Published: 04 February 2021 Author: Stefan Talmon
One of Germany’s priorities for its two-year stint as a non-permanent member of the UN Security Council in 2019-2020 was the strengthening of the humanitarian system. Its focus was to be “on improving the application of international humanitarian law, protecting humanitarian aid workers, ensuring humanitarian access and improving the protection of civilian populations in armed conflicts.” It was thus no coincidence that Germany devoted the first day of its Council presidency on 1 April 2019 to the respect for international humanitarian law and humanitarian principles. In the morning of that day, it convened an Arria-formula meeting on the protection of humanitarian and medical personnel in armed conflict which was co-chaired by Germany’s Federal Foreign Minister and his French counterpart. This meeting collected testimonies and proposals for concrete actions from UN agencies and NGOs. This was followed in the afternoon by an open Council meeting which heard a briefing on international humanitarian law and safeguarding the humanitarian space: that is, the ability of those who provide assistance to victims of armed conflicts to carry out their mission safely and effectively. At the meeting, Federal Foreign Minister Heiko Maas identified three points with regard to humanitarian space:
“First of all, upholding international humanitarian law and humanitarian principles is vital. Such norms are not an end in themselves. They protect the lives of aid workers and the people they help. […] Humanitarian space can be established only where rules are in place. Only those familiar with international humanitarian norms can consciously apply them.
Secondly, therefore, we must help humanitarian actors impart the necessary know-how about international humanitarian law. That is all the more important at a time when an increasing number of non-State parties are involved in conflicts. Humanitarian organizations must therefore be able to continue working with such groups. […].
Thirdly, the law itself must not become the target of attacks — for instance, through national laws that supposedly take precedence over humanitarian law. We see that ever-more frequently, especially in the case of counter-terrorism laws. It is good that we at the United Nations are now discussing the impact of such laws as well as the consequences of sanctions on humanitarian work. […].
Germany and France are determined to advance an exchange on this issue with all Council members. Our aim is to compile concrete recommendations in the coming months in a call to action intended to provide answers to pressing questions. Where and how should we ensure the protection of aid workers and those receiving assistance? Where do we need training and instruction in international humanitarian law? How can we better support compliance with international humanitarian law in conflict regions?”
After the Council meeting Federal Foreign Minister Maas and his French counterpart Jean-Yves Le Drian launched an initiative aimed at mobilizing UN Member States to effectively implement and strengthen international humanitarian law, particularly as regards the protection of humanitarian workers and medical personnel – to be known as the “Humanitarian Call for Action”.
Over the next few months, Germany and France entered into an exchange with other UN Member States in order to identify concrete measures and best practices employed by States in order to better implement international humanitarian law. This process led to the publication on 8 July 2019 of a document entitled “Call for Action to strengthen respect for international humanitarian law and principled humanitarian action” which read as follows:
“Gravely concerned by the violations of international humanitarian law (IHL), including the universally ratified Geneva Conventions of 1949, and the adverse consequences of contemporary armed conflicts on civilians and other protected persons as well as on humanitarian action, we reiterate with the present Call for Action our unreserved commitment to honour our obligation to respect and ensure respect for international humanitarian law and to promote universal adherence to IHL instruments, including the Additional Protocols to the Geneva Conventions; and to support and facilitate humanitarian action based on the principles of humanity, impartiality, neutrality and independence, thereby contributing to our joint endeavour to safeguard the space for principled humanitarian action, for the benefit of all those in need of assistance and protection.
We further reaffirm the urgent need to minimise harm and suffering caused by armed conflict, and to protect civilians and all those who do not or who no longer take part in hostilities, including the wounded and sick, detainees, as well as humanitarian and medical personnel, with specific attention to women, children, persons forcibly displaced, persons with disabilities, and other particularly vulnerable groups.
We will continue to make the prevention of and response to the humanitarian consequences of armed conflict, the full respect of IHL, the preservation of the humanitarian space for humanitarian organisations to act in line with humanitarian principles, and accountability for violations of international humanitarian law, objectives of our domestic and foreign policies, in order notably to ensure access to people in need. We also agree to spread the strategic narrative that it is in everyone’s interest for States and in particular parties to armed conflicts to respect and ensure respect for international norms for the protection of civilians, including international humanitarian law, international human rights law, international refugee law and relevant Security Council resolutions, and to allow and facilitate principled humanitarian action.
We pledge to take concrete and substantial steps in order to implement the following practical measures towards these objectives, without prejudice to our existing international obligations:
- Reinforce national frameworks to ensure domestic implementation of international humanitarian law and facilitate principled humanitarian action
Ratify or accede to, and promote the universalisation of international humanitarian law, including the Additional Protocols to the 1949 Geneva Conventions.
Take measures to implement those Security Council resolutions relating to IHL, such as Resolution 2175 (2014) and 2286 (2016).
Adopt or reinforce national protection frameworks to ensure domestic implementation of IHL obligations, including legislation, rules of engagement, military doctrine and policies, and ensuring the need to respect, protect and facilitate principled humanitarian action; review these frameworks regularly to guarantee protection matching the highest standards observed in international practice, and ensure implementation through education and training to the military, the creation and activation of national IHL Committees, and the allocation of ministerial responsibilities as well as appropriate resources.
Endorse, implement, and seek wider endorsement of, political commitments aiming at enhancing the protection of civilians, such as the Paris Principles on Children Associated with Armed Forces or Armed Groups, the Safe Schools Declaration, the Vancouver Principles and the 2017 Political Declaration on the Protection of Medical Care in Armed Conflict.
Consider to report on a regular basis on measures taken at the domestic level to ensure the implementation of international humanitarian law obligations engaging, if applicable, national IHL committees and using the ICRC’s national implementation of IHL database.
Support the ability of humanitarian organisations to act in line with the humanitarian principles of humanity, impartiality, neutrality and independence. Refrain from any acts, statements or practices which may undermine the principled, needs-based and non-political nature of humanitarian action.
Reinforce measures to protect the wounded and sick, medical personnel, infrastructures and assets in armed conflict.
While designing and implementing counter-terrorism and sanctions regimes, regulations, policies and practices, prevent and, in any event, minimise the potential negative effect on humanitarian action to make sure that impartial medical and humanitarian action is preserved (for example by the use of humanitarian exemptions) and that humanitarian and medical personnel are not prosecuted for activities conducted in accordance with IHL and the humanitarian principles.
Reinforce military training and engage in exchange of expertise and good practice on civilian harm mitigation in the conduct of hostilities, especially in urban environments.
Train military and security forces on how to uphold international humanitarian law and to respect principled humanitarian action, notably with the aim to support the acceptance of and respect for humanitarian and medical personnel.
Adopt national legislation encompassing war crimes, crimes against humanity and genocide, and assert jurisdiction over them.
- Improve knowledge on international humanitarian law and principled humanitarian action
Provide training to partner forces on respect for international humanitarian law, humanitarian principles and the functioning of the international humanitarian system.
Support the provision of training to non-state armed groups on how to respect international humanitarian law and facilitate principled humanitarian action, notably with the aim to protect the civilian population and persons hors de combat, as well as support the acceptance of and respect for humanitarian and medical personnel.
Support training to military, security forces and diplomatic personnel on how to facilitate and respect humanitarian negotiations when engaging in humanitarian diplomacy and political negotiation.
Seek and support dialogue between and with relevant stakeholders, including financial service providers, regulatory bodies and humanitarian actors to minimise unintended impacts on principled humanitarian action caused by de-risking and over-compliance.
- Influence parties to an armed conflict to respect international humanitarian law and facilitate principled humanitarian action
Influence parties to an armed conflict to ensure they take all feasible measures to protect civilians, as well as persons hors de combat, and provide or facilitate access to items essential to their survival, including allowing and facilitating safe, rapid and unimpeded access to people in need by neutral and independent humanitarian organisations, through inter alia the adoption of clear and simplified procedures and the establishment of civil-military coordination structures in close coordination with humanitarian stakeholders, and the application of humanitarian notification systems.
While considering the transfer of conventional arms, ammunitions, parts and components, assess the potential risks that they could be used to commit or facilitate serious violations of international humanitarian law, consider mitigating measures, and refrain from any such transfer if the assessment concludes to a clear risk.
Support the adoption and implementation of human rights and IHL compliance frameworks such as the compliance framework of the G5 Sahel Joint Force.
In order to deter and stop violations of IHL, support and advocate for the adoption of sanctions by the Security Council against individuals or entities obstructing the delivery of humanitarian assistance, as well as sanctions against individuals or entities attacking civilians, as well as humanitarian and medical personnel and their infrastructures.
Support humanitarian organisations in building up capacities for humanitarian negotiations to ensure the protection of, and the provision of assistance to, civilians and persons hors de combat.
- Support efforts to collect and analyse information, improve prevention and ensure accountability
Support bilateral and/or multilateral efforts at systematic collection, analysis and documentation of facts on instances where harm to civilians and to humanitarian or medical personnel occurred in direct relation with an armed conflict, to build robust, scientific evidence to prevent repetition and adopt mitigating measures.
Support relevant existing multilateral mechanisms, such as the Monitoring and Reporting Mechanism on Children and Armed Conflict, the Monitoring and Reporting Arrangements on Sexual Violence in Armed Conflict, and the Surveillance System of attacks of the World Health Organisation.
Support bilateral and/or multilateral capacity building of national law enforcement and judicial authorities to conduct impartial and independent criminal investigations into alleged serious violations of international humanitarian law and, as appropriate, prosecute suspects and enforce legal sanctions, in line with fundamental judicial guarantees.
Cooperate fully with existing international investigation, accountability and fact-finding mechanisms.
Ratify the Rome Statute, promote its universalisation and support the International Criminal Court.
- Follow-up on the implementation of the present Call for Action
Reinforce exchanges between States and the civil society on information, experiences, best practices and measures taken for the implementation of international humanitarian law and principled humanitarian action.
Mindful of this objective, participate in meetings open to all interested States and the civil society, to be organised and hosted on a voluntary basis by a signatory.”
Germany and France called upon all States to endorse this document by sending a Note Verbale to the German and French missions to the United Nations in New York. By 20 September 2019, 26 States, including the two sponsors, had endorsed the Call for Action. Six days later, the French and German Foreign Ministers formally presented the Call for Action during the first meeting of the “Alliance for Multilateralism” at the United Nations in New York. This provided a boost for the Call for Action. By the end of 2019, 43 States had endorsed the Call for Action.
It has been said that “joining this ‘Call for Action’ implies taking practical measures”, but it does not create binding legal obligations. The Call for Action is not a treaty but a declaration of political commitment. The document itself is not signed but endorsed by States sending a Note Verbale to that effect to the French and German missions to the United Nations. Its classic soft law character is also confirmed by the fact the document is based on an earlier “Political declaration on the protection of humanitarian and medical personnel” which had been initiated by France on 31 October 2017 and which had been endorsed by 48 States. In many respects, the Call for Action reaffirms existing obligations under the Geneva Conventions of 1949 and, where applicable, the 1977 Additional Protocols thereto. To the extent that the commitments in the Call for Action go beyond what is required under these treaties, they could metamorphose over time into customary international law obligations, if supported by sufficient State practice and opinio juris. However, with only some 22 per cent of UN Member States endorsing the document, this seems to be a long way off.
Category: Armed conflict and international law
DOI: 10.17176/20220627-173029-0
