Opening address at Workshop on International Humanitarian Law and the Protection of Civilians

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Excellencies, ladies and gentlemen, 

It is a great pleasure for me to co-host this event together with my distinguished colleague, Foreign Minister Natalegawa, and to see so many of you here.  

Civilians are the prime focus of this workshop. They are at risk in many ways – and due to many hazards. During the last fortnight we have been reminded of this by the natural disasters that have hit several parts of Indonesia. I would like to extend my condolences to the President of Indonesia. While we can do many things to prepare ourselves for the consequences of the forces of nature, we cannot control them.

However, when it comes to man-made activities and individual decisions affecting people’s lives, it is up to us – as members of the international community – to promote both rational and moral behaviour, and to protect those who are in a vulnerable situation.

The fact is that too many civilians suffer the consequences of acts of violence committed in situations of armed conflict around the world. And women and children are particularly at risk.

Some weeks ago we commemorated the 10th anniversary of Security Council resolution 1325 on women and peace and security. Five years ago we agreed in the World Summit Outcome Document to ensure the protection of civilians – in particular women and children – during and after conflicts. We are still committed to doing so.

In December 2008 in Oslo, at the Convention on Cluster Munitions Signing Conference, we celebrated a significant step towards banning a category of weapons that causes unacceptable harm to civilians, both during and after armed conflicts. Later this week we will work together at the first meeting of States Parties to the convention in Laos.

However valuable these efforts are, they are still not enough to fully address the issue at hand. The question is: How can we, as governments, representatives of the military and humanitarian organisations and the rest of civil society, join forces to better protect civilians from the consequences of armed conflict?

We must remain determined to reclaim the protection of civilians in armed conflicts. We have to ask ourselves – first – what actually happens in modern combat situations during armed conflict, and – second – what can be done to reduce the harm to civilians in such terrible situations.

The workshop today and tomorrow focuses on international humanitarian law and the protection of civilians. These are not separate issues, of course. The prime aim of international humanitarian law is precisely to protect civilians and all persons who do not, or no longer, take direct part in hostilities, from the risks associated with armed violence.

I believe that existing international humanitarian law is an efficient tool for safeguarding civilians at risk and provides a robust legal regime. It is adaptable even to complex situations of armed conflict, in changing times and in different circumstances.

If only all parties to conflict would stick to the letter and spirit of this law, much would already have been achieved. To reclaim the protection of civilians in armed conflict is therefore – first and foremost – a matter of reclaiming respect for international humanitarian law in practice.

Ladies and gentlemen,

Let me take this opportunity to share with you a few more reflections on the following issues:

• first, the value of international humanitarian law as a global achievement, a global good and a global responsibility;
• second, the importance of applying international humanitarian law in situations of armed conflict – irrespective of the underlying causes of conflict;
• third, the importance of applying international humanitarian law equally to all parties to armed conflict; and
• fourth, the importance of promoting knowledge and understanding of international humanitarian law – to ensure that parties to armed conflict implement its standards in all their conduct.

Now, first, it can be argued that we are starting from an advantageous position:

Today there can be no doubt that international humanitarian law represents a global asset, a set of shared values, a common language of rights and legitimacy, and a universal benchmark for evaluating claims of justice and responsibility. In this field of international relations – perhaps more than in any other field – the language of law dominates our dialogue. It unites almost all factions involved – ministers, officials, and representatives of the military or civil society.

Traces of this universal language may be found in the philosophies, ethics, laws and strategies developed by many great civilisations, from ancient to modern times. International humanitarian law is not a Northern, Eastern or Western idea. Examples: The much-cited Chinese source Sun Tzu advises temperance in the application of force, and discipline in the formation of a military organisation. “Manoeuvring with an army is advantageous; with an undisciplined multitude, most dangerous,” he says. Similar observations could also be made in modern armed conflicts. The prophetic Hadith saying “do not mutilate or kill women, children or old men,” has, in the Islamic tradition, consistently been interpreted as a duty to protect vulnerable groups in war. Another important historic source, Hugo Grotius, from the 17th century, demands of anyone taking part in war that they scrupulously observe the rules of the law of nature pertaining to the execution of war.

I believe that the paramount rule that obliges all those who wage war not to target any civilian person who is not taking part in hostilities has many sources and multiple justifications. This is both law and norm.

And I also believe that anyone who deliberately and systematically flouts this globally recognised rule, law and norm, places himself outside the standards and norms of the international community. It is indeed a universal value.

Today the core provisions of international humanitarian law embodied in the Geneva Conventions of 1949 have been ratified by 194 states. That makes their standards universally applicable. The two additional protocols to the Geneva Conventions, adopted in 1977, have been ratified by 168 and 164 states respectively.

In 2005 the International Committee of the Red Cross published a study of rules that have been identified by the authors as part of customary international law, applicable to all parties in armed conflict. The body of law is really complete.

And in parallel to the gradual universalisation of the standards of international humanitarian law, we see the growing importance of global institutions. They are vested with powers on behalf of the international community – first – to engage with parties to armed conflict, and – second – to put an end to impunity for serious violations of international humanitarian law, regardless of who the perpetrators are.

Over the past two decades, the UN Security Council has addressed the importance of protecting civilians in situations of armed conflict on many occasions. The tool kit of available mechanisms has been expanded. This development signals that any such situation could potentially be brought within the remit and powers of the Security Council.

In 1998 the legal basis for establishing the permanent International Criminal Court (ICC) was adopted. This global court – with powers to end impunity for perpetrators of gross violations of international humanitarian law and other grave crimes of concern to the international community – will have 114 States Parties by 1 January 2011.

My point is this: These developments, taken together, illustrate that potential gaps in the system for protecting civilians may be plugged. And that international engagement to ensure accountability, also with respect to parties to armed conflict which are not States Parties to treaty-based humanitarian law, is increasingly recognised. The ICC can also reach non-state parties.

All these developments, therefore, speak in favour of enhancing the protection of civilians. They underline the fact that any situation of civilian suffering in armed conflict is a common concern to the international community.

Secondly: While we want to extend a system of legal protection for civilians as far as possible – and to all types of situations involving the use of armed force – caution is needed to avoid blurring the line between applicable standards protecting life and security.

What I am saying is this: In today’s world there is not always a clear distinction between peace and armed conflict. It is therefore not always clear when the emergency law of armed conflict – balancing military interests and humanitarian concerns – is to be applied. Why is this? Because we are now seeing new patterns of conflict – not necessarily between states, but within.

It is the responsibility of every state or authority in power to do its utmost to ensure the right to life and other fundamental human rights for every person under its jurisdiction.

The function of international humanitarian law is to determine the rights and obligations pertaining to acts of hostility where the respective spheres of control between the parties involved are contested.

The law of armed conflict offers a minimum of protection to civilians in times of emergency, while at the same time requiring that parties to conflict distinguish between members of the enemy’s armed opposition and civilians, although this may be hard at times.

If we are to ensure effective protection for civilians, two questions arise: Who falls within the category of enemy forces? And who enjoys protection as a civilian in armed conflict? This needs to be assessed in situations of armed conflict, and in accordance with the principles of international humanitarian law. The purpose of this seminar is for all of us to become a bit wiser on these issues.

Thirdly: Equally important is the principle that the law of armed conflict applies to all parties to a conflict irrespective of the causes of that conflict.

We expect every civilian to be able to enjoy protection during armed conflict, regardless of the political motivation that lies behind a decision to resort to armed force.

A similar consideration is linked to the complexity of modern warfare. As it has been observed (and I quote): “Modern war has raised, and, in some respects, left unresolved the problem of reconciling the fundamental distinction between combatants and non-combatants with the advent of new weapons and with the increase in the numbers of both combatants and non-combatants engaged in work of vital importance for the war effort” (end quote).

This is an accurate description of the complex problems associated with wars. However, it is not a new phenomenon. The words I quoted were formulated by Hersch Lauterpacht in 1944. Ever since, the issue of status and functions associated with direct participation in hostilities has attracted a great deal of attention.

Attacks on humanitarian workers and the denial of humanitarian assistance have grave consequences for civilians caught up in armed conflicts.

We must remain focused on the humanitarian space needed to protect civilians. And we must safeguard the values of humanitarian assistance, regardless of the underlying cause of any given armed conflict.

My fourth and final point is about the dissemination of international humanitarian law.

How can we engage with all parties to armed conflict, to make sure that they implement its standards of protection, and in a moral sense become an army, and not “an undisciplined multitude” (to use the words of Sun Tzu)?

The role of the UN and other international organisations is paramount. In particular in addressing the situation of women and children, based on experience gained during the ten years that have passed since the adoption of Security Council resolution 1325.

By engaging with all parties to armed conflict, the international community will be able to widen the focus from the question of why they fight to an assessment of how they fight. In this respect it is worrying that some governments close off areas in which armed conflict occur, such as Gaza or the later stages of the conflict in Sri Lanka.

This is precisely the objective of this workshop on reclaiming the protection of civilians in armed conflict.

So, I leave the floor to you and wish you all a fruitful meeting and I look forward to hearing your reflections and observations. I am truly grateful for the commitment shown by the Government of Indonesia and for your warm hospitality in organising this event here in Jakarta.

Thank you.