Åpningsinnlegg på seminaret Reclaiming the Protection of Civilians under International Humanitarian Law

Dear Alberto, dear Argentinean colleagues, dear all participants.

It is a great pleasure for me to welcome you all to this seminar, which is arranged in a co-operation between Argentina and Norway. The seminar is the second in a series of regional seminars on “Reclaiming the Protection of Civilians under International Humanitarian Law”.

The first seminar in the series took place in Indonesia one year ago, and the next will take place in Africa 2012. Finally, a global conference will be arranged in Europe by the end of 2012. I would like to underline that the intention of this process is not to negotiate new law, but to try to reach a common understanding on how we should understand and apply IHL in modern conflicts, and to agree on concrete, practical measures that will effectively improve the situation for civilians during armed conflict, as well as to strengthen the respect for IHL by parties to conflict. 

Norway has for a long time been working to increase the protection of civilians in armed conflicts. We have done this, as a country with a strong engagement in peace processes, but also as a participant in international military operations. In addition, we are a significant exporter of defence materiel. We acknowledge that wars take place and that the use of military force may be necessary in certain situations. At the same time, there is an urgent need to strengthen the protection of civilians. This was our starting point in the work to prohibit the use of landmines and cluster munitions. It is also our starting point as we now work to increase respect for international humanitarian law. In this context I would like to say how happy I am to be cooperating closely with Argentina; as both countries come from a very similar starting point; a conviction that there is a strong need to strengthen the protection of civilians during armed conflicts and to make it clear that rules apply, even in extreme situations. 

Nearly all the narratives of armed conflicts since the outset of the Second World War tell the same story: huge numbers of civilians getting caught in the midst of hostilities, being killed or maimed for life, their homes and livelihoods destroyed and often rendered useless for years and decades after the conflict has ended. Civilians are affected by armed conflict in a myriad of ways, they may be killed, injured, raped, forcibly displaced, or – indirectly – they may be affected by disease, hunger and malnutrition induced by the conflict.

This is not to say, however, that we do not have rules on the behaviour by parties to armed conflicts. International humanitarian law is a continually growing body of law. From the 1868 St. Petersburg Declaration prohibiting the use in war of exploding bullets, the Hague Conventions of 1899 and 1977, then the Geneva Conventions of 1949 with their additional protocols – over the years, these rules have developed into a comprehensive and solid legal framework, binding for all, on the protection of civilians in armed conflicts.

It is of course generally acknowledged that these rules need to be continually reviewed and at times strengthened in order to keep up with new developments in warfare and new emerging humanitarian concerns. Nevertheless, there is broad agreement that the general IHL rules afford civilians significant protection from the effects of military operations, provided that they are faithfully implemented.

If we look at the big picture, we see there are both good and bad news. Among the good news is that we have seen a significant development of the rules over the years. In many countries, we have seen a significant improvement in the training in the laws of war conducted by the military forces.

There is also an increasing consciousness regarding the protection of civilians during conflict, including on how to prevent direct attacks on civilians, or on hospitals or other objects indispensable to the survival of the civilian population, on the use of starvation of civilians as a method of war and the use of rape as a weapon of war. The development of new technology and more precise kinetic energy weapons may also be good news. If used according to the rules by properly trained personnel, it could contribute significantly to reducing the risk of civilian incidental harm.

The bad news, on the other hand, is that we still see that the vast majority of victims of both ongoing and recent armed conflicts today are civilians. Why is this? Is it the lack of rules that is the problem, or the fact that the rules are not being faithfully observed?

We believe the latter to be the main problem. On the ground today, we see many actors on the ground today who either are not familiar with the laws of war, who do not care about the rules, or who deliberately violate the rules in the conduct of military operations.

However, there are also many actors who do not wish to violate international humanitarian law, but who are struggling to know how they are to apply the law in the complex combat situations we often face in armed conflicts today.

We no longer live in a world in which war was fought by the armies of two countries, who were lined up on a battlefield and fighting to the last man had fallen. The conflicts of today are quite different, often with a myriad of actors – both State and Non-State actors – on the ground, and often with one or more of the parties not respecting international humanitarian law in their conduct of hostilities. For instance, we often see actors deliberately blending in with the civilian population in order to blur the lines of distinction between themselves and civilians not taking part in the fighting. In such situations, it is absolutely necessary that States recognize that even if their adversaries may not follow the rules, this does not relieve the States from their obligation to do so.

Our own soldiers meet this challenge on a daily basis in Afghanistan. For instance, Norwegian soldiers who find themselves being fired at from a house, have to know that they may not automatically fire back. They have to assess the situation. Might there be civilians in the house? How can the soldiers defend themselves without harming civilians not taking part in the hostilities? The soldiers have to make a decision according to the situation at hand.

Among the important questions to be addressed is how a military commander should assess the military gain versus the humanitarian harm in modern conflicts? And which precautions may be taken to avoid civilian deaths and injuries?

One issue in this context is the choice of weapons to be used in different type of conflict zones. Modern conflicts often take place in urban or other densely populated areas. It is important to recognize that weapons that may be perfectly legitimate to use in other areas, such as heavy artillery and other weapons with a wide area effect, may be unacceptable to use in urban areas, i.a. due to the particular difficulties implied in distinguishing between military targets and civilians in such areas.

Another issue is how to apply the principle of proportionality in practice in today’s armed conflicts. For instance; in assessing the proportionality between the military gains expected from an attack versus the foreseen incidental harm, is the right balance being struck between military and the humanitarian concerns? How are we to distinguish between “unfortunate” and “unlawful” incidental humanitarian harm?

With the complexity of these issues in mind, we see that proper training of military personnel becomes all the more important.

It is also necessary to discuss what the development of new technologies will mean for the protection of civilians. For instance, it seems clear that new weapons types such as drones may imply both new possibilities as well as a number of new challenges and concerns.

Another important measure to increase respect for IHL and the level of protection of civilians during and after conflict is to ensure proper documentation on the conduct of hostilities, and to the extent possible share this information with the international community. This is necessary both to facilitate rapid clearance of unexploded ordnance and other debris that may pose a risk to civilians after hostilities have ended, and in order to hold perpetrators accountable for possible violations of IHL.

In this regard, we have seen a significant development in the practice of states over the last few years. For instance, I believe there is a great difference between the NATO military campaign in Kosovo in 1999 and the international military operation in Libya this year, i.a. in the way states put emphasis on documenting every impact, and in working to transmit this information to humanitarian organisations and the international community after the end of hostilities. A difference may also be seen in the extreme caution taken in the latter conflict in the targeting of dual-use facilities, in order to spare the civilian population from harm.

In order to increase accountability for those who violate the rules, it is also necessary to discuss how both national and international accountability mechanisms may be strengthened.

These are only a few of the challenges we need to discuss. I hope this conference will provide a good opportunity for an in-depth discussion on these and other questions.

When I talk about “discussions on the implementation of IHL” in this context, I would like to underline that what is really needed here is far more than the more or less theoretical debates on the interpretation of the rules that we have seen in many conference rooms, far removed from the grim realities on the ground. These discussions must be built on experience from the field, and include contributions from people and organisations with first-hand experience of protection of civilians in conflict settings – military actors, as well as the UN, the ICRC and other humanitarian organisations. Only then will we be able to identify practical measures that will adequately address the challenges at hand.

Against this backdrop, I would like to say how pleased I am to note the broad participation in this conference, including both civilian and military representatives of the governments in the region, the UN, the ICRC and a number of other non-governmental organisations with extensive experience from the field.

I hope this will be a constructive seminar, a contribution to a more just world, and an increased protection of civilians.

I wish you all a good seminar!