Contemporary Challenges to International Humanitarian Law: The ICRC Perspective

Bodies of men covered the battlefield; corpses were strewn over roads and ravines. The fields were devastated, wheat and corn flat on the ground, orchards ruined… The villages bore the scars left by bombs, rockets, grenades and shells. Houses were riddled with holes, shattered and ruined, and their inhabitants, who had been crouching in cellars without light or food for nearly twenty hours, were beginning to crawl out, looking stunned by the terrors they had endured.

Memories of Solferino, by Henry Dunant (edited quote)

This year marks two important anniversaries: 160 years of the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field and 75 years since the adoption of the four 1949 Geneva Conventions, the only treaties universally ratified. Together with other treaties and norms, they are the bedrock of international humanitarian law (IHL), a branch of public international law regulating the conduct of hostilities and protecting those who do not or no longer participate in hostilities. Pierre Kraehenbuehl, Director-General of the International Committee of the Red Cross[1], in his article addresses the challenges that IHL faces in contemporary armed conflicts.

IHL relevance and universality of the aspiration for humanity in war

The ICRC was born on a battlefield, where the foundations of IHL as we know it today were laid. In 1859, Henry Dunant, a citizen of Geneva, found himself amidst the harrowing aftermath of the Battle of Solferino in Northern Italy, where he witnessed the terrible suffering of wounded soldiers. This experience stirred Dunant into action, sparked by a profound outcry and a refusal to being indifferent towards the plight of people affected by war.

Solferino holds a significant place in history for the transformative actions that Dunant undertook. First, moved by compassion, he organized local civilians to provide aid to the injured and the dying. Subsequently, upon returning to Geneva, Dunant wrote ‘A Memory of Solferino,’ recounting his observations of the horrific battle and posing critical questions. He pondered the possibility of establishing relief societies to tend to wartime casualties, laying the groundwork for the ICRC and the Red Cross and Red Crescent Movement. Additionally, he raised the necessity of creating laws to improve the conditions of injured combatants, ultimately leading to the adoption of the First Geneva Convention in 1864, a pivotal moment in the evolution of modern international law.

The innate human instinct to reject the inevitability of suffering during times of conflict is a universal sentiment that transcends cultural and societal boundaries. Throughout history, various civilizations have demonstrated a recognition of the need to mitigate the atrocities of war. From the ancient proclamation by King Hammurabi of Babylon (“prevent the strong from oppressing the weak”) to the compassionate directives of Hazrat Abu Bakr during the Islamic conquest of Syria (ordering not to deceive, mutilate, kill children, the elderly or women), or the Somali traditional behaviors listed in the “biri-ma-geydo” (aimed at protecting those not involved in the fighting), norms were established to protect the vulnerable and uphold principles of humanity in times of armed conflict.

Even in contemporary times, the significance of humanitarian principles remains evident. The St Petersburg Declaration of 1868, prompted by the concerns raised by Russian War Minister Count Dmitry Milutin regarding the use of explosive bullets, which highlighted the need to contain “barbarous methods for which there is no excuse in the requirements of warfare” and exemplifies the enduring insistence on military necessity at times needing to yield to considerations and imperatives of humanity. This historical context emphasizes the importance of upholding moral standards in warfare, underscoring the enduring relevance of International Humanitarian Law irrespective of the circumstances or justifications for engaging in conflict.

While instances of violations of these laws persist globally — and we often witness lack of respect and lack of enforcement — the foundational principles of IHL serve as a beacon of guidance derived from the collective experiences of past conflicts.

There is nothing abstract or theoretical in the Geneva Conventions of 1949. They were not drafted by naive idealists but by individuals who had witnessed and survived the horrors of World Wars I and II, and who needed no reminder of humankind’s unlimited capacity for unspeakable cruelty against other human beings. These agreements reflect the stark realities of historical atrocities, from the Holocaust to Stalingrad, from Coventry to Hiroshima and beyond, and underscore the imperative need to regulate behavior in war in adherence to agreed international standards.

Challenges Faced by IHL

Compliance

One of the key challenges facing IHL today is non-compliance. This issue stems from a variety of factors including the lack of political will, ignorance, or distorted interpretations of the law for opportunistic or politicized reasons. Despite the existence of agreed and established norms, the primary cause of suffering during armed conflicts, as highlighted and experienced by the ICRC, is the failure to uphold these norms rather than any inadequacy in the existing rules themselves or a lack of rules.

Civilians are overwhelmingly the most affected victims of the disregard of IHL by both State and non-State armed groups.[2] They are frequently and often deliberately targeted, caught in the crossfire, and forcibly displaced, while the essential infrastructure necessary for civilian survival is destroyed. Such instances, as those witnessed in Ethiopia, Yemen, Afghanistan, Israel and the occupied territories, Syria, Somalia and in the conflict between Russia and Ukraine, occur frequently with insufficient regard for the binding principles of proportionality[3], precautions[4] and distinction[5].

Prisoners of war (and detainees in non-international armed conflicts) are at high risk of abuse, ill-treatment, and even summary executions. However, under IHL, they are entitled to protection from all forms of violence, intimidation, insults, and public scrutiny. Despite these provisions, the prevalent use of social media has led to the dissemination of photos and videos of captured combatants, undermining their rights and dignity.

The ICRC plays a critical role in advocating for the humane treatment of PoWs and detainees through confidential dialogues with both the detainees and the authorities detaining them. It is imperative that all parties to conflicts grant the ICRC access to all PoWs and detainees to uphold their rights and well-being. Indeed, PoWs in an international armed conflict have a right to being visited by the ICRC under the Geneva Conventions and withholding such visits is a breach of the obligations of parties under IHL.

The protection of medical infrastructure and personnel remains a significant concern, as they are frequently targeted in conflicts. Whether the injured treated in hospitals are civilians or military personnel makes no difference: medical installations must be preserved and the wounded and sick must be respected and cared for. The misuse of the red cross and red crescent emblems continues, and this is unacceptable.

In an increasingly polarized world, the politicization of IHL undermines its fundamental purpose of protecting individuals from the effects of violence, irrespective of their affiliation or the justifications for conflict. Double standards and selective condemnation of violations by parties further impede the proper implementation of IHL, risking reciprocal politicization and misinterpretations with detrimental consequences for all involved.

It is sometimes stated that respecting IHL makes fighting wars more difficult. It is the firm view of the ICRC that waging war without respecting the rules of IHL leads down a path to moral failure and makes the ultimate prospects for peace and reconciliation even more elusive.

New Technologies

The evolving landscape of armed conflicts, with over 120 conflicts classified by the ICRC worldwide, has seen a significant surge in the past three decades. Emerging technologies are reshaping conflict dynamics and adding new complexities to warfare. Cyber operations, autonomous weapons, and artificial intelligence are altering the conduct of conflicts, presenting both perceived military advantages and substantial measurable risks.[6]

While new technologies offer enhanced capabilities, such as rapid decision-making and operations in communication-restricted environments, they also pose significant dangers. Incidents like cyber-attacks on hospitals during the COVID-19 pandemic have disrupted vital healthcare services, underscoring the vulnerability of critical infrastructure and the need for stronger safeguards.

The ICRC has experienced cyber breaches compromising the personal data of vulnerable populations, emphasizing the urgent need for digital protection measures, such as a proposed ‘digital emblem’ concept to safeguard individuals in cyberspace during armed conflicts.

The deployment of autonomous weapons and AI systems introduces unpredictability and accelerates operational tempo beyond human control, amplifying the challenges in adhering to IHL standards. The ICRC advocates for the prohibition of autonomous weapons targeting humans and underscores the indispensable role of human judgment in decisions affecting lives and dignity, even in AI-supported military operations.

Urbanization of warfare

Gone are the days when battles were fought on traditional battlefields like Kosovo Polje, Kulikovo field, Solferino, or the Somme. Today, conflicts increasingly unfold in urban areas, with civilians bearing the brunt of the violence in cities such as Aleppo, Gaza, Khartoum, and Mariupol. Military operations in urban settings present unique challenges due to the complex nature of fighting in such environments.

The proximity of civilians poses significant obstacles for distinguishing between combatants and non-combatants, impacting the ability of attacking forces to identify military targets accurately while minimizing harm to civilians. Moreover, the use of artillery and aerial bombardments in urban areas further complicates efforts to protect civilians and civilian infrastructure while targeting military objectives.  

The ICRC recognizes that modern armed conflicts, particularly asymmetric ones, pose serious challenges to upholding the principles of distinction, precaution and proportionality in IHL. It is imperative to confront those challenges and uphold the rules that safeguard civilians, who often suffer the most in conflict settings.

Terrorism and counterterrorism

Acts of terrorism fundamentally violate the principle of humanity and contradict the core tenets of IHL. The ICRC unequivocally condemns all such acts, regardless of their perpetrators, and irrespective of whether they occur within the context of an armed conflict or not.

While states have a legitimate duty to ensure the security of their populations, there exists a concerning misconception that IHL either does not apply or applies incompletely to individuals or groups labeled as terrorists and their families. This ambiguity is further compounded in the context of the «war on terrorism,» where the legal status of captured fighters often requires intricate case-by-case evaluation.

The ICRC has expressed significant humanitarian concerns regarding the treatment and prospects of foreign fighters and their families. The perceived threats and stigmatization associated with these individuals elevate their vulnerability to rights violations. The plight of women and children among foreign fighter populations is often overlooked and demands careful attention on a case-by-case basis. The ICRC emphasizes the imperative of treating foreign fighters and their families humanely and in accordance with international law, despite the complexities involved in resolving their status during or after armed conflict.

Challenges to operational response

The states party to the Geneva Conventions have entrusted the ICRC with a distinct mandate as an impartial, neutral, and independent organization dedicated to protecting the lives and dignity of conflict victims, as well as promoting and upholding international humanitarian law. Nevertheless, contemporary armed conflicts present several operational challenges to the ICRC’s mandate.

Ensuring access to affected populations and detainees remains a critical challenge for the ICRC’s operational response, with restrictions imposed by states, sanctions, or counterterrorism measures impeding humanitarian aid delivery. Despite advocating for humanitarian exemptions and dialogue on multiple fronts, the ICRC encounters obstacles in gaining adequate access to populations in need. The security of ICRC personnel is equally paramount, encompassing physical protection from attacks and legal safeguards to shield them from prosecution for their humanitarian work, regardless of the operational context.

Recent experiences have demonstrated that targeted measures can carve out humanitarian space even within counterterrorism frameworks, leading to the adoption of humanitarian exemptions in some instruments. Yet, there remains a critical need for comprehensive policy and legal measures that uphold principled humanitarian action across all contexts.

Criticism and doubts regarding the ICRC’s neutrality frequently arise in conflict environments where parties seek endorsement of their narratives and objectives. It is important to understand that ICRC staff was not born neutral. But, in order to fulfil our mandate, we do not take sides in a conflict, because we believe that is the only way possible to work in highly polarized environments. Maintaining consistent neutrality enables the ICRC to operate and facilitate humanitarian actions on all sides of a conflict. We cannot be neutral in one conflict and not neutral in another. Upholding principled neutrality is fundamental to the ICRC’s mission of alleviating suffering and supporting those affected by conflicts across the globe.

Being neutral is sometimes misunderstood as being indifferent. In the case of the ICRC, it could not be further from the truth. It is our neutrality that allowed us to play a crucial role in the release of hundreds of Yemeni prisoners, Israeli hostages, and Palestinian detainees, just as we facilitate the transfers of mortal remains of fallen soldiers in the conflict between Russia and Ukraine, in our role of neutral intermediary.

Misinformation, disinformation, and hate speech pose significant challenges to humanitarian operations, with the ICRC often targeted by false accusations (espionage, money or weapons transfers, involvement in organ trafficking) in conflict zones. These baseless campaigns not only endanger the humanitarian workers striving to provide aid but also jeopardize their capacity to protect and assist populations affected by conflict, ultimately impacting the lives of those in need.

More importantly, the impact of harmful information is directly felt by the people affected by the conflict. Misinformation exacerbates polarization, promotes dehumanization, and fosters the harmful practice of labeling entire communities as ‘others.’ Such falsehoods create an atmosphere of extreme danger and violence for civilians in conflict zones.

Conclusions

The question often arises as to whether IHL remains relevant in today’s world. The media usually portrays instances of grave atrocities where IHL is violated and there is no denying their existence. However, what often goes unnoticed is the countless lives saved through the application of the Geneva Conventions and the suffering that is avoided. Every day, ICRC colleagues diligently visit prisoners, trace missing loved ones, and reunite families globally, among many other humanitarian activities. Their success in these endeavors stands as a testament to the indispensable role of these conventions.

Remarkably, numerous instances of demobilizing and socially reintegrating thousands of child soldiers have taken place in countries like CAR, Colombia, Chad, DRC, Nepal, the Philippines, South Sudan, Sierra Leone, and Sudan over decades. The fate of missing persons has been resolved and the deceased honored in countries such as Argentina, Armenia, Azerbaijan, Bosnia and Herzegovina, Colombia, Croatia, Georgia, Iran, Iraq, Kuwait, Peru, and the UK. Detainees have been released in Yemen, Indonesia, Libya, Nepal, Niger, and the Philippines, all because warring factions were willing to adhere to IHL.

In coordination with Ukraine, Russia and the UN, the ICRC facilitated three safe passage operations for civilians out of Mariupol and its environs. More than 550 wounded and ill individuals received assistance through transportation and medical evacuations from areas severely affected by conflict, including the Luhansk, Donetsk, and Mykolayiv regions.

NATO’s International Security Assistance Force established the Civilian Casualty Tracking Cell in 2008 to monitor casualties in Afghanistan, leading to revised tactical directives and a decrease in civilian casualties caused by pro-government forces the year after.

Following the armed conflict between Colombia and the FARC, multiple agreements were brokered between the parties to facilitate the efficient search, identification, and repatriation of individuals missing within the conflict’s context.

While challenges persist, substantial achievements have been realized. Thus, we urge everyone to continue embracing these conventions as they serve a vital purpose. There is an urgent need to build a culture of compliance and to emphasize the way in which applying IHL sets the foundation for a resumption of dialogue between parties. Every peace process begins with small humanitarian steps. As we commemorate the 75th anniversary of the Geneva Conventions this year, we emphasize that even in warfare, there exist boundaries that must be respected.