEGAL STATUS NGO INTERGOVERNMENTAL ORGANISATION , i. e. UN 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 4 Hybrid nature, int'l legal personality and status of its own; INTERNATIONAL LEGAL PERSONALITY 4 Hybrid nature, int'l legal personality and status of its own; 4 Functions and activities mandated by States + found in international law; 4 Observer Status to the UNGA and various regional organisations; 4> 80 HQ agreements with States; 4 judicial immunity, 4 testimonial privilege: ICTY, ICC, rule 76

Codification History 4 4 4 4 1864: First Geneva Convention 1907: Hague Regulations 1925: Codification History 4 4 4 4 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 Custom continues to exist 4 4 4 4

ICRC's mission statement 4 ICRC's mission statement 4"The ICRC is an impartial, neutral and independant organization… 4 Whose exclusively humanitarian mission… 4 Is to protect the lives and dignity of victims … 4 of armed conflicts and other situations of violence … 4 And to provide them with assistance"

ICRC's mission statement (ctd) 4 It endeavours to prevent suffering … 4 by promoting ICRC's mission statement (ctd) 4 It endeavours to prevent suffering … 4 by promoting and strengthening IHL 4 and universal humanitarian principles.

ICRC's identity 4 Its raison d'être is to ensure respect, through its neutral and ICRC's identity 4 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. 4 Meet the needs of the victims in accordance with their rights and the obligations incumbent upon the authorities

A NEUTRAL INTERMEDIARY in all situations A NEUTRAL INTERMEDIARY in all situations

Dual nature of ICRC's work 4 Operational: helping victims of AC & OSV 4 Dual nature of ICRC's work 4 Operational: helping victims of AC & OSV 4 Legal: development and promotion of IHL & humanitarian principles; 4 Are linked: ICRC operates in the framework of law and IHL draws on the experience of operations.

Use of force 4 jus ad bellum: Legality of the use of force: 8 Use of force 4 jus ad bellum: Legality of the use of force: 8 UN Charter: Art. 2 8 Chapter VII 8 Article 51 / agression / preemptive AC 4 Jus in Bello: applicable to AC whatever legality or legitimacy of the use of force

Armed Conflicts ? 4 ONLY TWO SORTS 4 Definitions? Armed Conflicts ? 4 ONLY TWO SORTS 4 Definitions?

Armed Conflicts 4 Only two International 8 Non-International 8 4 Others ? Armed Conflicts 4 Only two International 8 Non-International 8 4 Others ? "war against terror" ?

IAC ? 4 Common Article 2 to the GC 4 AP I, Art. 1 IAC ? 4 Common Article 2 to the GC 4 AP I, Art. 1

ICRC's conventional mandate 4 In IAC & NIAC 8 Geneva » » » Conventions ICRC's conventional mandate 4 In IAC & NIAC 8 Geneva » » » Conventions & AP I i. e. visit Po. Ws, CIs & provide them with relief; operate the Central Tracing Agency; Substitute of Protecting Power » Right of initiative in IAC & NIAC (common art. 3)

NIAC 4 No definition AC in Common Article 3 4 Cf. AP II, Preamble, NIAC 4 No definition AC in Common Article 3 4 Cf. AP II, Preamble, para. 2 (HR) and para. 4 (Martens Clause) 4 Cf AP II, para. 2 4 "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 4 NIAC / Definition 4"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 MANDATE NON-INTERNATIONAL ARMED CONFLICTS (NIAC) 4 Common Article 3, para. 2: 4 ICRC MANDATE NON-INTERNATIONAL ARMED CONFLICTS (NIAC) 4 Common Article 3, para. 2: 4 "An impartial body, such as the ICRC, may offer its services to the parties to the conflict".

NIAC /Other Applicable Norms 4 Rules of Customary IHL- Cf. The ICRC Study, 2005 NIAC /Other Applicable Norms 4 Rules of Customary IHL- Cf. The ICRC Study, 2005 4 Non-derogable Human Rights 4 Special Agreements (Art. 3) 4 "Rules of IHL and the universally recognised humanitarian principles be safeguarded at all times and in all circumstances"

Article 5 Article 5

Infra IHL Situations => Internal Violences = 8 Internal Disturbances 8 Internal tensions 8 Infra IHL Situations => Internal Violences = 8 Internal Disturbances 8 Internal tensions 8"Other Situation of Violence" 4"Any questions"

ICRC's Statutes - The role Article 5 8 8 8 8 undertake the tasks ICRC's Statutes - The role Article 5 8 8 8 8 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 4 Statutes, Art. 5, para. 2 (d) MANDATE NIAC / ID 4 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". 4 Resolutions of the International Red Cross Conferences (i. e. Resolution XIV of 10 th IC, 1921, resolution VI of 24 th IC, 1981)

ICRC's Statutory right of initiative 4 Article 5, para. 3: Right of initiative ICRC's Statutory right of initiative 4 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 4 Statutes, Article 5, para. right of initiative founded Mandate outside NIAC and ID 4 Statutes, Article 5, para. right of initiative founded on custom 8 does not depend on the qualification of the situation 8 cf. Turku Declaration, 1991 8 No obligation to do so 8

Offer of services 4 ICRC is convinced that its intervention to solve problems, eases Offer of services 4 ICRC is convinced that its intervention to solve problems, eases tensions 4 Does not imply that serious humanitarian problems exist 4 Flexibility of the response and of the legal criteria

Effects 4 ICRC aknowledges need to maintain law and order, 4 No effect on Effects 4 ICRC aknowledges need to maintain law and order, 4 No effect on legal status of the parties, or status of persons 4 Strict confidentiality of reports and activities (cf. Rule 73, Abu Ghraib, Israel, Myanmar, . . . )

ICRC and other bodies of PIL 4 ICRC reserves the right to cite other ICRC and other bodies of PIL 4 ICRC reserves the right to cite other bodies of law and other international standards protecting people; 4 In particular international Human Rights law, whenever it deems necessary; 4 Importance of Policy documents for coherence, predictabililty, credibility;

INTERNAL DISTURBANCES 4 IHL can only be invoked by analogy 4 Human Rights applicable INTERNAL DISTURBANCES 4 IHL can only be invoked by analogy 4 Human Rights applicable 4 Norms applicable by FEHCL : Code of Conduct (1979) & Basic Principles (1990), Customary norms (IA Court of HR). 4 Respect for Customary universally humanitarian Principles i. e. in Martens Clause 4 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 4 ICRC belongs to the Movement 4 ICRC and the RC & RC Movement 4 ICRC belongs to the Movement 4 Recognises National Societies; 4 Coordinates international operations 4 Guardian of the Fundamental Principles : Humanity, Independance, Impartiality, Neutraliy, : Voluntary service, unity, universality

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

Scope of work and criteria for taking action 4 Four different situations : 8 Scope of work and criteria for taking action 4 Four different situations : 8 Help victims of IAC & NIAC. (heart of the mission) 8 In OSV: offer services (if seriousness of unmet needs, urgency of the situation, added value). 8 If a natural or technological disaster or a pandemic occurs in an area where the ICRC has an operational presence (emergency phase only); 8 Other situations: if unique contribution given its expertise and explicit mandate: tracing, disseminating IHL

Criteria for priorities 4 Victims' suffering and urgency of needs (impartiality, proportionality of needs). Criteria for priorities 4 Victims' suffering and urgency of needs (impartiality, proportionality of needs). 4 ICRC's unique capabilities, experience, 4 Legal basis; 4 Impact on other activities 4 From comprehensive analysis to specific activities

Four main approaches 4 Protection 4 Assistance 4 Prevention: forster an environment conducive to Four main approaches 4 Protection 4 Assistance 4 Prevention: forster an environment conducive to respect for lives & dignity of victims, influence those having direct or indirect impact on the fate of victims. 4 Cooperation 4= Multidisciplinary approach 4 Role of Humanitarian diplomacy

Modes of action Complementarity of roles & Coordination of humanitarian activities with partners 4 Modes of action Complementarity of roles & Coordination of humanitarian activities with partners 4 Combination of modes of action (means or methods used to persuade authorities to fulfil their obligations): 8 Raising awareness of responsability: persuasion -> mobilization, -> public denunciation) 8 Support 8 Substitution.

Guidelines for action 4 NIHA: Neutral, Independant Humanitarian Action. 4 Close to & in Guidelines for action 4 NIHA: Neutral, Independant Humanitarian Action. 4 Close to & in consultation & association with the victims. The issue of access; 4 Universal coherent approach, transparent and predictable; 4 Dialogue with ALL parties, ALL those involved, who may have influence. 4 In emergency phase, as long as necessary. 4 Accountability

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

ACTIVITIES IN AC & OSV 4 Visits to persons detained for security reasons 4 ACTIVITIES IN AC & OSV 4 Visits to persons detained for security reasons 4 action to protect the population 4 Disappearances and missings 4 Food, medical and other relief 4 Dissemination of IHL and FP 4 Cooperation with the NS 4 Good Offices

ICRC PROTECTION ACTIVITIES Civilian population Detention Restoring Family Links ICRC PROTECTION ACTIVITIES Civilian population Detention Restoring Family Links

ROLE OF THE ICRC PROTECTION OF VICTIMS OF ARMED CONFLICT Visiting of POWs/Detainees ROLE OF THE ICRC PROTECTION OF VICTIMS OF ARMED CONFLICT Visiting of POWs/Detainees

To a global needs approach 4 Build up a relationship of TRUST with authorities To a global needs approach 4 Build up a relationship of TRUST with authorities 4 establish a constructive dialogue with defacto / de jure authorities

DETENTION Ø To collect informations Ø …persuade for respect of physical and moral integrity DETENTION Ø To collect informations Ø …persuade for respect of physical and moral integrity of detainees / prisoners Ø Establish and maintain dialogue Ø prevent dissapearances, torture, ill treatment and bad conditions of detention Ø Re-establish family links

CONDITIONS PRIOR TO ICRC VISIT Ø Access to all detainees, in the place where CONDITIONS PRIOR TO ICRC VISIT Ø Access to all detainees, in the place where they are being held. Ø Talk to detainees of its choice in private (without witnesses) Ø Register the detainees' personal information Ø Repeat its visits

CONFIDENTIALITY Ø Confidentiality is a method of work Ø It facilitates access for ICRC CONFIDENTIALITY Ø Confidentiality is a method of work Ø It facilitates access for ICRC to what the authorities have a tendency to hide Ø No pressure from public opinion Ø The ICRC talks about what it does and not about what it sees Ø BUT, confidentiality is not absolute (as a last resort and in extreme circumstances)

DETENTION Ø To collect information in order to be able to make recommendations to DETENTION Ø To collect information in order to be able to make recommendations to the detaining authorities in order to … Ø …persuade them to respect the physical and moral integrity of detainees / prisoners Ø Establish and maintain dialogue Ø To put an end to and prevent dissapearances, torture, ill treatment and bad conditions of detention Ø Re-establish family links

"CLIENTS" ? 4 Arrested on account of the situation of IV 4 considered, rightly or wrongly, as real /potential opponents by the detaining authority 4 Security detainees

ROLE OF THE ICRC Re-uniting Families ROLE OF THE ICRC Re-uniting Families

In 2009 the ICRC found more than 3, 000 people sought by their families In 2009 the ICRC found more than 3, 000 people sought by their families and received more than 15. 000 new tracing requests.

ROLE OF THE ICRC Tracing of Missing Persons ROLE OF THE ICRC Tracing of Missing Persons

Research of missing persons 4 Peru 4 Colombia 4 Guatemala 4 Argentina, Chili 4 Research of missing persons 4 Peru 4 Colombia 4 Guatemala 4 Argentina, Chili 4 Balkans 4 Caucasus 4… 4 Legal framework and operations + coordination

ROLE OF THE ICRC Water Supply ROLE OF THE ICRC Water Supply

ROLE OF THE ICRC Medical Support ROLE OF THE ICRC Medical Support

Economic Security Economic Security

ROLE OF THE ICRC Dissemination DISSEMINATION TO THOSE INVOLVED IN ARMED CONFLICT ROLE OF THE ICRC Dissemination DISSEMINATION TO THOSE INVOLVED IN ARMED CONFLICT

ROLE OF THE ICRC Good Offices ROLE OF THE ICRC Good Offices

Role of ICRC Regional Delegations 4 Dialogue and cooperation with States 8 Political support Role of ICRC Regional Delegations 4 Dialogue and cooperation with States 8 Political support for humanitarian agenda 8 Respect IHL at national level: implementation: Legislations, Armed Forces, Education; 8 Competence, expertise 4 Influence of Academics and researchers

Prevention - 2 4 Ensure respect and humanitarian diplomacy: 8 Legal: IHL development 8 Prevention - 2 4 Ensure respect and humanitarian diplomacy: 8 Legal: IHL development 8 Operational 8 Financial 4 Support to the National Society

More information www. icrc. org More information www. icrc. org

Thank you Thank you

Questions? Questions?