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Published online by Cambridge University Press: 07 September 2022
National Societies can assist their authorities in the development of international humanitarian law (IHL). This role has been consolidated in their mandate, especially through their auxiliary role in support of public authorities in the humanitarian field. This article recalls the main legal bases from which this role is derived. Based on the Belgian Red Cross experience, it demonstrates how the National Societies’ support to the promotion and national implementation measures of IHL can constitute an incentive for further elaboration of IHL treaties and policies. It also highlights their humanitarian diplomacy work to assist the International Committee of the Red Cross's approach at the international level. Finally, the article shares some thoughts to increase the Movement's collective impact in IHL development.
The views expressed by the authors in this article are personal and in no way binding upon the Belgian Red Cross.
1 Dunant, Henry, Memory of Solferino, ICRC, Geneva, 1986, p. 126Google Scholar: Dunant considered it would be desirable to “formulate some international principle, sanctioned by a Convention inviolate in character, which, once agreed upon and ratified, might constitute the basis for societies for the relief of the wounded”. The draft of the Convention was prepared by the Geneva Committee and submitted to the diplomatic conference hosted by the Swiss Federal Council, on the initiative of the Geneva Committee, from 8 to 22 August 1864, for the purpose of adopting a convention for the amelioration of the condition of the wounded in war.
2 Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross and Red Crescent, Geneva, 8 November 1986 and amended in 1995 and 2006, Art. 5(2)(g), available at: www.icrc.org/en/doc/assets/files/other/statutes-en-a5.pdf (all internet references were accessed in August 2022).
3 See the “Draft Revised or New Conventions for the Protection of War Victims”, established by the ICRC with the assistance of Government Experts, National Red Cross Societies and other humanitarian associations in May 1948, and submitted to the XVIIth International Red Cross Conference, Stockholm, 20–30 August 1948, pp. 1–3, available at: https://library.icrc.org/library/docs/CI/CI_1948_B3_01_ENG_01.pdf. Assistance of governments and National Societies was already requested by the ICRC in its memorandum dated 15 February 1945 and informing it was undertaking the work of preparing the revision of the Geneva Conventions and the conclusion of new humanitarian agreements. After having received proposals and useful data from numerous governments and National Red Cross Societies, the ICRC started upon its task and continued to consult different stakeholders including National Societies. It submitted its proposals and first drafts to the “Preliminary Conference of National Red Cross Societies for the Study of the Conventions and of Various Problems Relative to the Red Cross”, held on its initiative in Geneva on 26 July–3 August 1946. Several proposals were made by the National Societies relating to questions which are of their particular competency. Other consultations were then conducted with governmental experts, such as during the “Conference of Governments of Experts for the Study of the Conventions for the Protection of War Victims” on 14–26 April 1947 in Geneva. The drafts were thus gradually developed and finally submitted by the ICRC to the “Commission of National Red Cross Societies for the Study of the Conventions” as appointed by the 1946 Conference. This Commission comprised of thirteen National Society members of the League of Red Cross Societies gave its general approval to the drafts and made some additional suggestions before the texts were submitted to the XVIIth International Conference of the Red Cross in 1948.
4 Statutes of the International Red Cross and Red Crescent Movement, above note 2, Art. 3(2)(3).
5 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Art. 26.
6 Statutes of the International Red Cross and Red Crescent Movement, above note 2, Art. 3(1).
7 Ibid., Art. 4(3).
8 Resolution 2, “Specific Nature of the International Red Cross and Red Crescent Movement in Action and Partnerships and the Role of National Societies as Auxiliaries to the Public Authorities in the Humanitarian Field”, adopted at the 30th International Conference of the Red Cross and Red Crescent, Geneva, 23–24 November 2007, paras 1–3, available at: www.icrc.org/en/doc/resources/documents/resolution/30-international-conference-resolution-2-2007.htm.
9 Statutes of the International Red Cross and Red Crescent Movement, above note 2, Art. 3(2)(3).
10 All States are bound by the 1949 Geneva Conventions as they are universally ratified. Around 90% of the States have ratified the 1977 Additional Protocols and thus must abide by them.
11 GC I, above note 5, Arts 47–8; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), Arts 48–9; Geneva Convention (III) Relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), Arts 127–8; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Arts 144–5; Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Arts 80, 83 and 84; Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978), Art. 19.
12 AP I, ibid., Art. 80. The commentary of this article mentions the National Red Cross or Red Crescent Society could be associated with the study and preparation of all necessary measures to be taken by the State Party for the execution of its obligations under the Geneva Conventions and AP I; see Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987, p. 931, para. 3996. Several resolutions of the International Conferences of the Red Cross and Red Crescent confirmed this National Societies’ role, including: Resolution V, see the Movement, “National Measures to Implement International Humanitarian Law”, adopted by the 25th International Conference of the Red Cross and Red Crescent, Geneva, October 1986, International Review of the Red Cross, Vol. 28, No. 263, 1988, p. 127, paras 2–3; Resolution 1, “Bringing IHL Home: A Road Map for Better National Implementation of International Humanitarian Law”, adopted at the 33rd International Conference of the Red Cross and Red Crescent, Geneva, 9–12 December 2019, para. 2, available at: https://rcrcconference.org/app/uploads/2019/12/33IC-R1-Bringing-IHL-home_CLEAN_ADOPTED_FINAL-171219.pdf.
13 For example, in Belgium, this role is explicitly reflected in the Statutes of the Belgian Red Cross, lastly revised on 23 April 2018, Art. 4; approved by the decree of the government of the French Community on 24 March 2018, Belgian Official Gazette, 3 August 2018, p. 61293; by the decree of the Flemish government on 1 June 2018, Belgian Official Gazette, 9 July 2018, p. 54866; and by the decree of the government of the German-speaking Community on 20 June 2018, Belgian Official Gazette, 24 August 2018, p. 66153.
14 For example, Resolution 3; “Reaffirmation and Implementation of International Humanitarian Law”, adopted at the 30th International Conference of the Red Cross and Red Crescent, Geneva, 26–30 November 2007, preamble, para. 15, available at: www.icrc.org/en/doc/assets/files/other/icrc_002_1108.pdf; and for Resolution 1, “Bringing IHL Home: A Road Map for Better National Implementation of International Humanitarian Law”, above note 12, preamble, para. 11.
15 Emphasis added. UN General Assembly, Resolution Adopted by the General Assembly on 20 December 2018, UN Doc. A/RES/73/204, 9 January 2019, preamble, recital 13 and para. 7, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N18/457/48/PDF/N1845748.pdf?OpenElement; UN General Assembly, Resolution Adopted by the General Assembly on 15 December 2020, UN Doc. A/RES/75/138, 22 December 2020, preamble, recital 13 and para. 7, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N20/368/91/PDF/N2036891.pdf?OpenElement.
16 Statutes of the International Red Cross and Red Crescent Movement, above note 2, Art. 5(2)(c) and (g).
17 Ibid., Art. 5(4)(a).
18 Ibid., Art. 6(4)(j); Constitution of the International Federation of the Red Cross and Red Crescent Societies, last amended and adopted by the 22nd Session of the General Assembly, Geneva, 5–7 December 2019, Art. 5(1)(B)(c), available at: www.ifrc.org/sites/default/files/2021-08/01_IFRC-Constitution-2019-EN.pdf.
19 Ibid., Art. 8(1)(B)(e).
20 See the Conclusion of this article.
21 More detailed information on the role of the National Societies at the International Conference can be found in the following excellent article: Meyer, Michael, “The Importance of the International Conference of the Red Cross and Red Crescent to National Societies: Fundamental in Theory and in Practice”, International Review of the Red Cross, Vol. 91, No. 876, 2009CrossRefGoogle Scholar.
22 Statutes of the International Red Cross and Red Crescent Movement, above note 2, Art. 10(2).
23 Resolution 2, “4-Year Action Plan for the Implementation of International Humanitarian Law”, adopted at the 31st International Conference of the Red Cross and Red Crescent, Geneva, 28 November–1 December 2011, available at: https://rcrcconference.org/app//uploads/2019/03/R2_4-Year_Action_Plan_EN.pdf.
24 Resolution 1, “Bringing IHL Home: A Road Map for Better National Implementation of International Humanitarian Law”, above note 12.
25 Statutes of the International Red Cross and Red Crescent Movement, above note 2, Art. 12.
26 Ibid., Art. 14(1).
27 Resolution 10, “Anti-Personnel Landmines”, adopted at the Council of Delegates, Geneva, 1–2 December 1995, para. 3.
28 Resolution 8, “Children Affected by Armed Conflict”, adopted at the Council of Delegates, Geneva, 29–30 October 1999, para. 4, available at: www.icrc.org/en/doc/resources/documents/resolution/council-delegates-resolution-8-1999.htm (emphasis in original). Resolution 8, “Peace, International Humanitarian Law and Human Rights”, adopted at the Council of Delegates, Seville, 25–27 November 1997, Section 1, para. 6, available at: www.icrc.org/en/doc/resources/documents/resolution/council-delegates-resolution-8-1997.htm had already asked National Societies of countries that had adopted the 18-year age limit for recruitment and participation “to encourage their respective governments to participate in and support the process of drafting an optional protocol to the Convention on the Rights of the Child on involvement of children in armed conflicts”.
29 Resolution 1, “Working Towards the Elimination of Nuclear Weapons”, adopted at the Council of Delegates, Geneva, 26 November 2011, para. 3. This appeal was indirectly recalled in Resolution 1, “Working Towards the Elimination of Nuclear Weapons: Four-Year Action Plan”, adopted at the Council of Delegates, Sydney, Australia, 17–18 November 2013, para. 2b.
30 This prohibition was first incorporated in the Law of 18 May 2006, supplementing the Law of 3 January 1933 relating to the manufacture, trade, and bearing of weapons and to the trade of munitions, concerning the prohibition of cluster munitions, Belgian Official Gazette, 26 June 2006, p. 32229. This prohibition was then set out in the Law of 8 June 2006, regulating the economic and individual activities with weapons, Belgian Official Gazette, p. 29840, Art. 2, 4°. This law was amended by a Law of 20 March 2007 prohibiting the financing of the manufacture, the use or the possession of anti-personnel landmines and cluster munitions, Belgian Official Gazette, 26 April 2007, p. 22122 (see Art. 8(2) of the Law of 2006).
31 Belgian Senate, Draft Law supplementing the Law of 3 January 1933 relating to the manufacture, trade, and bearing of weapons and to the trade of munitions, regarding cluster bombs – Report made on behalf of the Commission of External Relations and Defence by Mr Lionel Vandenberghe, Documents Parlementaires, Session 2004–2005, No. 3-1152/3, 5 July 2005, pp. 3–4, section III, available at: www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=50334315.
32 ICRC, “The Need for Urgent International Action on Cluster Munitions”, Statement by Philip Spoerri, Director of International Law and Cooperation within the Movement, ICRC, delivered at an ICRC Press Conference on 6 November 2006, available at: www.icrc.org/en/doc/resources/documents/statement/cluster-munition-statement-061106.htm.
33 Under the terms of Article 2 of the Royal Decree of 6 December 2000, relating to the Interministerial Commission for Humanitarian Law, Belgian Official Gazette, 12 December 2000, p. 41449, as reviewed by the Royal Decree of 22 June 2016 (Belgian Official Gazette, 19 August 2016, p. 52544):
The mission of the Interministerial Commission for Humanitarian Law … is to:
1. identify and examine the national enforcement measures necessary for the implementation of the rules of international humanitarian law, inform the federal ministers concerned of them and submit proposals to them in this regard;
2. monitor and coordinate the national enforcement measures addressed in point 1;
3. as a permanent advisory body, assist the federal government, on its own initiative or on the request of the latter, with studies, reports, opinions and proposals concerning the application and development of international humanitarian law;
4. ensure the work of the Interdepartmental Commission for Humanitarian Law is carried on and its archives preserved;
5. act as a national advisory committee for the protection of cultural property, under the terms of Resolution II of the Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, adopted at The Hague on 14 May 1954.
For more detailed information on the Belgian ICHL, see Casier, Frédéric and Janssens, Alix, “Belgium's Interministerial Commission for Humanitarian Law: Playing A Key Role in the Implementation and Promotion of IHL”, International Review of the Red Cross, Vol. 96, No. 895/896, 2015Google Scholar.
34 Law of 16 June 1993 on prosecuting grave breaches of international humanitarian law, Belgian Official Gazette, 5 August 1993, p. 17751.
35 Draft amendments abrogating the law of 16 June 1993 on prosecuting grave breaches of international humanitarian law and transferring its provisions to the Criminal Code and the Code of Criminal Procedure. These texts led to the law of 5 August 2003 on grave breaches of international humanitarian law, Belgian Official Gazette, 7 August 2003, p. 40506.
36 Resolution on amendments to Article 8 of the Rome Statute of the International Criminal Court, ICC-ASP/16/Res.4, adopted by consensus by the Sixteenth Session of the Assembly of States Parties, New York, 4–14 December 2017. The resolution provides the insertion of new Articles 8-2-b)xxvii) and 8-2-e)xvi), new Articles 8-2-b)xxviii) and 8-2-e)xvii) and new Articles 8-2-b)xxix) and 8-2-e)xviii) in the Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002), available at: https://asp.icc-cpi.int/sites/asp/files/asp_docs/Resolutions/ASP16/ICC-ASP-16-Res4-ENG.pdf.
37 Royal Decree of 6 December 2000, above note 33, p. 41449, Art. 4(2).
38 This role has been explicitly acknowledged by Resolution 1; “Bringing IHL Home: A Road Map for Better National Implementation of International Humanitarian Law”, above note 12, para. 5.
39 ICRC, National Committees and Similar Entities on International Humanitarian Law: Guidelines for Success – Towards Respecting and Implementing International Humanitarian Law, Geneva, 2018, pp. 33–4, available at: www.icrc.org/en/document/national-committees-and-similar-entities-international-humanitarian-law-guidelines-success.
40 Statutes of the International Red Cross and Red Crescent Movement, above note 2, Art. 3(1).
41 See the missions and goals of the Belgian Ministry of Foreign Affairs, in its Administrative Agreement (Contract of Administration) on its functioning in 2016–2018, Part 2, available at: https://diplomatie.belgium.be/en/about-us/mission-and-goals.
42 The National Society's support of the adoption of risk reduction measures is in line with the Movement's “Action Plan on the Non-use, Prohibition and Elimination of Nuclear Weapons 2018–2021” adopted by the Council of Delegates through its Resolution 4 on 11 November 2017 in Antalya, Turkey, available at: https://rcrcconference.org/app//uploads/2017/08/CD-17-R4_clean.pdf; and its “2022–2027 Action Plan on the Non-Use, Prohibition and Elimination of Nuclear Weapons” adopted by the Council of Delegates through its Resolution 7 on 23 June 2022 in Geneva, available at: https://rcrcconference.org/app/uploads/2022/06/CD22-R07-Nuclear-weapons_22-June-2022_EN_FINAL.pdf.
43 Especially the implementation of Resolution 2286 (2016) on “Protection of Civilians in Armed Conflict” adopted by the UN Security Council, UN Doc. S/RES/2286 (2016), 3 May 2016, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N16/125/06/PDF/N1612506.pdf?OpenElement.
44 See the example of Resolution 2462 (2019) on “Threats to International Peace and Security Caused by Terrorist Acts: Preventing and Combating the Financing of Terrorism” adopted by the UN Security Council, UN Doc. S/RES/2462 (2019), 28 March 2019, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N19/090/16/PDF/N1909016.pdf?OpenElement.
45 High Contracting Parties to the Convention on the Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW), Technical Decisions by the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects on the Work Related to the Convention for 2021, UN Doc. No. CCW/2020/1, 3 May 2021, para. 7, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G21/100/85/PDF/G2110085.pdf?OpenElement.
46 ICRC, “Position on Autonomous Weapons Systems”, 12 May 2021, available at: www.icrc.org/en/document/icrc-position-autonomous-weapon-systems.
47 Meeting of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 13–15 November 2019, Agenda Item 15, Final Report, UN Doc. No. CCW/MSP/2019/9, 13 December 2019, para. 31, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/343/64/PDF/G1934364.pdf?OpenElement.
48 For more information on the diplomatic process on a political declaration to address the humanitarian harm arising from the use of EWIPA, see the Irish Department of Foreign Affairs, “Protecting Civilians in Urban Warfare: A Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences Arising from the Use of Explosive Weapons in Populated Areas”, available at: www.dfa.ie/our-role-policies/international-priorities/peace-and-security/ewipa-consultations/.
49 Chamber of Representatives, Belgian Federal Parliament, Resolution pertaining to the protection of civilians against the use of explosive weapons with wide-area effects in populated areas, Documents Parlementaires, Session 2019–2020, No. 55 1222/007, 6 May 2021, available at: www.lachambre.be/FLWB/PDF/55/1222/55K1222007.pdf.
50 Irish Department of Foreign Affairs, “Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences Arising from the Use of Explosive Weapons in Populated Areas”, 25 May 2022, available at: www.dfa.ie/media/dfa/ourrolepolicies/peaceandsecurity/ewipa/EWIPA-Political-Declaration-Final-Rev-25052022.pdf.
51 Royal Decree of 6 December 2000, above note 33, p. 41449, Art. 4(3).
52 Resolutions of the Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, Resolution II, available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=6FA17D44AABA6394C12563CD0051D062; Royal Decree of 6 December 2000, above note 33, p. 41449, Art. 2, 5°.
53 The mandate of this Committee is provided in the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, UNTS 2253 (entered into force 9 March 2004), Art. 27.
54 UN Educational, Scientific and Cultural Organization, “Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict”, Paris, 16 December 2021, especially paras 97–116 and Annex IV, available at: https://en.unesco.org/sites/default/files/1999-secondprotocol_guidelines_2021_eng.pdf. “The present version reflects the amendments endorsed by the 9th Meeting of the Parties to the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (Paris, 2021).”
55 UN Educational, Scientific and Cultural Organization, Committee for the Protection of Cultural Property in the Event of Armed Conflict, “Monitoring and Supervision Mechanism for the Implementation of the 1999 Second Protocol”, Paris, 10–11 December 2020, Decision No. C54/20/15.COM/14, para. 7, available at: https://unesdoc.unesco.org/ark:/48223/pf0000375412.
56 For example: the Movement's “Action Plan on the Non-use, Prohibition and Elimination of Nuclear Weapons 2018–2021”, above note 42; the Movement's “2022–2027 Action Plan on the Non-Use, Prohibition and Elimination of Nuclear Weapons”, above note 42; and “2022–2027 Movement Action Plan to Prevent and Respond to the Humanitarian Impacts of War in Cities”, adopted at the Council of Delegates through Resolution 6 in Geneva on 22–23 June 2022, available at: https://rcrcconference.org/app/uploads/2022/06/CD22-R06-War-in-cities_22-June-2022_FINAL_EN.pdf.
57 Considering the success of such pledges and the wish of the ELSG members to continue coordinated actions at the European level, other similar pledges were adopted afterwards. A pledge entitled “Strengthening Compliance with International Humanitarian Law (IHL) Through its Promotion, Dissemination and Implementation” was jointly adopted by the EU, the EU Member States and their National Societies at the 33rd International Conference of the Red Cross and Red Crescent, Geneva, 9–12 December 2019, available at: https://rcrcconference.org/pledge/strengthening-compliance-with-international-humanitarian-law-ihl-through-its-promotion-dissemination-and-implementation/.
58 For example, the IFRC is directly or indirectly allowed to participate in the Review Conferences on the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, adopted on 18 September 1997 (according to Article 12 (3)) and on the Convention on Cluster Munitions, adopted on 30 May 2008 (according to Article 12 (3)).