The challenges of protection in war/armed conflict and humanitarian crises

“IHL and the evolving nature of conflict - applying existing norms in new settings”

1. Introduction
• First, I would like to thank the Norwegian Red Cross for organizing this seminar. The protection of civilians is one of the core concerns of International Humanitarian Law, and one which is frequently under pressure. Therefore, we need to stay permanently focused on the issue and the application of IHL.
• We live in times of change, and changes have also affected the nature of armed conflicts. The norms are as good as ever – the question today, however, is how to apply the norms of IHL in settings that are fundamentally different from those of the past.
• In my contribution I aim to address some of the challenges affecting the protection of the civilian population in situations of armed conflict. In relation to this I also wish to underline the general importance of emphasizing and complying with IHL.

2. Some new trends – applying existing rules in new settings
• As we are all aware, IHL is a well-established set of rules. The Hague and Geneva conventions were, however, founded on the lessons learned in some of the major, inter-state wars of the 19th and 20th century. One of the challenges we are facing today is how to apply these norms in a new context.
• Over the last decades we have witnessed a change in how war and armed conflict are conducted.  Many of today’s conflicts are fundamentally asymmetrical in nature. A part of this phenomenon is the  shift in where hostilities are taking place; from the classical battlefield into the civilian sphere.
• This has, among other factors, contributed to a significant increase in the loss of civilian lives in armed conflicts.
• Also, the number of civilians directly participating in hostilities is rising. Such participation can cause great danger for the civilian population as lack of distinction between civilians and combatants will generally lead to the combatants feeling less secure when encountering civilians, and therefore more likely to be targeted.
• In this context, I would like to stress that even though new challenges exist, such as asymmetrical warfare, this does not legitimize a de-emphasizing of IHL. On the contrary, breach of IHL by one party to a conflict, inter alia by placing military targets in or near densely populated areas, does not in any way permit the adverse party to exercise equally unlawful conduct. This also includes the prohibition of directly attacking the civilian population, as well as the obligation to abide by the principle of distinction and proportionality.
• We are aware that complying with IHL can be challenging for the belligerents. At times it may imply abstaining from actions which could have been military advantageous, in order to act in accordance with the principle of proportionality.
• In addition, a strict application of IHL might mean taking a greater risk on our side, including increasing the risk of losing military personnel. This is a price we simply have to pay when participating in armed conflicts, and a challenge that can only be met with training and military professionalism. It cannot justify breaches of the fundamental international norms of conduct in hostilities. 

3. Backslide/setback of recent years
• In this context I find it pertinent to add that several developments within the so-called “global war on terror” that was launched after 9/11 have represented a significant setback in both the application of, but also the universal respect for, the rules of IHL. Over-focused by the wish to counter the impending threats from terrorist organisations, humanitarian principles of international law were – at times - set aside.
• This relativisation of humanitarian principles was not just unfortunate for those concerned, such as prisoners of Abu-Graib, but has had a substantial negative impact on the international arena.
• The US, with a strong rule of law tradition, is fully capable of correcting its own policies, when the mood changes. Such adjustment in counter-terror policy was to some extent initiated in former president Bush’s second presidential term. President Obama has brought this to a new level, and has taken a series of positive steps to change the US approach towards greater compliance with IHL.
• In countries with a weaker democratic and rule of law tradition, such adjustments are not as easily made. The long-term effect of the “global war on terror” is likely to be more long-lasting – and more severe – here. 
• Therefore we should all call for and promote a joint international effort once again to enhance our collective focus on humanitarian issues in international humanitarian law.

4. Addressing challenges – development of IHL
• When it comes to addressing the challenges of applying existing rules to new settings I encourage the continuation of the good work initiated by the ICRC to provide in-depth analysis of previously unresolved matters of IHL. As already mentioned the regime of IHL is well-established. Hence in general what we need are not new norms and principles. What we need is to clarify the content and thresholds of the existing rules.
• ICRC’s recently published study on the notion of direct participation in hostilities by civilians, is an analysis based on expert meetings and research. The study provides an important contribution to the development of IHL as it strives to give answers to difficult and burning questions.
• In this respect I applaud the thorough work of ICRC, and encourage more similar contributions in the time to come.
• I would like to issue a warning, though; while I support the idea that we need further evaluation of the complexity of the borderline between civilians and combatants, we must not use this as a pretext to introduce a third category between the two. If people are not combatants they are civilians, and of course in some contexts, criminal civilians who should be tried according to national and international laws. The suggestion that there is a separate category of “unprivileged” or “unlawful combatants” is most unhelpful, and I hope that the further work on the topic of direct participation upholds the strong and fundamental principle of distinction in IHL.
• Secondly, the international community must continue to keep a strong focus on the mission to ban weapons that cause unacceptable levels of civilian suffering.
• I am proud to say that Norway took the lead in shaping the Convention to ban cluster munitions. The Convention was signed in Oslo in December 2008 and hopefully the Convention will enter into force as early as next year.
• The Convention has been signed by 98 states so far, including 20 of the members of NATO. The Convention is effectively establishing a norm under which any future use of cluster munitions would be highly stigmatizing.  
• I am also proud to say that Norway initiated the destruction of its stockpiles on 30 April this year. We strongly encourage other States to do the same, so that the Convention, when it is finally ratified, can hit the ground running.

5. The importance of emphasizing and complying with IHL
• To conclude I wish to stress the importance of showing a strong commitment to IHL.
• One of the most efficient ways of making sure that the armed forces abide by the norms and standards of IHL is to provide them with a clear set of rules. The rules must first be firmly implemented, and thereafter clearly communicated to the armed forces.
• The Norwegian Ministry of Defence has taken this task seriously, and have, inter alia, initiated and decided to fund the production of a new Military Manual. This will provide the armed forces with specific guidelines on how to act in various situations, and thus be a notable aid to both soldiers and officers.
• Another material component in the matter of complying with IHL is to widely and regularly disseminate knowledge on this field of law. A soldier survey was conducted previously this year, carried out in cooperation with the Norwegian Red Cross.
• The survey shows that there has been a significant improvement in knowledge of IHL among Norwegian troops. However, the survey shows that there is still room for improvement, and thus focus on teaching IHL will continue to be strong in the time to come.
• One significant trend in connection to the dissemination of IHL is the importance of spreading knowledge to combatants at every rank.
• One particular phenomenon is the so-called “Strategic Sergeant”. Small groups of soldiers and lower ranked officers might find themselves in operational dilemmas which require a sudden reaction. The consequences of their choice of action in these situations may at times be of significance to the military mission as a whole. The soldiers being well trained in IHL, and thus being able to act accordingly, is therefore essential.
• Abiding by the norms of IHL concerning protection of civilians is not only essential from a humanitarian point of view. It is also strategically important. We can take the current NATO operation in Afghanistan as an example. If the civilian suffering exceeds the military objectives achieved by ISAF, the result will be significant loss of support in public opinion.
• This will again threaten the success of the operation, which aims at providing peace and security in the region.
• Therefore, I can assure you that the Ministry of Defence takes its responsibility seriously when it comes to committing to IHL.
• Thank you for the attention and I wish you all a good seminar!