From the involvement of the ICRC and all states—to the involvement of a few selected experts and a few states

Another observation is that the role of ICRC in developing new soft law instruments applicable in armed conflict has diminished and now seems to be rather limited. This development seems to be at odds with the agreement among states that one of the important roles of the ICRC is ‘to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof (emphasis added). This is laid down in the Statutes of the International Red Cross and Red Crescent Movement, adopted by, among others, all states parties to the Geneva Conventions on the Twenty-Fifth International Conference of the Red Cross, in October 1986.79

Also in practice, the ICRC has historically played a crucial role in developing new rules for armed conflict. In fact, it has been claimed that the ICRC has been the ‘main driving force behind the development of international humanitarian law for 140 years’.8°

The role of the ICRC in preparing new IHL treaty law has typically been threefold, namely (i) to take the initiative and seek the support of states for a new IHL treaty; (ii) to prepare the draft treaty that is used for deliberations at an International Conference comprising all states parties (i.e. all states, since the Geneva Conventions have been ratified by all states); and (iii) to participate in the deliberations at the International Conference in which all states are participating.[1] [2]

The existing IHL hard and soft law standards drafted and adopted with the assistance of the ICRC and the Red Cross Movement have been adopted pursuant to a transparent, inclusive, and open consultative process involving all states.82 In terms of the more recent soft law instruments, it is evident that the role of the ICRC has been limited to that of a passive observer on the same footing as other international organizations such as the UN, NATO, EU, and the Council of Europe. The new soft law instruments have been developed by: a small group of selected international experts (often the same experts); a small group of selected states (see section 3); or a combination of selected experts and selected states (e.g. the HPCR Manual on International Law Applicable to Air and Missile Warfare, which was drafted by a small group of experts and then presented to a small group of selected states for their views and comments). It is not clear how the experts and states involved have been selected.

Whether the reason for this is that the ICRC has deliberately been excluded from the drafting process, or rather that the ICRC itself has decided to play a less active role in the drafting of soft law instruments, is not clear. In any event, it is clear that there has been a remarkable change in who is developing new IHL rules: from the involvement of ICRC and all states, to the involvement of a small, selected group of experts and a few selected states.

Furthermore, it is clear that the new soft law IHL instruments developed by a few experts and/or a few states in what appears to be a more closed and exclusionary process will not have the same broad legitimacy as the IHL rules that have been developed by the ICRC and adopted at an international conference including all states. The ICRC has, as described, an international mandate from all states to develop new rules applicable in armed conflict and, furthermore, IHL treaty law has traditionally been discussed and adopted by all states at international conferences often organized by the ICRC.

  • [1] Bugnion (2004): 3.
  • [2] For an example of a transparent, inclusive, and open drafting process, see the existing ICRC initiatives on strengthening compliance with IHL and the protection of persons deprived of their liberty.More information about these initiatives can be found at: .
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