International Committee of the Red Cross (ICRC): briefing

FOREIGN AFFAIRS PORTFOLIO COMMITTEE
19 March 2003
INTERNATIONAL COMMITTEE OF THE RED CROSS (ICRC): BRIEFING

Chairperson: Dr P Jordan (ANC)

Documents handed out:
Presentation by Mr Patrick Zahnd (ICRC Delegation Head) (see Appendix 1)
Presentation by Mr Leonard Blazeby (ICRC Legal Adviser) (Appendix 2)

SUMMARY
The Portfolio Committee was briefed by Mr Patrick Zahnd (Delegation Head) and Mr Leonard Blazeby (Legal Adviser) with regard to the International Committee of the Red Cross (ICRC)and its role in providing protection and medical assistance to victims of war and other instances of human distress, in the international arena. They commended South Africa for its role in ratifying most of its treaties and conventions, while reminding the Committee that there were still certain protocols and conventions which it had not yet ratified.

MINUTES
Address by Mr Patrick Zahnd (ICRC Head of Delegation)
Mr Zahnd stated that the ICRC and all states hold their breath today, on the eve of an announced war on Iraq. It is a time to remind states and people of what war does. International Humanitarian Law strikes a balance between military necessity and humanitarian need in a realistic manner. It seeks to mitigate the harmful effects of war. It protects those who are not combatants, whether they are enemies or friends, and seeks to restrict the means of military war, averting attacks on civilians.

It prohibits/ limits the manufacturing or stockpiling of certain weapons of warfare, such as nuclear weapons and weapons of mass destruction, because they do not discriminate between civilians and military targets, and cause unnecessary suffering, and superfluous injuries. The use of nuclear weapons is contrary to International Humanitarian Law.

With regard to International Humanitarian Law (IHL), it is not the validity of the laws that are debated, but the respect that these laws are accorded, and the violation of these laws. States are the main entities responsible for upholding the IHL, and the ICRC, being neutral, means to act as an intermediary.

The ICRC's mandate is to work for the understanding and dissemination of IHL, undertake development of such training; take cognisance of complaints and breaches of Humanitarian Law; and ensure protection.

The mandate is of a conventional nature, flowing from the Geneva Convention.

Respect of IHL and its protection by the state is vital. States have repeatedly said that they must do whatever needs to be done within their own borders, to ensure that violations of IHL do not happen there. This necessitates full implementation of IHL by those states.

With that in mind, the first priority of the state, then, is to adopt the Geneva Conventions Act. They must establish universal jurisdiction to extradite any author of a war crime or violation of IHL, to enable prosecution. Any state which is party to the Geneva Convention has that obligation, because of the Convention, and more recently also, the Rome Statute.

Training in IHL must be fully integrated within the police services and security forces of the state, and within communities at large, forming part of school curricula. Here, Mr Zahnd commended South Africa for taking a strong lead in signing a directive to the effect that full integration is taking place in the South African National Defence Force (SANDF). The training process is underway within the South African Police Services (SAPS).

At the UN, there is a provision that states must report every two years on what they have done with respect to the resolutions of the ICRC.

Presentation by Mr Leonard Blazeby (Legal Adviser)
Mr Leonard Blazeby briefed the Committee on what had happened in South Africa with regard to the adoption and implementation of International Humanitarian Law. He reported that South Africa has done well. It has ratified most pieces of IHL legislation, but there were a few outstanding. these are: the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; two Protocols and the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

Ratification of the Ottawa Treaty, banning international landmines, is underway, and comes before Parliament for final debate on 8 April 2003. The International Weapons Convention, restricting the use of certain weapons, such as lasers, comes before the Defence Portfolio Committee around September/ October 2003.

Even though South Africa had pledged to implement Geneva Conventions Act domestic legislation at the 27^th International Conference, to date it has not yet done so. However, such legislation is currently in finalised draft form, and is set to go before Parliament.

Discussion
Ms F. Hajaij (ANC) asked what the credibility of the International Criminal Court (ICC) was, in view of nation states being perpetrators? Lastly, she wanted to know if the ICRC worked with civil society organisations.

With regard to South Africa's slow movement towards ratifying all of the ICRC's treaties and conventions, Mr M. Ramgobin (ANC) informed Mr Zahnd that absolute regard for human rights is entrenched within the policies of the country. He asked why the United States of America (USA) had not yet signed these policies. He wanted to know how the ICRC intended to implement its IHL initiatives in Iraq, the USA, Israel and Palestine.

Mr C. Eglin (DP) commented that he was most impressed by the ability of the ICRC to maintain its integrity in difficult situations. He asked if the Geneva Convention differentiated between the terms "armed conflict" and "war". Secondly, can actions which the USA plans to take against Iraq be constituted as "war", and will the provisions of the Geneva Convention apply?

By way of response to Mr Eglin's second question, Mr Zahnd stated that war could be armed conflict, but armed conflict is not always war. "Armed conflict" is the appropriate term when thinking in terms of the Geneva Convention. It's a question of when the conflict starts, and when it finishes. IHL is applicable to all states and actions. Yes, Iraq would be an area of armed conflict. Yes, the ICRC does have a contingency plan in Iraq for the long term. It is not the ICRC's policy to question armed conflicts or war, and why people go to war. Any armed conflict triggers the applications of humanitarian law. This armed conflict would create a very difficult situation, with devastating repercussions for the people of Iraq, but the Red Cross is there to help.

To Mr Ramgobin, Mr Zahnd said that the speed with which nations ratify the provisions of the Geneva Convention is never fast enough, but it is important that there is a sustained, structured dialogue with states. It gives hope for a way forward for comprehensive implementation.

With regard to those countries who had not ratified the ICRC's treaties and conventions, the ICRC regrets that those countries do not consider that ratification of IHL is an important issue.

On the question of the integrity of the ICC, Mr Blazeby stated that its provisions afford privacy to individual states by its policy of complementarity, whereby it allows states to choose to be the prosecutors of its own war criminals. The principle of complementarity means that the International Criminal Court may only assume jurisdiction when the relevant state chose not to prosecute a particular matter. This approach has two objectives: (1) to allow more matters to go to court, in order to spread the reach of the Court on a more global penal scale, and (2) to invest that kind of penal ability with states, so that they are aware of their accountability to the provisions of the IHL.

A member asked how the ICRC was being funded. Since the USA was very much in favour of war against Iraq, he wanted to know if they were funders of the ICRC.

Mr L. Zita (ANC) wanted to know what the adherence record was, in terms of the IHL.

Mr W. Seremane (DP) asked, with regard to descriptions of weapons that cannot be used, were there any descriptions of bombardments?

Mr C. Eglin (DP) mentioned that IHL could be guilty of impinging on the sovereignty of states. To clarify, he said that after the dismantling of apartheid in South Africa, it was decided not to prosecute former perpetrators of crime against humanity, but to grant them amnesty, in terms of the Constitution. He said it was culpable if a state failed to prosecute human rights abusers, but not if that country decided on a different path, as a matter of policy.

On the matter of funding, Mr Zahnd said that each country, as a high contracting party (in terms of its acceptance of the Geneva Conventions) is invited to support the ICRC financially. Its operations are costly. He confirmed that the USA was a financial supporter of the ICRC. Because most of the funding coming from the USA is not earmarked, the ICRC is able to use the money where it perceives the need to be greatest. The organisation has not suffered any breach of its independence. With regard to those countries who fail to ratify the IHL, it was not ICRC policy to point fingers.

On the record of adherence, Mr Zahnd said that the issue was one of violation. It becomes an issue if states do not uphold existing mechanisms. The tacit non-reaction of states is unacceptable. Each time that the ICRC has accessed prisoners of war, in spite of blockades, that constitutes respect of humanitarian law. That means that "some light went into that cell", and such miracles occur each day, because of support from countries like South Africa.

With regard to descriptions of bombardments, Mr Zahnd said that military objectives only should be targeted, not civilian goods. He made mention of the use of "smart bombs", with this objective in mind. The question as to what is a military target is, is an objective one. Some warring factions may regard a television station as a military objective.

Mr Blazeby added that lots of considerations here were important. When bombing a target from a great height, it is hard to hit that target without causing collateral damage.

On the matter of amnesty and justice, Mr Zahnd said that a war crime cannot be amnestied. The ICC realises that it does not operate within a vacuum. Where a nation considers amnesty as a means to moving the country forward, the ICC is willing to consider sanctioning such action, instead of prosecuting. There would be continuous communication between the ICC and the state, to determine what the appropriate action would be.

Mr Seremane asked what the responsibility is of combatants on the battlefield, when non-combatants expose themselves as human shields.

Mr Ramgobin wanted to know if there was a difference in the intensity of the work by the ICRC in areas like Burundi and Kosovo, as opposed to their experiences in Vietnam, Nagasaki, and Hiroshima.

Ms M. Magazi asked if it was correct for a leader, elected by democratic means, to be told by another leader, also elected by democratic means, that he must leave his own country. Because of this aggressive behaviour by the US government, a great number of people will be displaced. What kind of influence could the ICRC exert here?

Mr Zahnd responded that he was unable to answer Ms Magazi's first question, as it was of a political nature. He said that the IHL addresses the humanitarian consequences of war, without considering the legalities thereof. The UN Charter would certainly address the question, but not the ICRC. He added that forced displacement was a violation of IHL. The ICRC can have an influence on the course of world events, because the USA, Britain, and Australia are parties to the Geneva Conventions, which hold them accountable to the provisions thereof.

Speaking on the intensity of involvement by the ICRC, Mr Zahnd said that this question was linked to the question on finance. The ICRC objective is to provide protection and medical assistance without discrimination. They struggle to ensure that victims in forgotten places are assisted. It is easier to violate the IHL in places like these, since nobody has it on their agenda. As examples of forgotten places, he mentioned Burma and Sri Lanka. These places and victims have in most part been overlooked, but the ICRC is there.

Mr Blazeby informed the Committee that no policy had as yet been developed on the issue of the responsibility of combatants. It is a war crime to use humans as shields. It should be the objective of the military persons from the opposing side, to attempt to remove the human shields from danger. It is a matter which is loaded with various considerations. He suggested that a different strategy be sought, as people acting as human shields must not be regarded as military targets. It is an area of law that will invite much academic discussion for some time.

The Chairperson, citing the recent example where an American student was killed by Israeli soldiers while acting as a human shield, said, "my civilian target could be your military target". How was the decision to be made?

Mr Blazeby responded that it was difficult for the ICC to make a statement in the situation. However, without IHL and people considering these events, there would be no debating, and no focus on the issue. In the absence of an arbiter, he suggested that perhaps each individual government should consider how the matter could adequately be addressed.

A member (ANC) asked if the ICRC had experienced its symbols being used by warring factions, and if their personnel had in the past come under attack.

In reply, Mr Zahnd stated that this practice was known as 'perfidy', and that it was a war crime to use ICRC symbols to trick the enemy. This was especially dangerous, because a side that had been tricked into passivity in this manner once, would shoot the next time, even if Red Cross symbols were displayed.

Furthermore, Mr Zahnd informed the Committee that ICRC personnel had been the targets of attack, while others had been kidnapped. The ICRC might come under attack because of the cross symbol, since this sometimes leads to the incorrect assumption that the organisation is Christian. They depend on states to train their people to understand the principles of the Red Cross. The ICRC works in the interests of all humanity, and the emblem is their only protection. Mr Zahnd said it was more crucial when ICRC personnel are targeted for attack than anybody else, because that means that the safety net of humanity is at risk.

He concluded by saying that the ICRC has a compulsory mandate to work all over the world. States have a compulsory obligation to accommodate the ICRC within its borders, allowing its personnel to visit prisoners of war, attend to those wounded in combat, and generally bring relief in various situations.

The Chairperson thanked the team for their briefing, wishing the ICRC the best with their endeavours. War is an unfortunate consequence of how humans resolve conflict, to the extent that an institution such as the ICRC is required. It would, of course, be preferred that there was an absence of war, and therefore no need for the institution's services, but as that ideal is not possible, the Committee was glad for the presence of the ICRC.

As a last statement, the Chairperson said that the lack of ratification of certain pieces of the IHL was not deliberate. Rather, they were "omissions of default".

Meeting adjourned.

Appendix 1:
Presentation by Mr Patrick Zahnd (Delegation Head)
The International Committee of the Red Cross (ICRC) is very honoured to have been invited to brief the Portfolio Committee on Foreign Affairs, today, to speak about one of the most fundamental issue for any State : the issue of war and peace from a humanitarian perspective which is certainly directly linked to the issue of international peace and security in the world.

Today, the world - states and peoples - is taking its breath, at the eve of an announced war. We hear about its political, diplomatic and military dimension. We also hear - but less - about its humanitarian dimension. It is nevertheless a time more than ever to remind all - States and peoples - of what war does to people and communities, the enormous human suffering it generates as well as the imperative norms, universally ratified treaty and accepted customary laws applicable in armed conflict situations, real bottom line and safety net of humanity, meant to limit the effects of war for humanitarian reasons. This is a branch of public international law, the most ancient one, based on some of the most fundamental principles of general international law, called International Humanitarian Law, or IHL.

IHL strikes a balance between the military necessity and the laws of humanity. Its respect then does not, by any means, restrict the military's ability to wage war as there is no necessity to violate the laws of humanity.

IHL is meant to mitigate the harmful impact and contain the detrimental effects of war, to prevent indiscriminate and excessive suffering and destruction, to protect and treat humanely those who are not combatants, like civilians or those who are out of combat (wounded or sick combatants, PoWs), enemy or friend alike, and restrict the means and methods of warfare like prohibiting direct attacks on civilians, doing everything possible to minimize incidental civilian deaths and injuries and forced displacement, avoiding damaging vital structures such as food stocks, agricultural land and water supply systems, ensuring that combatants respect and facilitate the work of medical staff and facilities protected by the red Cross and red crescent emblems, ensuring that neutral and impartial humanitarian organizations such as the ICRC, can bring medical care and emergency relief to any persons and groups in need.

It also prohibits or limits the manufacturing, stockpiling, transfer or use of certain weapons or ammunitions for humanitarian reasons, because they do not discriminate between civilians, protected persons, and combatants, are inherently causing unnecessary suffering and superfluous injuries to combatants or might cause durable damage to the environment. We all know the importance of these fundamental principles and customary law and their clear application to the prohibition of the use of weapons of mass destruction such as biological and chemical weapons. It is also recognize (ICJ, July 1996) that the use of nuclear weapons would generally be contrary to the principles and rules of IHL. For the same humanitarian reasons many existing conventional weapons or ammunitions have been prohibited or its use limited: the anti-personal land-mines through the Ottawa Treaty, explosive or dum-dum bullets, laser weapons intended to blind…. In addition, all states have to ensure that any new weapon to be produced is IHL friendly. This field of IHL is in constant development and South Africa is a key actor on the multilateral scene in this respect.

Main conventions:

- GC and AP

- CCW 1980

- Ottawa

- ICC

- The Hague and 2 Protocols

- Art. 90 Fact Finding Commission

- Chemical and Bio weapons.

These are not niceties, utopian views, pacifist ideals. This is hard international law, based on some of the most imperative principles of international law, enshrined in the most universally ratified treaties which turned to be international customary law. All these so called High Contracting Parties have contracted this obligation of imperative nature to "respect and ensure respect" of those treaties, in all circumstances. It is imperative because of the very nature and purpose of IHL, safeguard of humanity in the worst situations: war. This obligation is also the main mechanism of implementation, monitoring and control of these treaties, with the ICRC.

RESPECT

States are required to do everything possible at national level to prevent violations

Universal ratification of all instruments

Full implementation at national level:

- legislation, regulations, practical measures: emblem and sanction

- integration within the armed forces

- within the police and security forces

- within schools, universities

- population as a whole

Development of IHL and role of states

Resolutions and commitments:

Numerous:

International Conference of the Red Cross

- UN GA

- OAU

- NAM

- UPI recommendations and ad-hoc committee on IHL

- African Parliamentary Conference on IHL for the protection of civilians during armed conflict, Niamey, 18-20 February 2002, Final Declaration.

Presentation by Mr Leonard Blazeby
South Africa has achieved much in terms of ratification and implementation of IHL treaties. The following treaties have been ratified by the Republic:

• Geneva Conventions: 31 March 1952
• Additional Protocols I and II: 21 November 1995
• 1980 Conventional Weapons Convention and its three original Protocols:13 September 1995

Protocol IV and amended Protocol II: 26 June 1998

• 1997 Ottawa Convention: 26 June 1998
• 1998 Statute of the International Criminal Court: 27 November 2000

There is however still work to do, as there always is in this growing and fluid area of international law.

• South Africa has not yet made a declaration pursuant to Article 90 of Additional Protocol I (recognising the competence of the International Fact-Finding Commission)

South Africa has not ratified the following treaties:

• 1954 Hague Cultural Property Convention and its two Protocols
• Amended Article 1 of CCW extending the scope to non-international armed conflict.

In terms of implementation, bringing into domestic law the State's obligations under the international treaties, South Africa has achieved the following:

• Domestic legislation for the International Criminal Court was passed in June 2002, the first such legislation in common law Africa,
• Draft legislation has been prepared for the Ottawa Treaty, banning anti-personnel mines. This legislation will come before Parliament on 8 April 2003. It is benchmark legislation and is being used as an example in other common law States.
• A draft Geneva Conventions Bill has existed for some time but is yet to come before Parliament.
• Work has commenced on domestic legislation to incorporate the Conventional Weapons Convention. This will be the first such legislation in a common law State anywhere in the world.
• A Cabinet memorandum has been prepared to create an inter ministerial committee for IHL, which will bring together the various Ministries that deal with IHL and act as a conduit for humanitarian issues. It will allow Parliament to ask questions of the body, which will be made up of experts, and will assist in the implementation of IHL treaties because all of the relevant bodies will be gathered together in the one place.

The ICRC thanks the Government and Parliament of South Africa for its efforts, the cooperation that we have had and the input that we have been allowed to make in striving for the universal ratification and implementation of IHL treaties.