Thank you for your kind invitation and to your delegation for preparing this Colloquium so well. I spoke in this Colloquium many years ago, when I served in the UN war crimes tribunals at The Hague, and I am particularly pleased to have been invited and meet with you again.

I am honoured to serve on this panel and as a member of the ICRC Advisory Board, to be involved in this global initiative to galvanize political support of States, to renew respect for international humanitarian law at a time when horrendous violations have continued for long periods of time and are continuing in Gaza, Ukraine, South Sudan, Darfur, Myanmar, Central African Republic and many others. We must focus again on efforts to revitalize and ensure enforcement of international humanitarian law in the field. As we lament the decline of respect for the law, the president of the ICRC, Mirjana Spoljarik, supported by a growing number of governments, came up with a fresh and exciting idea and project turn to the political leadership of states with a request and with a plea to galvanize the political support for humanitarian law. And we owe her deep gratitude for initiating this project and for fighting for it so indefatigable. The ICRC interim report, issued in October, is an encouraging statement of the progress already made and highlights the existing challenges.

The tremendous number, something like 130 armed conflicts raging throughout the world creates a stress for the law and a stress for the ICRC, when many of these are characterized by violations. We are sliding to ever greater disrespect of the law. This tendency must be stopped, it must be reversed, and the respect for IHL must be reinvigorated. This is, of course, the principal goal of our project of galvanization. As the decisions to violate the law are always domestic, our work must be directed not only to international fora, but also to domestic policies.

In this context, I would like to start by saying something about terminology. The terminology we use is, of course, not without importance. I note that there has been some use of the term permissive interpretation of the international humanitarian law. If I may, I would urge avoiding using this term. There is no such thing in the law of treaties and in international law as permissive interpretation or prohibited interpretation. There is simply the obligation in the Vienna Convention on the Law of Treaties of 1969 to interpret a treaty in good faith in light of its object and purpose, as well as the obligation not to defeat the object and purpose of the treaty, in our case, the Geneva Conventions, the Geneva Protocols, the Hague Conventions, and so on. It means that the Geneva Conventions of 1949 and the relevant humanitarian law instruments must be interpreted in good faith, maximizing protections, and certainly not using terms which could facilitate violations such as permissive interpretation.

International humanitarian law, I need not remind you, is a people-oriented and people-protecting system. One may ask, why turn to leadership then? We know that the crime of aggression is a leadership crime, for which only the highest echelons of political and military leaders bear criminal responsibility. But it is not the only leadership crime. Crimes of genocide, crimes against humanity and war crimes on a large scale can only occur when they are conceived, promoted, tolerated by the political leadership of states. So, it is our task to turn to the leadership to renew its commitment to international humanitarian law.

The seven streams, or clusters of the project are ambitious and cover the main areas of international humanitarian law. I would like to make now a few comments about our project.

One: the project is universal, non-contextual and non-political. As the ICRC itself, we must be neutral and non-political. Concentrating, focusing, even speaking of one or principally one conflict only would jeopardize our neutrality and politicize our project. While encouraging some governments, it would antagonize others.

Two: renewed respect for the law. Minimizing suffering and destruction and enhancing the application and enforcement of the law. Respect for and enforcement of humanitarian law must be an important part of the political agenda of governments and states.

Three: we must encourage both enforcement and accountability, not only on the international plane, but on the domestic plane as well. As someone who has spent about two decades judging and leading UN war crimes tribunals, I understand that we will never have enough resources nor enough jurisdiction to prosecute all crimes internationally, and that domestic prosecutions are absolutely essential. This involves, of course, internalizing international criminal norms, drawing upon international conventions, statutes of International Criminal Tribunal, and on their jurisprudence.

Four: we must aim at a broad and as close as possible to universal international support for the initiative that we have undertaken under the leadership of the ICRC. 

Five: making IHL a priority for state leadership should not be just formalistic but result in practical recommendations. One current example can be found in the Gaza conflict, where I found that the inter-related conduct of the warring parties is particularly harmful and violating principles of humanity in the use of civilians as human shields, with Hamas routinely embedded in civilian Infrastructure such as hospitals, even though such objects are entitled under the conventions for special protection. Conversely, Israel used disproportionate means in attacking such objects hospitals, schools, civilian housing, causing excessive collateral damage, and turning the objects attacked into rubble. In consideration of clarification of the law, we must be general and not contextual. It must be clear that when the number of combatants embedded in civilian objects is minor in numbers and in seniority, the attacking party does not get a carte blanche for unrestrained attacks with major and unproportional collateral damage to civilians. The tendency to accept even minimal numbers of combatants as justifying massive destruction of civilian apartments, hospitals, and schools cannot be tolerated. We must also resist unjustified expansion in the notion of direct participation in hostilities.

Six: one of our streams is international humanitarian law and peace. This is not a platitude. Violations leave deep wounds and scar international relations. Respect for humanitarian law encourages trust and smoothens peace-making. In such cases, reconciliation is facilitated, ceasefires easier to reach, prisoners and detainees better treated, contacts between the warring parties easier, even when mediation is not resorted to, as is protecting civilian infrastructure. Good practices of states involve respect for the law and should, of course, be emulated to maximize compliance.

I would like to say a few words about prevention of violations. It is the responsibility of the political and military leadership not to encourage, allow or tolerate violations. To accomplish that, it is necessary to make commander responsibility and military justice systems more effective. We must encourage military justice, particularly much more as an effective component of accountability. Political and military leadership should make public its commitment to international humanitarian law and warn that violations of humanitarian law and commission of war crimes, in the broad sense, will be severely punished, even in the case of most senior officers and politicians. Respect for the law must become part of the public conscience and ethical and professional culture.

Let me say a few words about national IHL committees. National IHL committees have an important role in advising governments and the armed forces, and in enhancing a culture of respect for humanitarian law. Yet their potential is still underutilized. Of course, some countries have not created yet such committees, and one of the goals of our project is to encourage their establishment. While typically international humanitarian law committees include the representatives of the relevant ministries, the Academy, the National Red cross and Red Crescent Societies, the members of the committees are not always of sufficient seniority for influencing political decisions of political actors. It is essential that IHL committees have a role in encouraging governmental decisions to comply with the law, in advising the military and in monitoring compliance. This would require that the membership of committees should be elevated to more senior officials, and presidents of committees could be of ministerial, or at least of ambassadorial rank. They should be provided with permanent professional secretariats. Governments should establish policies requiring consultation with national IHL committees on all matters pertaining to compliance with the law and prevention of violations. The presidents of committees should be invited to meetings where matters of compliance are being discussed, and should be encouraged to express opposition to policies, standing to order and courage or be otherwise complicit with violations. Conversely, they should be allowed to express opposition public objections to major violations. It is necessary that committees should have mandates broad enough to ensure that they have a say about compliance, the required reforms of military training and access to political parties and to Parliament. The possibility of a universal charter for national committees should be considered, and cooperation and the learning process strengthened through regional and even universal meetings.

Finally, I would like to say a few words about infrastructure. Attacks on infrastructures are the Achilles foot of international humanitarian law, of compliance with the law. They endanger the very survival of the population with an impact on health, food, clean water, and education. In recent conflicts, attacks against infrastructure have become common, increasingly intentional, increasingly deliberate, ignoring the often-civilian character and even protected character of the infrastructure concerned. National Humanitarian Law committees have a particularly important role in ensuring that attacks on infrastructure, particularly in urban warfare, use weapons which do not cause excessive harms to objects and to people, and comply strictly with the rules on collateral damage.

The legality of attacks on infrastructure is often complicated by dual-use objects. For instance, electric grids might be used for civilian and military uses at the same time or consecutively. Of course, the definition of military objectives in article 52, paragraph two of Additional Protocol I to the Geneva Conventions is highly important here, and so is the principle of proportionality. Thus, if a particular electric grid is used primarily for civilian purposes, and only to a minor extent for military users, its civilian character must be respected. The reality is that certain attacks on electric grid do not cause much military effect, or trigger concrete and direct military advantage, while causing huge and clearly disproportionate harm to civilian and civilian objects. Foreseeable military advantage of an attack on infrastructure must be weighed against the foreseeable civilian casualties in such attacks. Power stations that serve civilians exclusively constitute civilian objects and not military objectives. Attacks on them constitute war crimes. Any discussion must start from the question whether an attack targeted a military objective or a civilian object. In certain circumstances, depending on the use at the time, civilian infrastructure may become a military objective. It is therefore important that, in undertaking attacks on infrastructure, competent experts be always consulted.

Objects that serve both the armed forces and the civilian population, such as power stations, are referred to as dual-use objects. From the perspective of the law of war or the law of armed conflicts, such objects are, however, either civilian, which may not be attacked, or military, which may be attacked subject to the principle of proportionality and careful assessment of collateral damage. In terms of law of armed conflict, there is no third or intermediate category called dual-use objects. Military objects are defined, of course, in article 52, paragraph two of Additional Protocol I. Their Definition requires that the object makes an effective contribution to military action, and that the attacking offers a definite military advantage. These requirements are cumulative, and both must be satisfied. There is just a two-part test for the legality of attacks. One, that the object makes a contribution to military action; and two, that the attacking, capturing or neutralizing the object in these circumstances offers a definite military advantage. The ICRC Commentary on Additional Protocol I on page 635 states that “whenever these two elements are simultaneously present, there is a military objective in the sense of the protocol.”

Electric facilities are considered economic objects and qualify as military objectives only when supporting military operations or in sustaining war efforts, communications and transport, and which are of sufficient importance. Power stations that are separated from a general power grid and are limited to supplying power for civilian purposes and especially local purposes, including humanitarian, such as medical facilities, could have no effect on states ability to wage war and are not military objectives. When a power facility supplies electricity only or primarily to civilians, it should not be treated as a military objective. This provision derives largely from article 52, paragraph one of protocol I. This prohibition is absolute, and military necessity cannot be invoked as justification. The degree of use by the military as compared to civilian uses can be measured, for example, by percentages. It is, of course, a relevant question as installations containing dangerous forces, like nuclear electrical generating stations, may not be made objects of attack, even where they constitute military objectives, if such attacks may cause the release of dangerous forces, such as radiation, and consequent severe losses for the civilian population. Merely providing electricity to an integrated power grid does not suffice to remove protection from nuclear power stations.

Some massive attacks on civilian objects might even be considered terror attacks. That is, attacks whose primary purpose is to spread terror, under article 51, paragraph two of Additional Protocol I. This provision was regarded as customary law and successfully charged in the ICTY with regard to the bombardment of Sarajevo in the case of Galić, and I had the honour to sit on that case. I note, however, that terrorization is not a crime under article eight, paragraph two of the statute of the ICC.

Finally, insofar as water installations are attacked, consideration should be given to article 54 of Additional Protocol I regarding objects indispensable to the survival of the civilian population. Article 54 speaks specifically of prohibition of attacks on drinking water installations, whether in order to starve civilians, to cause them to move away, or for any other motive. I noted that article 8(2)(b) of the ICC statute is narrower than article 54 of Additional Protocol I, in criminalizing only the intentional causing of starvation.

You may ask, how do we envisage the final product of the galvanization project? Of course, the result will depend on good faith efforts of the participating states, but we would hope that IHL would become a major priority and major component of the political agenda of government, in which compliance with humanitarian law is given priority in the decision-making process, in which governments are willing to invest major efforts to make sure that the gap between practice of states and the law is eliminated, or at least greatly reduced, and in which not only states but non-state groups make compliance their lodestar.

Thank you.