Opening Presentation by Professor Michel Veuthey

Michel Veuthey's Opening Presentation

1st Plenary Session, September 4th
As the President of the ICRC highlighted this morning, the question of the applicability of international humanitarian law is of fundamental importance. This will be the object of this first panel which will be divided into two sessions. The first will focus on the concept of peace operations at the operational level rather than the legal level. The second session will focus on the applicability of international humanitarian law to peace operations. This, as we will see, remains a topic open for debate.

The first speaker in this initial section will be Madame Corinna Kuhl, Chief of the Peacekeeping Best Practices Section of the United Nations, who will speak on “The evolution of peace operations, from interposition to integrated missions”. Following Mrs. Kuhl’s presentation will be loyal friend of the Institute, Professor Louis Balmond from the University of Nice who will present to us “The legal framework of peace operations, from Chapter VI to Chapter VIII of the United Nations Charter”. To conclude this first section, there will be forty minutes to respond to questions.

As regards the question time, I’d like to draw your attention to the forms you have each received in your folios which are for submitting written questions. If you would like to ask questions of the speakers, please fill these forms out and hand them to one of the Institute’s representatives who are present in the room. The speakers will give priority to written questions and then will give the floor to oral questions if time permits.

In the second section we will hear three speakers. Dr. Daphna Shraga, Senior Legal Advisor of the Office of Legal Affairs at the General Secretariat of the United Nations will speak on “The legal framework of peace operations, from Chapter VI to Chapter VII of the UN Charter.” Following Dr. Shraga’s presentation will be Professor Marco Sassoli from the University of Geneva, speaking on “International humanitarian law in peace operations, material scope of application”. The final speaker in this second section will be M. Gert-Jan Van Hegelsom, Legal advisor to the Council of the European Union. M. Van Hegelsom will speak on the subject of “International humanitarian law and operations conducted by the European Union”.

Following these speakers, we will have one hour to respond to your questions.

Before giving the floor to these notable speakers, many of whom I call friends, allow me to add a few personal words.

Three different approaches may be taken when considering the applicability of international humanitarian law in peacekeeping operations. I believe these approaches should be complementary and, indeed, may serve to strengthen each other: a legal approach, a military approach and an ethical approach.
The first approach, being the legal approach, will be the principle, although hopefully not exclusive, focus of our discussions. This approach is based principally on conventional and customary international humanitarian law. Nevertheless, we must not forget the importance of the various human rights instruments, both universal and regional, nor the domestic laws of the peacekeepers’ countries of origin and of the territory in which they are operating. This question of applicability is not a new one: at least since Korea in 1950 and the operation in the Congo in 1960, this issue has been discussions between the ICRC and the Secretariat of the United Nations. Additionally, while the Bulletin of the Secretary General of August 12, 1999 attempted to answer the question, the debate surrounding the applicability of IHL by the UN is not a settled issue.

The question of the applicability of law is never simple. What type of conflict are we facing? International? Non-international? It often happens that we must ask whether we are dealing with one sole type of conflict, a combination thereof. And often we are confronted with different phases of conflicts or even simultaneous armed conflicts. The next question that must be asked is which rules of humanitarian law, being the Conventions of 1949 of the two Additional Protocols and customary law, are applicable in the material, temporal, territorial or personal scope. Without having the time to go in depth, one particular provision must not escape our attention: Article 3 common to the four Geneva Conventions of 1949 as the minimum applicable norms in all circumstances. Article 3 common contains the essential minimum guarantees that to be afforded to those who are not or are no longer taking an active part in hostilities. This provision was recognised in 1986 as reflecting the “elementary considerations of humanity” applicable in all armed conflicts by the International Court of Justice in the Nicaragua case of 1986 and is generally recognized as reflecting customary international law.

In concluding this brief legal introduction, we must not forget that in all circumstances, both in times of peace and times of armed conflict, the minimum guarantees enshrined within Article 3 are also reflected in the non-derogable provisions of Human Rights instruments.

The second approach is military. The military forces in action must have clear rules on the treatment that must be afforded to wounded and captured persons and to civilians. The application of the principles of international humanitarian law is a fundamental aspect of military discipline and must form the base of the rules of engagement (ROE) that are applicable independently of precise legal analysis.
The third and final approach is the ethical approach. Ethics in peacekeeping operations can take several forms and build upon individual and collective morals:
· The first being the military honour of an army or indeed of any military unit;
· The second takes us back to international humanitarian law with the principles enshrined within the Martens Clause which applies “in cases not covered by the law in force” and appeals to the demands of the public conscience.
· The third is that the violation of humanitarian law can ruin the legitimacy of a military unit or an operation as a whole. These violations will be all received even more negatively if they go against the cultural or religious values of the local population.

Allow me to finish this introduction with a quote from Albert Camus for you to consider in relation to the applicability of humanitarian law:

“To fight for a truth without destroying it by the very means used to defend it”