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Issue No: 193
June 11, 2005

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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.


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