To start, I would like to thank Professor Paust for inviting the International Committee of the Red Cross (I.C.R.C.) to participate in this panel. Its subject is indeed closely linked to the I.C.R.C

Lavoyer, Jean-Philippe

NSU Works

INTERNATIONAL HUMANITARIAN LAW AFTERBOSNIAJean-Philippe LavoyerTo start, I would like to thank Professor Paust for inviting theInternational Committee of the Red Cross (I.C.R.C.) to participate in thispanel. Its subject is indeed closely linked to the I.C.R.C.In my brief presentation, I would like to comment on the followingissues which are related to the theme of this panel: 1) Is presenthumanitarian law still adapted to the needs of modem wars?; 2) Howshould war criminals be prosecuted?; and finally 3) How safe can safeareas be?As most of you know, the I.C.R.C.'s activities are based on theGeneva Conventions of 1949 and the statutes of the International RedCross and Red Crescent Movement. Its mandate is to protect and assistvictims of armed conflicts and internal disturbances.First, the I.C.R.C. protects and assists the victims in the field. Itprotects the civilian population, it visits prisoners of war and otherdetained persons, provides food, medical and other assistance, re-establishes the link between separated family members through Red CrossMessages, tries to find persons who went missing during the conflict, andreunites family members.Second, the I.C.R.C. is mandated by the international communityto act as promoter and guardian of international humanitarian law. Itsdelegates in the field, which number about one thousand, monitor respectof humanitarian law and, in the case of violations, they intervene with theparty concerned. These interventions are made at all levels. The I.C.R.C.seeks to establish a constructive dialogue with all the parties concerned,with governmental authorities as well as with armed opposition groups,which, and this should be underlined, are also bound by humanitarian law.This dialogue with the parties is the reason why the I.C.R.C. treatsits findings and representations in a discreet and confidential way. Theprinciple of confidentiality is thus not an end in itself, but rather a workingmethod. It has its limits: when severe violations of humanitarian lawcontinue even after the I.C.R.C. has intervened, it reserves the right todenounce such violations publicly. The I.C.R.C. has made a more liberaluse of this policy in the last few years, in particular, during the war in theformer Yugoslavia.* Legal Advisor, International Committee of the Red Cross, Geneva.ILSA Journal of Int'l & Comparative LawAfter these general comments, let me turn to the question ofwhether present law is still adapted to the needs of modern warfare.Since the end of the Cold War, the nature of many armed conflictshas changed. Bosnia is a case on point We have witnessed there, I thinkin particular of the atrocious policy of ethnic cleansing, types of behaviorswhich were in complete contradiction with the most fundamental principlesof humanitarian law.In Rwanda and Burundi, ethnic wars have claimed hundreds ofthousands of victims, and the present situation in Zaire is extremelypreoccupying.In other parts of the world, such as Liberia, state structures havedisintegrated and collapsed to a point where the total lack of discipline andthe apparently unlimited availability of light weapons make it impossiblefor humanitarian organizations to work. Combatants, which often includeyoung children, do not fight for an ideology anymore, but for meresurvival.What lessons should we draw from this grim picture? Is existinglaw insufficient, and should we therefore advocate new law?Let me say briefly that the mere fact that a rule is violated does notmean that it is bad. This may sound trivial, but in the ongoing debate,there is a widespread confusion between the quality of the rule and itseffective implementation. These are two different things. We areconvinced that humanitarian law offers adequate protection. The problemis often a manifest lack of political will to apply the law.When state structures disintegrate, the problem becomes morespecific, as civilian and military command lines, which are essential for therespect of humanitarian law (and law in general), have ceased to exist.There does not seem to be a ready-made solution for this problem. Betterlaw is certainly not a solution, as it would not be enforced. It is thenrather the responsibility of states to intervene, as humanitarian actors reachthe limits of their work. But this is a political, rather than a legal, issue.Let me add that these situations of failed, disintegrated states are,at least for the time being, not so frequent. They are certainly much lessfrequent than people think! Take Bosnia: it was not in the process ofdisintegration in the sense previously mentioned, even though thisargument was often used as an excuse. There was generally no lack ofcommand lines, as the violations of humanitarian law were mainly theresult of clear-cut policies. Forcing people to flee had become part of apolitical strategy. Moreover, the rules of humanitarian law were oftenwell known.So the problem is often more political than legal. The parties to anarmed conflict have to accept more readily the application of humanitarian584 [Vol. 3:583Lavoyerlaw. At the same time, states have to assume their internationalresponsibility and ensure respect for the Geneva Conventions as stipulatedin Common Article 1.At the same time, one should remain pragmatic: the law may needto be developed in certain specific fields. A case in point is the adoption,in May of this year, of a Protocol prohibiting the use of blinding laserweapons.' Its Protocol II on land-mines was also revised.There has also been a debate on whether persons displaced withintheir own country were sufficiently protected. The representative of theSecretary-General on Internally Displaced Persons, Mr. Francis Deng, hasclarified the issue by publishing his Compilation and Analysis of LegalNorms protecting the internally displaced. He came to the conclusion thatmost of the protection needs of the internally displaced were adequatelycovered.Here again, what is lacking is the proper implementation ofexisting rules: humanitarian and human rights law. Respect of that lawwould help prevent many population displacements, because it is theirviolation which forces entire populations to flee their homes.Let me now turn briefly to the prosecution of war crimes. First, Iwould like to recall that the Geneva Conventions introduced a system ofuniversal jurisdiction. This means that states have an obligation toprosecute suspected war criminals. It is regrettable that this system has notworked. The ad hoc tribunals for the Former Yugoslavia and Rwanda arean important step. This selective approach is, however, insufficient.There is a need for a permanent international criminal court, as the presentimpunity cannot last forever.In the I.C.R.C.'s view, such a court should have the followingcharacteristics:a) It should be complementary to national courts, the system of universaljurisdiction should remain in place.b) The court should also deal with internal, armed conflicts, andprosecute those who have committed serious violations of commonArticle 3 of the Geneva Conventions and of Protocol II of 1977, eventhough these violations may not constitute grave breaches.c) The court should be impartial and independent; the prosecutor shouldbe able to open investigations on his own initiative, and the courtshould not have to obtain permission from concerned states.d) The court should be independent from the Security Council, whichshould not be able to block the activities of the court.1. Convention on Prohibitions or Restrictions on the Use of Certain ConventionalWeapons, Apr. 10, 1981, Protocol IV, 19 I.L.M. 1523 (1980).1997]ILSA Journal of Int'l & Comparative LawIn order to have the system of universal jurisdiction work, it isessential that states adopt proper national legislation allowing for theprosecution of war crimes. In order to assist states, the I.C.R.C. hasrecently set up an Advisory Service. Lawyers based at I.C.R.C.headquarters in Geneva, as well as experts based in the field, seek to assiststates in adopting such national laws.To conclude, I would like to say a few words about the concept ofsafe areas. When speaking about Bosnia, one. will of course remember thetragic events surrounding the town of Srebrenica. Srebrenica had, though,been declared a safe area by the Security Council. The question we haveto ask ourselves is: How safe can safe areas be?When discussing this issue, it is important to clarify the termsbeing used, as there exists quite some confusion.The Geneva Conventions and their Additional Protocols containseveral rules about the establishment of protected zones. They areintended to protect the military sick and wounded, or the civilianpopulation, against hostilities. I cannot go into the details of such zoneshere, and shall limit myself to say that these zones are based on theconsent of the parties. In addition, they have to be demilitarized, whichnecessitates a strict control of the concerned zones.In practice, there have been great difficulties in establishing suchprotected zones because of the lack of trust between the fighting parties.The I.C.R.C., on its part, has managed to create some neutralized zones,though limited in space and in time.The safe areas established by the United Nations are very differentin nature. They are imposed on the parties, as it happened in the formerYugoslavia, on the basis of Chapter VII of the United Nations Charter.The consequence of this is that these zones are very fragile, and need avery strong protection force in order to be implemented. This was not thecase in Bosnia, where the United Nations protection forces were clearlyinsufficient. Moreover, the zones in Bosnia were not even demilitarized,and could, therefore, be seen as legitimate military targets.We know the sad results. Not only were the people in these zonesnot adequately protected, but, worse, the civilian population was given afalse sense of security and protection.What lessons should we draw from this experience?1) It is very difficult and risky to establish safe areas. That means thatone has to think twice before acting.2) If special protection zones are to be created, the principles and rulesof humanitarian law should more readily be taken into account.586 [Vol. 3:5831997] Lavoyer 5873) If they have to be imposed, which may be justified in certaininstances, they should be completely demilitarized and effectivelyprotected. And, last but not least,4) Humanitarian law protects the civilian population as a whole; zonesunder special protection should under no circumstances underminethis general immunity.

International Humanitarian Law After Bosnia

http://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1093&context=ilsajournal

International Humanitarian Law After Bosnia

Abstract

Similar works

Full text

Available Versions

NSU Works