Star Law History
ICRC
and the development of Humanitarian Law
Muhammad
Zamir
From
its inception, the International Committee of the Red
Cross (ICRC) has taken the initiative, which has by now
become a long-standing practice, of working for the development
of international humanitarian law, which regulates the
conduct of hostilities in order to mitigate their severity.
The
ICRC was responsible for initiating the process which
led to the conclusion, and later the revision of the Geneva
Conventions for the protection of the victims of war of
1864, 1906, 1929 and 1949. In this, they have received
special assistance from the Government of Switzerland,
the Depositary State of these basic instruments, which
convened and organised diplomatic conferences that brought
into being these Conventions.
The
Geneva Conventions, which have saved innumerable lives,
have been in the focus over the last few yeas.
The
Conventions, as they exist today, are different from what
they were prior to 1949. They were considerably enlarged
in 1949 but were subsequently further expanded over the
next three decades. The changes in formulation included
references to wounded and sick soldiers and to prisoners
of war. A Fourth Convention, which was almost entirely
new and related to civilians and their protection against
arbitrary enemy action was also brought forth to bridge
the gap that was so keenly felt during the Second World
War.
Another
reason for revision related to the law of The Hague, which
was concerned with developing rules on hostilities and
the use of weapons. Consequently, in agreement with the
Government of Netherlands, two subjects arising from The
Hague regulations respecting the laws and customs of war
on land were placed on the agenda for future development.
It
is here that the ICRC played an important role. It had
already presented draft rules to the XIXth International
Conference of the Red Cross, which convened in New Delhi
in 1957. These draft rules were approved in principle
at that time but did not receive support from most governments
because of the manner in which they had tackled the controversial
question of nuclear weapons.
It
was left to the XXth Conference of the Red Cross, which
took place in Vienna in 1965, to move things forward.
It approached the question related to the protection of
the civilian population against the dangers of indiscriminate
warfare and approved four principles in its resolution
No. 28. It also stressed on the need for the ICRC to 'pursue
the development of International Humanitarian Law'.
The
ICRC was not discouraged by the enormity and difficulty
of the task. As a first step, they addressed a Memorandum
dated 19 May 1967 to all State Parties to the Geneva Conventions,
raising the question of further developing the law of
armed conflicts and including a list it had drawn up of
the written and customary rules which could be considered
to be still in force. This was followed up by the International
Conference on Human Rights, Tehran in May 1968 which authorised
the United Nations to undertake consultations with the
ICRC in this regard. It was also recognised that the best
conditions for success could be created by undertaking
this sensitive task on neutral ground-Switzerland, to
avoid the matter becoming politicised.
In
September 1969, the XXIst International Conference of
the Red Cross, held in Istanbul, was presented with an
important report from the ICRC on this subject. On the
basis of this report, the ICRC was urged to actively pursue
its efforts 'to draft concrete rules which would supplement
the existing humanitarian law'.
The
ICRC and the Netherlands Red Cross worked together and
were able to convene a Conference of Government Experts
on the Development of International Humanitarian Law Applicable
in Armed Conflicts in May-June 1971. About forty governments
sent nearly 200 representatives to the meeting. The NGOs
also contributed their views. One country in particular
followed developments with great anxiety -- Pakistan,
because of the brutal use of force that had been unleashed
on the civilian population in its eastern wing, now Bangladesh.
The
second session of the Conference of Government Experts
was held in Geneva in May-June 1972. This time, it was
participated by 77 Governments.
Following
these Sessions, the ICRC drew up the complete text of
two draft Protocols additional to the Geneva Conventions,
one for cases of international armed conflict, the other
for conflicts which were not of an international nature.
These were to serve as a basis for discussion in the future
Diplomatic Conference which the Swiss Government had decided
to convene. In elaborating the basic texts, the ICRC endeavoured
to remain true to the spirit in which it had always sought
guarantees for the benefit of victims of conflicts, ever
since 1864, as required by humanitarian considerations.
The
drafts were sent to all Governments in 1973 along with
a detailed commentary. These were subsequently presented
at the XXIInd International Conference of the Red Cross
held in Tehran in November, the same year. It was also
noted by the ICRC that the ICRC did not intend to broach
the problems associated with atomic, bacteriological and
chemical warfare. It also did not include in the drafts
any prohibitions of specific limitations with regard to
so-called 'conventional' weapons which cause superfluous
injury or unnecessary suffering or strike 'indiscriminately
civilian population and combatants alike'.
At
this point it was felt that there was need for a fuller
examination of conventional weapons. Accordingly, two
further meetings of Government Experts were convened in
Lucerne in 1974 and in Lugano in 1976. However, agreement
could not be reached on various aspects, so that this
subject remained one step behind the Protocols. It took
nearly four more years before disagreements could be ironed
out and adoption completed (on 10 October, 1980) of the
Convention of prohibitions or restrictions on the use
of certain conventional weapons which may be deemed to
be excessively injuries or to have indiscriminate effects.
While
these efforts were underway, on a parallel track, several
Conferences were organised by the Swiss Government in
Geneva in 1974, 1975, 1976 and 1977 to discuss the development
of international humanitarian law applicable in armed
conflicts. States which were Parties to the Geneva Conventions
or Members of the United Nations (numbering 155) were
invited. However, participants ranged from 107 to 124
in the various Sessions. In addition 11 national liberation
movements and 51 intergovernmental or non-governmental
organisations also participated. Former President of Bangladesh
Abu Sayeed Chowdhury played an important role in these
deliberations.
After
extensive discussion, the Additional Protocols to the
Geneva Conventions of 12 August, 1949 were adopted on
8 June, 1977. It entered into force on 7 December, 1978.
The
Geneva Conventions now constitute an impressive monument
of 600 articles of which almost 150 are new. This codification,
assisted by the ICRC has brought great hope to many victims,
in a world constantly involved in obligations arising
from the conduct of hostilities. It has also enabled the
Red Cross and the Red Crescent to save more lives and
help those in distress who would otherwise have remained
unassisted.
The
character of the Protocols have modified previous law
and sometimes even introduced fairly bold innovations.
Because
of these Protocols, civilian medical personnel and the
personnel of the civil defence services now enjoy safeguards
comparable to those which military medical personnel have
enjoyed for a long time.
It
was a difficult and complex task, but the persistence
of the ICRC enabled all Parties to accept the universal
nature of the codification. This has also devolved on
the ICRC greater responsibilities in their continuous
monitoring of conflict affected areas.
The
author is a former Secretary and Ambassador.
