Commentary: Ambassador Miguel Ruiz-Cabañas, Permanent Representative of Mexico to the OAS Thank you, Dr. Antón Camen, Legal Adviser to the ICRC for Latin America, for your interesting presentation.
I would like to begin by saying that the Government of Mexico is grateful for the opportunity to present its comments on this topic, with which we are beginning this very important meeting that brings us together today.
As to the progress with IHL, we must recall that, since the second half of the 20th century, this specialized field of international law has been considerably reinforced. There are a great number of international instruments, such as declarations, resolutions, and guidelines that have been developed to strengthen its application and observance.
A great number of treaties have been adopted, and international tribunals have been created with the power to punish the perpetrators of severe violations of IHL rules. On this latter point, establishment of the International Criminal Court surely constitutes the greatest concerted effort of the international community to prevent the persistence of severe violations of IHL. Thanks to its permanence and its power to judge individuals, among other aspects, this tribunal represents an unprecedented step forward in efforts to ensure respect for IHL.
The four Geneva Conventions of 1949 now have universal membership and, together with the Additional Protocols of 1977, they constitute the cornerstone of IHL. It is important to remember, in this regard, that the majority of the provisions of those instruments are part of customary law.
Moreover, the international community has a series of instruments for pursuing humanitarian objectives, including treaties that prohibit the use of certain arms or military techniques during hostilities.
Despite these achievements, there is still much ground to cover. The current status of IHL obliges us to recognize that the main difficulties lie with observance. Efforts to publicize its rules and to promote the approval of domestic laws have proven to be inadequate and in practice have had limited impact.
We are discouraged to see that at the present time it is the civilian population who are the principal victims of hostilities.
Indeed, the number of violations of humanitarian rules committed during hostilities was one of the reasons behind the design and establishment of international tribunals.
Today, the international community is more aware of the importance of respecting and enforcing IHL, but the issue generates divisions over the best way of doing so. It is a fact, nevertheless, that the excessive leeway with which states have interpreted and applied the rules, together with the lack of any effective control system, have rendered IHL a dead letter on occasion.
At the same time, no one can deny the challenges inherent in enforcing IHL, given the dynamics of current conflicts. On one hand, there are conflicts that involve a proliferation of non-governmental players, who have little or no interest in respecting the minimum rules for the conduct of hostilities. On the other hand, technological progress has also had its impact on the battlefield, raising questions about the application and scope of existing rules. Finally, the misnamed "war on terrorism," which is taking place quite beyond the scope of traditional armed conflict, has given rise to some dubious concepts that result in leaving persons unprotected.
In this scenario, efforts to strengthen respect for IHL and to reduce the possibilities for discretionary interpretation on the part of states take on new meaning. We must not forget that any interpretation of this branch of law must be guided by the principles of humanity and the dictates of the public conscience.
Under these conditions, we may ask whether it is possible to develop IHL.
As a general rule, any set of standards can be developed. In fact, in this area there are a number of issues, relating in particular to the use of weapons, that could benefit from further study. Yet developing the basic principles of IHL is something that must be approached with caution.
It has taken decades to make states aware of the importance of IHL. The negotiation of its basic instruments was preceded by enormous efforts. Any initiative that might be seen as an attempt to amend such consensus could be counterproductive.
It has been noted that some provisions of IHL are inadequate in light of new conflicts, and certain provisions have come to be interpreted on the basis of national security interests.
We must recall that IHL is broad. If it is applied in good faith, and in accordance with the objectives pursued, it can resolve any situation that may appear in the field. Therefore, efforts to improve its application must start with this premise.
The foregoing does not mean abandoning any attempt to facilitate application of the existing rules of IHL. It simply requires that we define clearly its parameters and scope. The idea of compiling best practices of states could be a viable alternative.
Of course, the possibility of new mechanisms for strengthening the observance of IHL should not lead to the abandonment of conventional methods. Moving towards universality in the treaties, encouraging parties to adapt their domestic legislation, expanding the channels of dissemination for IHL, and fostering greater awareness about the importance of preventive measures–all of these are areas that should continue to be pursued.