Keynote speech by Nils Melzer, Director of International Law, Policy and Humanitarian Diplomacy on the occasion of the launch of the International Review of the Red Cross’ double-edition entitled “How international humanitarian law develops” on 17 November 2022.
Ladies and Gentlemen, dear colleagues and friends,
On the launch of this new edition of the International Review, entitled “How International Humanitarian Law Develops”, we stand before Picasso’s “Guernica”, a powerful depiction of the horrors and suffering inflicted on the civilian population by the bombing of the Spanish town of Guernica.
It was the year 1937 – a time when the Geneva Conventions still did not protect civilians and still did not apply to non-international armed conflicts, such as the Spanish Civil War, which was the context in which the bombing of Guernica took place.
It was only 12 years later, after World War II had left countless cities in rubble, and had claimed more than 50 million lives, that the Geneva Conventions first extended their protection to the civilian population and, with their common Article 3, also included a first provision governing non-international armed conflicts.
The bitter truth is that, already three years before Guernica, in 1934, the fifteenth International Conference of the Red Cross had adopted the Tokyo Draft Convention on the “Protection of Civilians of Enemy Nationality”, which had been submitted by the ICRC in response to the immense suffering inflicted on civilians during World War I, twenty years earlier. The Tokyo Draft was to be discussed at a Diplomatic Conference convened by the Swiss government in early 1940. But the outbreak of World War II prevented this meeting from taking place. The ICRC still urged the belligerents to at least put the Tokyo Draft into effect in practice. Tragically, this proposal was rejected, leading to some of the most horrific atrocities ever committed in the history of mankind. It was not until 1949 that the Tokyo Draft was reconsidered and, ultimately, led to the adoption of the Fourth Geneva Convention on the “Protection of Civilian Persons in Time of War”.
Ladies and Gentlemen,
Unfortunately, the sobering observation I just made with regard to Guernica is not an isolated case. There seems to be a similar historical pattern, from the battle of Solferino in 1859, to Guernica in 1937, to the Additional Protocols of 1977, all the way to more recent treaties outlawing land mines and cluster munitions. Indeed, the evolution and extension of International Humanitarian Law to new contexts, new actors, and new means and methods of warfare, seems to have come only at the price of immeasurable human suffering, only once the damage had already been done, and always one war behind reality – one war too late.
Today, even the threat of a nuclear war, and the total destruction of humanity can no longer be excluded, and our efforts towards achieving the worldwide abolition of nuclear weapons suddenly seems to have become a race against time.
At the same time, also throughout history, we see that, even without binding treaties, wars were never considered to be without limits. And theories of “total war” never succeeded to gain more than very narrow and short-lived approval. Across cultures, religions, and history, we see that the regulation of warfare has always been inspired by variations of the same core principles, most importantly by the restraints imposed by the principles of military necessity and of humanity. This illustrates that the law governing warfare, what we call “international humanitarian law” today, is indeed a common heritage of all mankind, one that we have the duty to preserve and pass on to coming generations.
This is why, today, we find ourselves asking: “How does international humanitarian law develop?” Are we condemned to learn the same lesson over and over again the hard way, desperately trying to keep up with new realities, and still always arriving at the scene with new rules one war too late? Or can we try to better understand the facts, actors and processes influencing the development of the law? Can we start to use these findings to anticipate the potential humanitarian impacts of such developments and, at some point, succeed to arrive ahead of the curve, and to adapt applicable normative frameworks without first having to shed the blood and tears of millions?
The question asked by this edition of the Review is particularly timely in the geopolitical environment we are facing today. The “golden age” of multilateral treaty ratification which followed the World Wars seems to have passed away along with the generations that actually lived through, survived and learned the bitter lessons of these traumatizing events. Indeed, the past few decades have been marked by increasing difficulties to get the consensus needed for the adoption of new treaty law; or even for the establishment of reporting mechanisms that would allow to better monitor the actual implementation of international humanitarian law.
How, then, are we to keep pace with the development and military deployment of new technologies? How are we to respond to the humanitarian, legal and ethical challenges posed by cyber-technology, artificial intelligence, and increasingly autonomous weapons systems? How are we to mitigate the existential risks posed by nuclear weapons, the proliferation of all kinds of conventional weapons, and the multiplication of arms carriers and other stakeholders in armed conflicts and other situations of violence?
Every such challenge demands a response – either a belated response to enormous damage already done, or an anticipatory response aiming to prevent humanitarian harm from materializing in the first place. As lawyers and as humanitarians, I believe we must exercise foresight and avoid another Solferino, another Guernica, another Hiroshima. I also believe that responding to the question of “How IHL develops” is an important first step in the right direction. For only understanding how IHL has developed in the past, and how it currently develops in practice, will enable us to anticipate the humanitarian challenges of tomorrow, and to find the appropriate normative responses to these challenges already today. And this ability, namely, to respond today to the humanitarian challenges of tomorrow – this “Response-Ability” – is now in our hands.
Ladies and Gentlemen,
Henry Dunant, the founder of the ICRC and initiator of the Geneva Conventions, once said: “Why could not advantage be taken of a time of relative calm to investigate and try to solve a question of such immense and worldwide importance?”
For much of the World, a long “time of relative calm” has recently come to an end, and we now bear the historical responsibility to ask the right questions and find the right answers, lest the ghosts of Guernica keep haunting us for generations to come.