The ‘Compliance Track’ on a Track to Nowhere

The 32^nd International Conference of Red Cross and Red Crescent (IC), held from 8^th to 10^th December 2015 and bringing together delegations from States Party to the Geneva Conventions (GCs), National Red Cross and Red Crescent Societies, the ICRC and the IFRC, has already attracted some comments (here and here). A little-explored topic to date has been the adoption of Resolution 2 on “Strengthening compliance with international humanitarian law”. This Resolution was linked to the so-called ‘compliance track’: an initiative managed by the ICRC and Switzerland, aimed at identifying options to improve the implementation of IHL.

A draft resolution circulated in October 2015 recommended that States create a new compliance mechanism, the so-called “Meeting of States on IHL” (MoS), and identified the key elements proposed for that mechanism. This draft resolution was also accompanied by a Concluding Report, providing insights into the consultation process and emphasizing the questions still pending. However, delegations at the International Conference were unable to reach a consensus on this new mechanism. Operative paragraph (OP) 2 of Resolution 2 adopted at the International Conference merely recommends “the continuation of an inclusive, State-driven inter-governmental process based on the principle of consensus…to find agreement on features and functions of a potential forum of States…in order to submit the outcome of this intergovernmental process to the 33^rd International Conference”. The Resolution reiterates a series of guiding principles intended to inform further discussions. This post will describe the key features of the proposed Meeting of States. It will be noted that the proposals which were put to the International Conference, but not adopted, contained only a minimal option for strengthening compliance with IHL, though it would have had the merit of planting a tiny seed in the IHL system, with an eye to its possible ripening into a fruit.

The path towards the 32^nd International Conference

The ‘compliance track’ was developed following the adoption of Resolution 1 at the 31^st IC held in 2011, where the ICRC (later joined by Switzerland) was entrusted with pursuing consultations to enhance the effectiveness of IHL compliance mechanisms. A shared skepticism on the effectiveness of some existing mechanisms (such as Protecting Powers, Enquiry Procedures, Meeting of the High Contracting Parties, or the IHFFC) lay behind this request. In particular, as such mechanisms were designed for international armed conflicts and are dependent on States’ consent for their activation, they have barely functioned as envisaged. States’ discomfort with the increasing proliferation of (sometimes) proactive compliance mechanisms operating outside the realm of IHL, such as human rights bodies, was an additional element in favor of the possible development of new mechanisms for implementing compliance with IHL. For instance, the politicized agenda and inappropriate expertise on IHL issues of other fora were specifically underlined in the Concluding Report (p. 19).

The 2011 Resolution led to a series of meetings organized by the ICRC and Switzerland involving over 140 States (summarized here). Further consultations with other actors, including National Red Cross and Red Crescent (RCRC) Societies, were also arranged. Such discussions brought to light a series of converging elements, which represented the basis for draft Resolution 2. According to reports, the States involved emphasized their limited interest in further enhancing the abovementioned treaty-based IHL compliance mechanisms. On the contrary, a consensus seemed to emerge on the possibility of creating an institutional structure devoted to compliance activities related to the GCs and APs. Indeed, contrary to other IHL-related treaties, such as the 1954 Hague Convention, the GCs and APs do not benefit from regular meetings of Parties aimed at taking stock of and exchanging opinions on ways of enhancing compliance. Art. 7 AP I only envisages ad hoc meetings aimed at considering “general problems” regarding the application of GCs and AP I; this mechanism has rarely been applied, despite being recommended, for instance, by Resolution 1 adopted at the 26^th IC or, more recently, by the UN GA resolution 64/10 (2009).

Consultations also focused on the potential functions to be attributed to the proposed Meeting of States. In this regard the second consultative meeting of States (June 2013) could be identified as a turning point. On that occasion States dealt with a series of proposals submitted by the ICRC and Switzerland in a background document. These proposals were based on existing compliance functions operating in other areas of international law, such as: Examinations of individual and inter-State complaints; Dispute settlement functions; Country visits; Early warnings; Urgent appeals; Good offices; Fact-finding activities; Periodic reports; and Thematic discussions. It almost goes without saying that States favored only the minimal options, i.e. periodic reports and thematic discussions. The attribution of far-reaching functions to the Meeting of States was therefore excluded from the very outset. Subsequent consultations aimed to clarify the content of such functions and identify key institutional elements, although the settlement of several points was deferred to future decisions. It was on the basis of these consultations that draft Resolution 2 was openly circulated in October 2015.

The characteristics of the Meeting of States

The first element of interest in draft Resolution 2 was the way in which the MoS was to be created. According to OP 17 the IC was only to be entrusted with recommending “the establishment, by States, of a regular Meeting of States on International Humanitarian Law, with the functions and features described above, at the first Meeting of States, which the government of Switzerland is invited to convene within one year”. During the negotiation process alternative proposals were rejected. The ideas of amending the GCs or adopting a new AP were not endorsed, due to the non-binding nature of the MoS. Similarly, the possibility of the 32^nd IC directly setting it up was ruled out, partly due to the difficulties of reconciling the multifaceted nature of the IC (composed as it is of State and non-State actors) with the strictly inter-State character of the planned MoS. As a result, draft Resolution 2 merely aimed to facilitate the subsequent step to be taken by States. Furthermore, in a series of OPs, draft Resolution 2 was also intended to act as a blueprint for the identification of the MoS’ core elements.

Apart from its annual nature (OP 9), the main characteristics of the MoS were to be its non-legally binding and voluntary nature (OP 4, 5). This latter element would have represented a challenge for the effectiveness of the mechanism, as the concrete involvement of key States in the political and military sphere was entirely uncertain. Only confidence in the mechanism and States’ willingness to engage in fruitful cooperation would have permitted it to gain relevance. While membership of the MoS was to be limited, on a voluntary basis, to Parties to the 1949 GCs, draft Resolution 2 also provided for the participation of other entities as observers, such as international organizations, civil society actors and National RCRC Societies (OP 11-12), while specific standing was granted to the ICRC (OP 13). Conversely, the draft resolution left to further negotiations among States the settlement of some important issues, for instance: the creation of an institutional structure to support the Meeting of States, such as a chair, bureau and secretariat (OP 10); budgetary issues (OP 15); its relationship with the IC (OP 16).

One of the key elements of the proposed MoS, as provided for in OP 4, was the need for it “to find appropriate ways to ensure that all types of armed conflicts, as defined in the Geneva Conventions of 1949 and their Additional Protocols (for the latter as may be applicable), and the parties to them are included”. This reference rightly required that the MoS’ activities be extended to involve both international and non-International armed conflicts (IACs and NIACs respectively), even if, as emphasized below, its concrete relevance to NIACs may be questioned.

As for relevant sources of IHL, not a single line of draft Resolution 2 was devoted to this fundamental element. However, the Concluding report emphasized that “the Meeting of States…should focus on the 1949 Geneva Conventions and their Additional Protocols” (p. 19). This approach was clearly understandable, also to avoid overlapping with other related treaty obligations provided with their own institutional compliance mechanisms. At the same time, to expand the relevance of the MoS, the Concluding report emphasised that “States not party to the Additional Protocols should be able to invoke them if they so wish. The same general view was expressed with respect to other sources of IHL, including norms of a customary nature”. This stance aimed to avoid an approach strictly limited to the ‘1949 GCs’ for States not party to the APs, also by making reference to the substantive role of customary provisions in the IHL system, especially in NIACs. However, as a solution it was inherently limited by the need for a proactive attitude on the part of the States involved.

The functions to be exercised by the MoS’ were provided for in OP 8 of the draft resolution. That paragraph emphasised that “among the possible functions….. two were deemed by the consultation process to be particularly relevant…: thematic discussions on issues of IHL and periodic reporting on national compliance with IHL … (T)hese voluntary functions should be organised so as to be non-contextual and non-politicized”. As further indications were lacking from the draft resolution, additional references were provided in the Concluding report.

Under the proposed system, States were to report to the MoS. The proposal was to develop a so-called ‘basic report’ aimed at emphasising how States generally implement IHL in their domestic legal systems (Concluding report, pp. 22-26). This report was to focus mainly on an overall assessment of the implementation measures related to IHL obligations, such as dissemination activities, the appointment of legal advisers, and procedures for investigating violations of IHL, also in order to identify best practices. The possibility of preparing ‘subsequent reports’, intended both to update the ‘basic report’ and focus on issues linked to the thematic discussions, was also mentioned. In any case the review of reports would not have represented a significant form of legal scrutiny for States. Being informed by a non-contextual and non-politicized evaluation, an individual review of reports was excluded, while a preference was expressed for a single follow-up document intended to include best practices, common challenges, and/or general recommendations, while not directly pinpointing single States (Concluding report, p. 25). Also in this case the effectiveness of this function would have been unlikely, taking into account States’ notorious ‘report fatigue’.

Finally, a section of the plenary session of the MoS was to be devoted to thematic discussions among States on IHL issues (Concluding report, pp. 26-28). This section was intended to facilitate exchanges of views on States’ legal and policy positions regarding existing challenges, also in order to share best practices and technical expertise, possibly with the benefit of external inputs, such as expert presentations or background documents. However, the possibility of establishing subsidiary bodies, such as a committee of independent experts, was rejected, thus confirming the State-driven nature of the MoS. This function would have permitted States to discuss IHL topics on a peer-to-peer basis at regular intervals, thus facilitating frank debates on sensitive issues. Nonetheless, to appease States’ concerns, thematic discussions were to be non-politicized, non-selective and voluntary, and these characteristics were also to influence the possible follow-up of debates. These thematic discussions were to result in an outcome document summarizing the discussions. Also in this regard the diplomatic and non-adversative nature of the MoS was confirmed, aimed at fostering dialogue among States, rather than highlighting IHL violations.

The final text of Resolution 2 adopted at the 32^nd IC

Draft Resolution 2 was therefore an attempt to synthesise States’ positions expressed during consultations. The proposal had several merits, mainly permitting the creation of a regular forum for the discussion of IHL issues, with the inherent hope that this mechanism could gradually help increase mutual confidence among States in this area.

At the same time, it had potential shortcomings, mainly attributable to States self-restricting approach, aimed at supporting minimal options. Being of a voluntary nature, the proposed MoS would have been unlikely to attract key military-political States. The poor record of past efforts to revitalize the partially similar Meetings provided for by art. 7 AP I represents a warning in this regard. Similarly, the likelihood of the (quite limited) functions to be attributed to the Meeting of States actually enhancing compliance with IHL could be queried, since their effectiveness would have been highly dependent upon a proactive attitude on the part of participating States.

Furthermore, the development of a State-driven process, in order to create “a venue…for dialogue and cooperation on IHL issues among States” (Concluding report, p. 16, italics in the original) implied the total irrelevance of organized armed groups. That States would reach for such a solution was obvious due to political concerns, but it would have represented a missed opportunity. Past experiences at the 1974-1977 Diplomatic Conference, where national liberation movements acted as observers, emphasized the potentialities of their involvement. Perhaps certain compromises could have been adopted in the future, such as extending participation in planned panels of experts to include former members of organized armed groups involved in DDR processes. Limiting discussions on NIACs to States’ views alone can hardly provide a comprehensive perspective.

Draft Resolution 2 therefore mirrored the current minimal law-making agenda of many States regarding IHL issues, coupled with the political tensions characterizing international relations. As a result it was not entirely surprising that delegations at the 32^nd IC were unable to reach an agreement on the recommendation to create the MoS as proposed in draft Resolution 2. OP 2 of the final text merely recommends the continuation of State consultations “to find agreement on features and functions of a potential forum of States and to find ways to enhance the implementation of IHL” in view of the 33^rd IC. Furthermore OP 1 underlines a series of principles that are required to inform future consultations, such as: “the State-driven and consensus-based character of the process; …the importance to avoid politicization…; the need to…address all types or armed conflicts…;…the voluntary, i.e. non-legally binding, nature of the consultation process, as well as its eventual outcome; the need for the process and the mechanism to be non-contextualized”. The divergence of Resolution 2, as finally adopted, from the original draft version is so crystal clear that it does not deserve any further analysis, as it merely provides for an additional round of consultations among States.

We can only hope that the 32^nd IC may represent solely a temporary stop-and-go phase in the negotiation process, with Switzerland and the ICRC being ready to reiterate their tireless negotiation efforts. At the same time, it is hard to grasp what the potential final compromise may look like, as the current proposal was already a minimal option for strengthening compliance with IHL. So far we can just echo the words of the ICRC’s President, Peter Maurer, maintaining that “(i)t is disappointing that States could not agree on the original proposal, which addressed all the concerns raised during the consultation process…By failing to support this initiative, States missed an opportunity to help to protect millions of people”. The “imperative need to improve compliance with IHL” noted in the Preamble of Resolution 2 can hardly wait for the (uncertain) outcome of the intergovernmental consultation process to be presented to the 33^rd IC in 2019.