STORY IN FOCUS. INTERVIEW WITH DR. CORDULA DROEGE, CHIEF LEGAL OFFICER AND HEAD OF THE LEGAL DIVISION AT THE INTERNATIONAL COMMITTEE OF THE RED CROSS
Q1: Please can you explain your role as Chief Legal Officer and Head of the Legal Division at the International Committee of the Red Cross (ICRC)?
The ICRC has been given the mandate by States to be the Guardian of International Humanitarian Law (IHL), to work for the understanding and dissemination of knowledge of IHL, for its faithful implementation during armed conflicts, and to prepare any development of IHL if needed.
As Chief Legal Officer, I lead a team of committed IHL experts and humanitarians to put this mandate into practice every day, supporting States in implementing IHL in their domestic laws and policies, supporting the ICRC’s operational dialogue with parties to conflicts to respect IHL, conducting research and development into novel and complex legal issues as well as working towards the development of international rules limiting the use of certain weapons.
Q2: During your time with the ICRC, what trends have you witnessed in relation to challenges in ensuring compliance with International Humanitarian Law by parties to armed conflicts?
One of the trends we have witnessed in recent years is that it is becoming more difficult to engage with parties to armed conflict about their obligations and responsibilities under IHL. There are a number of reasons for this, including the limits to our own access and security; the fragmentation of armed groups; the involvement of multiple actors in conflicts with overlapping hierarchies and motives; and, the increasing number of support and partner relationships, where different actors support one another through military partnerships, alliances and coalitions.
Another recurring challenge is ensuring that warring parties recognize the applicability of IHL to all persons affected by armed conflict, regardless of their actions. As some actors solidify their reputation for brutality, there are also signs of an alarming response from others: the notion that some individuals or groups are so bad that they – and sometimes even their families or communities – are beyond the humanitarian protection of IHL. There is an urgent need to unequivocally reject such misconceptions and to reassert that, even though terrorism flagrantly contravenes the basic principle of humanity, it must be fought in a manner that is exemplary in its respect for the law. IHL reaches everyone affected by armed conflict, without exception.
That said, over the past decades, there have also been significant achievements in terms of ratification of IHL treaties, widespread integration into domestic law and military doctrine, and frequent reaffirmation and implementation of IHL. Hospitals that are not attacked, areas from which civilians are evacuated, detainees who are treated humanely, do not make the headlines, but they exist. The many instances in which IHL is respected by parties to armed conflict demonstrates that existing IHL rules, when respected, serve their purpose of reducing the suffering of people living in situations of armed conflict.
Despite these achievements, however, noncompliance with IHL remains an intractable problem with grave humanitarian consequences for those affected.
Q3: What are some of the ways in which the ICRC addresses these challenges?
With the lack of respect for IHL still being the most important challenge, reaffirming, clarifying and promoting these rules remains a key aspect of our work – with the ultimate objective of influencing the behaviour of parties to armed conflicts to enhance respect for IHL.
Factors influencing the behaviour of parties to armed conflict may differ. The ICRC’s Roots of Restraint in War study found that for the State armed forces included in that research, higher levels of IHL training resulted in greater adoption of norms of restraint by combatants. It also found that informal norms have a strong bearing on the behaviour of parties to conflicts and that it is important to also focus on the values underpinning the law. Recognizing these differences, and adapting confidential bilateral dialogue as relevant, is an important part of this.
To complement the direct dialogue with parties to armed conflict, the ICRC has also been developing its engagement with actors supporting these parties through its Support Relationships in Armed Conflict initiative[i]. Today, behind most parties to conflicts, there are States that offer support through financing, providing weapons, training and equipping, sometimes fighting alongside them. The ICRC considers that such support carries risks, but also potential for positively influencing the protection of civilians. With this in mind, the ICRC has started identifying practical measures that actors can use throughout their support relationship to reduce the negative impact of armed conflict on affected populations. These include assessments prior to providing support, mechanisms to identify and address partner misconduct while support is provided, and to review, limit, or suspend the support if needed. Practical measures may also include continuous, concrete and context-specific IHL training and mentoring as well as capacity building and assistance with a view to implementing IHL obligations where needed. Through continued engagement and sharing of experiences, the ICRC aims to facilitate an understanding of good practices to improve the protection of civilians and those hors de combat in support relationships.
Respect for IHL starts at home, and the ICRC continues to support States in their efforts to integrate IHL obligations into domestic law and military training, planning and decision-making. A resolution on this precise issue was passed at the 33rd International Conference of the Red Cross and Red Crescent in December 2019; it provides a road map of concrete actions that States and National Red Cross and Red Crescent Societies can take domestically, including in cooperation with other actors, to reinvigorate implementation of IHL at all relevant levels.
Q4: Currently one issue one hears about is conflict and hunger. What role does IHL – and better respect for these rules – play in addressing the adverse impacts of armed conflict on food insecurity?
While it is important to address the humanitarian consequences of hunger, preventing food insecurity from happening in the first place is also critical. Ensuring greater respect for IHL is an important part of this.
As I have mentioned, IHL contains important rules aimed at protecting civilians and ensuring that their basic needs are met. In addition to the rules I have already referred to, intentionally using starvation of the civilian population as a method of warfare, including by denying access of humanitarian relief to civilians in need, is absolutely prohibited. It is also prohibited to attack, destroy, remove or render useless objects indispensable to the civilian population, including foodstuffs and drinking water installations and supplies. If respected, these and other rules of IHL can play a key role in reducing food insecurity and preventing or mitigating the risk of famine or starvation. Compliance with these rules remains critical. Ultimately, respect for IHL is a choice, and food insecurity and famine are the result of choices made by parties to conflicts and individuals.
Investigations into alleged violations of IHL and the prevention and repression of serious violations of IHL are a critical part of ensuring accountability and enhancing respect for IHL on the ground. A welcome development in this respect is the unanimous adoption by the Assembly of States Parties to the ICC in December 2019 of a proposal to extend the war crime of starvation to non-international armed conflicts – civil wars in common parlance – which constitute the great majority of wars today. It is now important that States Parties ratify this amendment and incorporate starvation as a war crime, irrespective of the nature of the armed conflict, in their domestic legal frameworks, as in fact several States have done.
The ICRC sees first-hand how armed conflicts lead to enormous suffering, often because of violations of the law, in particular for civilians. Armed conflict – often compounding other factors of fragility – can have adverse impacts on food security, which can result in famine. For instance, conflict can directly impact food security when stocks are looted or destroyed, basic infrastructure is damaged, or agricultural land is rendered unusable. Situations in which humanitarian personnel are directly attacked or when the delivery of relief supplies is hindered are other examples of how situations of armed conflict can lead to heightened food insecurity.
Populations caught in situations of armed conflict – weakened by years of fighting, destruction and eroded essential services – are particularly dependent on humanitarian relief for their survival. Access to populations in need by impartial humanitarian organizations is essential for reducing the impact of armed conflicts, including on food security. To ensure access and protect essential services, better respect for IHL by parties to the conflict, in particular of the rules on the conduct of hostilities and those governing humanitarian assistance and access, remains critical. For the ICRC, this means engaging with all parties to conflict in an effort to gain acceptance and access to people in need. As I mentioned previously, it also means engaging with other stakeholders who can positively influence the behaviour of parties to conflict.
Q6: How have access issues relating to humanitarian aid been compounded by the COVID-19 pandemic in situations of armed conflict?
To contain the rapidly spreading coronavirus, health authorities around the globe have introduced increasingly stringent precautionary public health and containment measures, such as strict hygiene protocols, restrictions of movements and closures of businesses and borders. While these measures are necessary, they have an enormous social and economic impact. They must comply with international human rights and other standards. Containment measures may prevent people from obtaining humanitarian goods and services, fleeing violence or seeking protection. The travel restrictions being put in place by States are creating new challenges in how we get people and supplies where they are needed. The environments where we work were already highly unpredictable and volatile. These exceptional measures add another layer of complexity for how we move supplies and staff and how we take care of our teams’ well-being.
States are entitled under IHL to prescribe measures of control and other technical arrangements based on health considerations to regulate humanitarian activities. However, such measures and arrangements cannot, in practice, end up amounting to a refusal of consent, unduly delay humanitarian operations, or make their implementation impossible. It is a matter of finding practical solutions in a constant dialogue, and we are working with suppliers and engaging with authorities to find practical arrangements that allow us to continue to operate.
Q7: The WFP estimated that as a result of COVID-19, an additional 160 million people in low- and middle-income countries will face acute food insecurity, citing a food pandemic. How has food insecurity and challenges with access to populations in need been compounded by the COVID-19 pandemic in situations of armed conflict?
People living in situations of armed conflict, with oftentimes degraded or collapsed essential services such as water, sanitation and health care, are among the most vulnerable to the COVID-19 pandemic. For example, there is a high likelihood of an increase in undernutrition and micronutrient deficiencies among the poorest populations because of decreased income as a result of the COVID-19 pandemic. New survey data of the ICRC shows that the economic consequences brought about by the pandemic – reduced salaries, savings, remittances, and increased prices of basic items – are likely to deepen economic hardships. In countries at war, millions already live with little or no health care, food, water and electricity, as well as volatile prices and destroyed infrastructure. COVID-19’s impact could set in motion a vicious cycle of lost income, deepening poverty and hunger.
As an immediate answer, strengthening health, water and sanitation systems in conflict zones, to prevent and manage infectious disease transmission, must become a priority; social protection programmes must be maintained or extended; humanitarian activities focused on food security, nutrition and livelihoods must be reinforced.
However, let’s not forget that the extreme vulnerability of people in conflict zones to COVID-19, the culmination of degraded or collapsed essential services such as water, sanitation, and health care, is in significant part the result of a disregard over many years of States’ and other belligerents’ obligations – as set out in international humanitarian law and international human rights law – towards populations under their control. Again, COVID-19 is a protection crisis. Ensuring the protection of essential services during the current pandemic begins with respect for IHL.
[i] ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Recommitting to Protection In Armed Conflict On The 70th Anniversary Of The Geneva Conventions, ICRC, Geneva, 2019, pp. 75-76: https://www.icrc.org/sites/default/files/document/file_list/challenges-report_enhancing-respect-for-ihl.pdf.