Counterterrorism, IHL and the role of military police
Good afternoon senior leaders, ladies and gentlemen. I wish to thank the People’ Armed Police for the invitation to take part in this important forum.
The International Committee of the Red Cross is mandated to help your States prepare during peacetime to meet their obligations under the Geneva Conventions if an armed conflict were to take place. When a war erupts, the ICRC’s mission is to ensure that every person affected, be that a civilian or a solidier deprived of liberty, is protected and assisted.
That is why the ICRC has been working with the People’s Liberation Army for the better part of 40 years, the last 20 of which our organization has been based in Beijing. This has included having former armed forces officers on the staff of the organization. Two of them are here today.
During that time, we have had the privilege of working with the People’s Armed Police, and some of you have already interacted with our organization. You will recall that our dialogue with the PLA is aimed at fostering an environment conducive to IHL respect, both nationally and internationally, as clearly reflected in the Global Security Initiative launched by H.E. President Xi Jinping. I also see the military police of many foreign armed forces here; and I know that ICRC is privileged to work with you in your capitals as well.
What is the nature of ICRC-military interaction? During armed conflict, we engage bilaterally and confidentially with all parties to armed conflict regarding the conduct of hostilities. ICRC provides commanders with a picture of the humanitarian effects of armed conflict, and frames its recommendations under IHL. In this sense, we act as an early warning system for the parties.
Second, the ICRC visits persons deprived of liberty in relation to armed conflict, as mandated by the Geneva Conventions. We work with the detaining authorities to ensure humane treatment on all sides.
Third, ICRC may act as a neutral intermediary when parties to armed conflict are unable to speak to each other, which is normally the case. To give one prominent example, in February 2012, ICRC intermediation allowed the release of 29 workers from the China National Water Resources and Hydropower Engineering Corporation in Sudan after eleven days in captivity. In Gaza, our role was to safely facilitate the transfer out of released hostages to an agreed upon location and Palestinian detainees in to the Gaza strip. Similar operations took place in Ethiopia, Colombia and in countless situations across armed conflicts worldwide.
And fourth, during peacetime, which we are fortunate to enjoy in China, the ICRC works with armed and security forces to encourage the fulsome integration of IHL into the operational practice of armed forces. It is an ongoing iterative process, and it takes dialogue between technical experts as well as buy-in from leadership.
This Forum is about counterterrorism. It is an extremely important topic. I wish to tell you at the outset, however, that ICRC is not in the business of counterterrorism. We have a very different function, which is to protect and assist vulnerable people during armed conflict. This function is executed on land, or at sea, as my colleague Marwa Shabbar will discuss on her panel. This function also extends to mitigating the effects of new technologies of warfare, as my colleague Andrew Carswell will discuss on his panel.
ICRC’s core functions require access to some of the most difficult and sensitive places in the world, while the shells are still falling. And we do not use weapons or military convoys to gain access to the vulnerable. Our only pass is our Red Cross emblem, and our only protection is the acceptance that we earn by constantly remaining neutral, independent and impartial.
Does this mean that we are indifferent to terrorism? Absolutely not. From our perspective, acts aimed at terrorizing the civilian population undermine the very core of the humanity that our organization stands for. Indeed, when carried out during armed conflict, terrorist acts also represent war crimes under the very Geneva Conventions that the international community has entrusted our organization to safeguard. We never cease to do our utmost to help those whom the Geneva Conventions seek to protect: wounded and sick soldiers, prisoners of war, civilians caught up in the fighting, and civilians unlawfully targeted during armed conflict.
But it is equally important to emphasize that terrorist acts may take place either during peacetime or during armed conflict. In peacetime, IHL does not govern the situation. And because of that, ICRC’s connection to the issue diminishes. We are an organization whose central mandate exists during wartime.
So to be clear, the general remarks that I make here today do not concern China’s current counterterrorism situation, nor do they concern the current situation of most states represented at this Forum. However, armed forces are trained and equipped primarily for the contingency of armed conflict, as a deterrent to others and to maintain the peace. Armed conflict may even find a peace-loving country, and ICRC’s interaction with militaries around the world is aimed at preparing for that contingency through a humanitarian lens.
When armed conflict does happen, the most important point is to recognize that IHL applies. The “Global War on Terror” that took place after 9/11 is the most prominent example in modern history. While a member of Al Qaeda may have been classified by coalition states as a member of a terrorist organization, he was also a member of a party to armed conflict, which means that they had IHL obligations: not to target civilians, to treat detainees humanely and the obligation to give access to humanitarian organizations in the field. ICRC’s job was to remind armed group of those IHL requirements, and to encourage the group to build them into their codes of conduct.
However, if counterterrorism law states that even talking to these organizations is a criminal offence, how can ICRC even do its job? This is why ICRC has been consistent ever since in its approach: please ensure that there are humanitarian exceptions in relevant counterterrorism legislation, UN Security Council Resolutions and UN sanctions. And when these organizations’ members are detained during armed conflict, please recall that IHL applies. This means that they must be given humane treatment in detention; but it does not prevent the state from prosecuting them for terrorist offences and sending them to jail for life. The two frameworks operate side-by-side and should not contradict each other.
This brings us to ICRC’s core recommendations for states that are taking measures to prepare for the contingency of counter-terrorism operations in time of armed conflict, whether at home or on expeditionary operations.
First, understand the legal framework for armed conflict. Counterterrorist terminology should never dictate the type of operations employed. If the threshold of armed conflict is met, parties to that armed conflict must apply IHL, regardless of the "terrorist" label attached to the enemy.
Second, protect the integrity of IHL in your directives on the use of force. Ensure that investigations and tactical operations during such armed conflicts distinguish between acts of terror targeting civilians—which are war crimes—and standard military engagements. In this way, members of a non-state armed group are far more likely to actually abide by IHL. Not only does the civilian population benefit, but also your own soldiers should they ever be detained by such a group.
Third, defend humanitarian space. Support humanitarian exemptions within areas of operations in armed conflict, ensuring that medical neutrality and aid delivery are never criminalized in the name of counterterrorism.
Senior officers, ladies and gentlemen,
In the context of an armed conflict, the fight against terrorism can be completely consistent with IHL. Armed forces that abandon IHL in the name of counterterrorism lose the moral high ground and legal legitimacy.
The armed forces present here are in a unique position of setting the tone for IHL respect. By legally preparing for the contingency of armed conflict, military police ready themselves to undertake operations that are effective, legal and honourable.
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