Improving Compliance with IHL: A Long-Term Enterprise

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| Nov 22, 2021

Red Cross Red Crescent

It is difficult to talk about the mission and mandate of the International Red Cross and Red Crescent Movement (the Movement) without talking about international humanitarian law (IHL) and vice-versa. The two are inextricably linked and continue to influence and guide one another, particularly through the quadrennial International Conferences of the Red Cross and Red Crescent (International Conference).

At the 32nd International Conference in 2015, States could not agree upon a compliance mechanism following four years of negotiations led by Switzerland and the ICRC. This blog post provides an overview of this process (the Strengthening Compliance Initiative) and briefly considers the intergovernmental process that led to a new focus on national implementation of IHL. Despite the initial disappointment in the outcome, unexpected developments and successes have since emerged as a result of this initiative. This ambitious attempt by States and the Movement—again led by Switzerland and the ICRC—to strengthen compliance with IHL is but one in a long line of developments that rarely take a smooth and linear path. But, like many initiatives that have come before it, it has nevertheless continued to help inch humanity forward in the pursuit of greater compliance with IHL.

The inextricable link between IHL and the International Red Cross and Red Crescent Movement

Intended as a neutral and universal body of public international law, IHL is unusual in that it explicitly references the International Committee of the Red Cross (ICRC) and National Red Cross and Red Crescent Societies within its core documents—the 1949 Geneva Conventions and their Additional Protocols. The mandate provided under these instruments focuses on the provision of neutral and impartial humanitarian relief in times of war. It has permeated the development of Movement structures and functions, resulting in enduring interconnected relationships between the Movement, States and IHL.

This special relationship between the Movement and IHL is most evident in the Statutes of the Movement. These set out the Fundamental Principles of the Movement, including the principles of neutrality, impartiality, and independence (preamble); the role and function of the various components of the Movement (Arts. 3–7); the obligations of States in relation to their interactions with the Movement (Art. 2); and the composition, functions, and procedure of the International Conference (Arts. 8–11).

Of course, there are many international fora in which IHL is discussed, developed, and formed. However, the International Conference is unique among public international law mechanisms. Its composition stretches beyond the States Parties to the Geneva Conventions to also include all components of the Movement, with all participants having equal rights (Art. 9). Further, it requires that all participants, including the States Parties to the Geneva Conventions, respect the Fundamental Principles of the Movement and conform to these principles so debates at the conference command the confidence of all (Art. 11(4)). This arrangement reinforces the aim of consensus for the adoption of formal outcomes (known as resolutions) (Art. 11(7)).

Looking back at the past 150 years of the International Conference’s existence, three things become apparent. First, the rich and deep history of the Conference in planting seeds that grow and create inspiration for key IHL developments; second, the long-term nature of such developments; and third, the reflection of broader social, political, and historical developments in the content, form, and environment of the Conferences and its outcomes. For example, as Bugnion points out, the 17th International Conference in August 1948 examined each article and approved the draft revised or new Geneva Conventions drawn up by the ICRC, with the assistance of government experts, to take account of the lessons of World War II. The 22nd International Conference gave its support to the draft Protocols additional to the Geneva Conventions. For Bugnion, “Indeed, every stage in the development of international humanitarian law has been supported by the positions adopted by the Conference.”

Strengthening Compliance with IHL: The ICRC-Swiss Initiative

In recent decades, the ICRC identified lack of compliance with IHL as  “one of the greatest challenges to the continued credibility of this body of international law.”

The Geneva Conventions and their Additional Protocols do not provide a mechanism through which Parties meet or report on their treaty obligations. This deficiency became a topic of research and reflection for the ICRC in 2008, with earlier preparations in regional seminars from 2003 (Pejic, p. 317). Successive International Conference resolutions expressed the question (e.g., Resolution 3 of the 30th International Conference (2007)). By 2011, Resolution 1 of the 31st International Conference invited the ICRC to build on its work by working alongside the Swiss Government to develop a consultation process aimed at strengthening compliance with IHL. The ICRC and Switzerland were tasked with reporting to the 32nd International Conference on a “range of options” to “enhance and ensure the effectiveness of mechanisms of compliance with IHL.” As a result, between 2012 and 2015, the ICRC and Switzerland convened a series of meetings with States.

During this consultation phase, three key elements emerged: a regular Meeting of States; periodic reporting on national compliance with IHL; and thematic discussions on contemporary IHL challenges. Central to these ideas was the need for any compliance mechanism to be State-led, consensus-driven, non-contextual, non-duplicative of existing compliance mechanisms, and voluntary in nature.

The 32nd International Conference and the Outcome of the “Strengthening Compliance with IHL” Initiative

The official draft resolution submitted by the ICRC and Switzerland to the 32nd International Conference contained a general outline of the three key elements described above. The draft would provide the basis for negotiations, and the Conference worked through details of the draft in 2016 before convening the first Meeting of States under a potential new mechanism. Days before the International Conference, however, a bloc of States circulated a revised draft that significantly watered down the original proposal.

The Drafting Committee of the 32nd International Conference confronted a highly unusual situation of having two potential texts from which to negotiate. The Committee prioritized consensus in order to maintain the unique neutral and impartial nature of the International Conference. As Pejic notes,

aside from the complexity of the issue at hand, the limited time available for negotiations on this and the other Conference resolutions was also a factor objectively constraining a possible narrowing down of positions. Resolution 2 may be said to represent a compromise between the official draft resolution and the alternative text. It was the best that could be obtained under the circumstances and represents an outcome which, importantly, keeps the process going.

The final resolution greatly disappointed members of the International Conference; however, there was still some cause for optimism in that the resolution called for “the continuation of an inclusive, State-driven intergovernmental process based on the principle of consensus after the 32nd International Conference.”

However, further disappointment was still to come. Following the adoption of the resolution, the multilateral space continued to shrink. The penultimate meeting of States occurred in late 2018. It failed to reach consensus on the elements of a new IHL mechanism. Instead, States agreed that the ICRC and the Swiss Government would produce a “factual report” on the progress of the inter-governmental process that would be presented at a final formal meeting of States in March 2019.

Reflections and Lessons Learned

The timing for a process to strengthen IHL was ideal from a humanitarian standpoint. However, perhaps the greatest lesson from the initiative was the need for alignment between a proposed solution to a critical humanitarian issue and the right geopolitical environment in which to see it succeed.

In the years leading up to the 2015 International Conference, States retreated from multilateral processes. They focused instead on domestic matters and adopted comparatively isolationist foreign policies. Neither the Movement nor States were blind to this trend; it had after all been a critical challenge in establishing new IHL norms over recent decades outside of the context of the International Conference. Yet many members of the International Conference underestimated how much this “multilateral ice-age” could and would impact on the International Conference—a uniquely humanitarian forum with a tradition of consensus building and a neutral and impartial operating model.

The International Conference has never been immune from geopolitical issues. Often they have exhibited themselves in matters concerning participation. It therefore may seem naïve to have thought that the Movement could be immune from broader geopolitical dynamics in 2015. It also perhaps speaks to the extraordinary strength of the Fundamental Principles and the mandate of the Movement and the long-standing credibility of the International Conference that so many of us shared in this belief.

The result of the initiative and the years that have followed in the broader global arena also provide pause for thought in terms of what has, up until recently, driven the success of both IHL as a body of law and the International Conference as a forum through which the law is strengthened and developed. The universality of IHL has long been celebrated and used to drive compliance with IHL. In addition, the strength of the International Conference has been its commitment to an environment of consensus building which has in turn reinforced the notion of the universality of IHL. While there is no question that the concepts underpinning IHL are universal in nature, the way in which the law has been codified, formalized, and developed does not reflect universal cultural mores. As Cropp (2021:30) notes,

Universality itself is geographically and historically situated. The Geneva Conventions emerged out of a purely European experience and a particular vision of legitimate warfare as a state activity. Colonialism effectively limited early notions of universality by ensuring non-European people remained beyond the margins of international law. For example, of the 59 states invited to the conference in Geneva to adopt the updated Geneva Conventions of 1949, only Egypt and Ethiopia were from the African continent.

During the years leading up to the 2015 resolution, shifting global power dynamics from countries formerly sidelined in multilateral processes became evident in areas of law and policy that extended far beyond the realms of IHL (and have continued to do so with greater intensity and sense of urgency ever since). It is interesting to consider the dynamics at play during the 32nd International Conference in the wake of very recent global debates about structural inequality and entrenched unequal power dynamics. With this lens, one could argue that the way in which the negotiations at the conference unfolded were an early lesson for the International Conference and its traditional power brokers in challenging the concepts of universality, consensus, and equality of participants in fora like the International Conference.

As a truly global Movement with 192 National Societies around the world, the 2015 experience also presents a critical opportunity to harness our full diversity to drive new, culturally relevant ways of strengthening compliance with IHL into the future.

The Enduring Legacy of the “Strengthening Compliance” Initiative

By the end of 2018, it was clear that it would not be possible to reach consensus on the elements of a new IHL mechanism. States, Movement components, and other interested actors looked to other means through which they could contribute to an environment of greater respect for IHL. The result was a diverse and multifaceted approach to strengthening compliance with IHL through a range of domestic, regional, and global initiatives as well as renewed resolve from many States to engage in existing IHL fora. It is hard to imagine these activities flourishing in the same way had the result of the strengthening compliance initiative been different, even though one cannot ignore that this critical gap in the overall IHL framework remains.

State and Movement Developments

Movement components and States sought to learn from the experiences of the 32nd International Conference and the subsequent meetings. The ICRC and others involved with the organization of the 33rd International Conference decided that the IHL resolution for that event should go back to basics and focus on measures to improve IHL compliance at the national level. This domestic rather than multinational focus achieved consensus.

The Conference adopted a resolution entitled “Bringing IHL Home: A road map for better national implementation of international humanitarian law.” It set out practical ways to improve a State’s own implementation of IHL domestically. The strength of the resolution is that it creates a blueprint for comprehensive implementation of IHL at the domestic level, while it also takes into account the role of different actors and provides a gentle nudge for members of the International Conference to work together to strengthen compliance with IHL. It does so not through new multilateral mechanisms, but through domestic activities that can practically strengthen compliance with IHL, as well as provide room for more ambitious endeavours for those that wish to take them. Since the adoption of the resolution, the ICRC has produced a comprehensive guideline to the domestic implementation of IHL.

Before the 33rd International Conference, the United Kingdom published its first voluntary report on the implementation of IHL at domestic level and a toolkit in six languages to help other States produce their own reports. Switzerland, among other States, issued its voluntary report in 2020. This led to a United Kingdom and British Red Cross initiative to garner support from other members of the International Conference to commit to a similar process over the next four years as part of their implementation of the IHL resolution. The commitment took the form of a voluntary “pledge,” which has since been signed by eight States and eight National Societies across six regions.

The importance of this initiative should not be underestimated. The reports provide a degree of transparency to a State’s implementation of IHL and the opportunity to share and compare experiences in this field of work. As more reports become available, one hopes that it will become increasingly attractive for others to undertake similar studies. Above all else, they provide an opportunity for States and National Societies to do a comprehensive check of any gaps in domestic implementation or areas that could be further strengthened. This is in the spirit of the IHL resolution, which takes the approach that the domestic implementation of IHL is an ongoing endeavor.

Other Developments

Other new and existing initiatives outside the Movement have also taken inspiration—from “failures” as much as “successes” —from the strengthening compliance initiative. They have built on and work towards greater respect for IHL. For example, the Oxford Forum for IHL Compliance, established in 2019, took inspiration from the inability of States to reach consensus on the adoption of a mechanism to strengthen respect for IHL, including through the process established by the Swiss Government and ICRC via the International Conference. The aims of the project align seamlessly with the intent of the 2019 International Conference resolution, which stress the importance of an interconnected network between a range of actors in order to strengthen implementation and respect for IHL. The forum takes on a very different flavor to that of a Movement initiative, adding to the diversity of voices and approaches all working towards the same ultimate goal and providing an important complementary approach to the issue of a lack of respect for IHL.

Another initiative is the use of a template questionnaire in reporting on follow-up to the long-established biennial UN General Assembly Resolution on the Status of the Additional Protocols to the Geneva Conventions. In successive iterations, the Resolution encouraged States to agree to use of a questionnaire in reporting on their follow-up. A questionnaire would help facilitate the submission of information for future reports of the UN Secretary General. Additionally, as a practical matter, use of a standard questionnaire when reporting would help consistency and the possibility for comparison.

There is a link with voluntary reporting. Both aim to explain in a single document the key steps taken by States at domestic level to implement IHL. Both also help to improve understanding of IHL, encourage and inform dialogue, identify best practices, and build confidence. Ultimately, both aim to improve implementation and compliance with IHL. The United Kingdom used a questionnaire to report on its follow-up to the Biennial Resolution for the first time in 2020. It was well-received, and it will be interesting to see whether other States follow this approach in future.

Conclusions

The four Geneva Conventions of 1949 were the product of no less than 84 years of legal development. The importance of patience and pragmatism in this field should not be underestimated. Alongside an increasingly turbulent geopolitical backdrop, the 2015 initiative always faced deeply complex multilateral dynamics. Problems as complicated as those tackled by the International Conference are likely to require equally complex solutions that will not be developed easily or quickly.

But all is not lost. Even when seismic shifts are not achieved, each International Conference has laid the groundwork for the future. There was palpable frustration, disappointment, and indeed sadness following the failure of the 2015 resolution to achieve its objectives in terms of form and function. However, assessing the success or failure of the initiative or questioning the innate value of something as unique as the International Conference by this measure alone lacks nuance and long-term perspective. Indeed, perhaps many of us expected too much from an International Conference and from this resolution than what was reasonable in the broader multilateral environment.

As François Bugnion noted in 2009:

Despite vicissitudes that cannot be ignored, the International Conference … has come through 140 years of history, including two world wars and 40 years of cold war. This longevity—which is remarkable for an international institution—clearly testifies to the importance of the Conference. Moreover, through the impetus that it has given to the development of international humanitarian law and humanitarian action, the Conference has served humanity well: each stage in the development of international humanitarian law has been supported by a position adopted by the Conference (pp. 711–12).

The most recent process highlights the enduring importance and evolving nature of both consensus and the universality of IHL as global power dynamics continue to shift and change.

The emergence and maturation of ideas, activities, and renewed creativity and determination to deal with this issue is just one more example of the International Conference providing the inspiration for ideas within and external to the Movement to develop and strengthen IHL. In all major IHL initiatives that have sprung from the International Conference, persistence, patience, and long-term perspective have been key; this latest challenge is no different.

We do not know what the ultimate legacy of the perhaps unfairly maligned International Conference resolution of 2015 will be. However it is clear that the seeds planted in 2011 and 2015 are now beginning to truly propagate and blossom in different ways across the globe. In time, these new opportunities and ideas will hopefully evolve from initiatives into systemic change, strengthening compliance with IHL on into the future.

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Michael Meyer OBE is Head of International Law at British Red Cross.

Yvette Zegenhagen is Head of International Humanitarian Law at Australian Red Cross.

This article represents the personal views and opinions of the authors and does not necessarily reflect the views of either the British Red Cross or the Australian Red Cross.