6 October 1992
O P I N I O N
on the activities of the International Committee
of the Red Cross (ICRC) (1989-91)
(Rapporteur: Mr AMARAL, Portugal, Soc. Dem.)
The report on the activities of the International Committee of the Red Cross (ICRC) is of particular significance this year because of the international climate. I am referring to the first conflicts to break out in Europe since the end of the second world war, namely those on the territory of what used to be Yugoslavia. As I write, the burning question is whether military action should be taken against Serbia in order to put an end to violations of humanitarian law.
This is also the first time that the Committee on Legal Affairs and Human Rights has been requested to formulate an opinion on this report, which traditionally is presented periodically to the Council of Europe Parliamentary Assembly.
The report presented by Mr Flückiger on behalf of the Committee on Migration, Refugees and Demography provides a comprehensive survey of the recent and current activities of the ICRC and the scope of its work.
Accordingly, in my capacity as Rapporteur for an opinion of the Committee on Legal Affairs and Human Rights, I shall consider just two issues: firstly, compliance with international humanitarian law and its implications for members of the international community, and secondly, the topical and rather controversial problem of the "right or duty of intervention".
I. Compliance with international humanitarian law
Article 1 of the Geneva Conventions of 12 August 1949 obliges the Contracting Parties "to respect" and "to ensure respect" for humanitarian law "in all circumstances". In order to meet this legal obligation, the Parties must take action against any High Contracting Party which fails to respect the law. Consequently, ratification of the Geneva Conventions by all states, including those which have just come into being, is of crucial importance for the application of humanitarian law. It is, moreover, wholly appropriate that the draft resolution presented by the Committee on Migration, Refugees and Demography should invite those member states of the Council of Europe which have not already done so to ratify the protocols to the Geneva Conventions.
In this connection it should be noted that a new institution, the International Fact-Finding Commission, came into being on 25 June 1991. To date only twenty-nine states have accepted its authority. All states which have not yet accepted this new organisation's authority are urged to do so without delay, as a united front is essential if humanitarian law is to be respected.
The Commission, provided for in Article 90 of
Protocol I (1977), has two main tasks:
- to investigate alleged serious violations of the Conventions and Protocol. It is competent to investigate the facts, but not to interpret the law or sit in judgment;
- to lend its good offices with a view to helping offenders comply with the provisions of the Conventions and Protocol.
Accordingly, I propose that the following be added to the end of paragraph 10.vii of the preliminary draft resolution: "and to accept the authority of the International Fact-Finding Commission."
II. Right or duty of intervention
Since the 1980s, and particularly in the wake of the Gulf conflict, many voices have been raised in support of a right of intervention, led by medical NGOs with the subsequent backing of certain states. Certainly, public opinion has been outraged by the spectacle of civilian populations denied assistance because the state on whose territory they are refuses to allow international organisations access. But the concept of a right of intervention raises problems, which have been the subject of debate for more than a year.
In an article on the right or duty of intervention1, published in the May-June 1992 issue of the International Review of the Red Cross, Yves Sandoz, a member of the Executive Council of the ICRC, argues that the use of armed force to ensure that aid reaches the populations for whom it is intended cannot be justified by international humanitarian law, since the obligation to ensure respect for the law as laid down in Article 1 of the Geneva Conventions specifically precludes the use of force.
Attention must be drawn to the specific role played by the ICRC in consistently providing assistance in wartime on the basis of the principle that such assistance must be agreed to by the states involved.
For the Red Cross international humanitarian law is based on states' consent. Intervention runs counter to this fundamental principle and undermines the principle of security in international relations.
The ICRC is bound to observe strict neutrality, on which its credibility depends, even if the principle is frustrating for NGOs, which see neutrality as debilitating. But although intervention reflects an understandable concern to take rapid action to help the victims of armed conflicts, be they international or domestic, it entails a definite risk of politicisation, which could undermine humanitarian law because states might be unwilling to sanction any intervention whatsoever.
At the risk of disappointing some people, who saw the right of intervention as the beginning of a new legal concept, it seems clear that instead we should do our utmost, in legal terms, to apply existing law, which should enable the ICRC to achieve its objectives by disseminating the principles of humanitarian law in all countries.
Reporting Committee: Committee on Migration, Refugees and Demography (Doc. 6670)
Committee for an opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Resolution 921 and Reference No. 1786 of 8 May 1992
Draft opinion: Unanimously approved by the committee on 6 October 1992
Secretaries to the committee: Mr Plate and Ms Coin
1 1 Official English title: "Droit" or "devoir d'ingérence" and the right to assistance: the issues involved.