Statement by by Steve A. Solomon
Deputy Legal Adviser
U.S. Mission, Geneva

October 21, 2003
AS DELIVERED

Points on a staged approach to HR and IHL

-- Permit us to return to the issue of the IHL component of the draft guidelines. We have listened carefully to the comments made by others on this matter. We understand and are sympathetic to the point about the need for a victim-oriented approach. In fact, the approach we propose can serve this need. But while we believe there should be a victims oriented approach, we feel it makes sense as well to keep in mind the need of states to have clear and unambiguous guidance. Both requirements need to be addressed and we believe that the approach we are proposing can help do so.

-- Essentially, we propose a staged approach to the IHL/HR issue. That is to say, we propose our work focus exclusively on the human rights law content of the document during this meeting and the IHL content be considered by states in a separate forum, ideally one with established expertise in the IHL area.

-- Before I explain why we do so, let me address the question of why we are raising this at this stage of the discussions. First, the IHL concern has a history; it's really not new. The U.S. has raised its concerns about IHL in the past, for example in comments submitted as far back as November 1999. Other delegations have also raised this concern over the course of the discussions. Secondly, it has only been since last year that this consultative process has found momentum. Many were comfortable discussing remedy issues generally, including IHL, while the focus was on exploration. Now that the focus has moved to include the question of adoption, we have to evaluate what makes sense for each component of our work. Thus, our concern is connected with the most recent CHR resolution (2003/34); in particular its mandate to consider the question of adoption. We are saying, in essence, that we should be considering adoption of one part of the guidelines -- and a different approach for another part of the guidelines. There is nothing new about bodies choosing to adopt part but not all of a working document. Essentially, this is what we are suggesting and we are doing so, we believe, consistent with our mandate to consider the question of adoption.

-- So why do we favor such a staged approach to the IHL/Human Rights law issues?

-- First, IHL is itself a complex body of law. As a number of speakers have noted, IHL remedies vary depending on the nature of the conflict, whether its an international armed conflict or a non-international one. IHL remedies vary depending upon, in GC terms, whether a breach is grave or minor. The draft doesn't deal with these matters in a way, we think, that adds clarity. If we aim for guidelines that are practical and useful, we need to recognize that a significant percentage of our would-be audience will be concerned with whether the armed conflict is internal or not, as most wars today are still non-international in character with a substantially different scope of available remedies.

-- But while the law of armed conflict is by any measure complex, we are not saying there aren't areas of overlap or complementarity with the law of HR. There may well be and this is an interesting and evolving area of law in itself. We are saying, however, that the body of IHL, as such, is one outside the main competence of the CHR, just as say, refugee law is. Wouldn't we naturally hesitate to have the CHR adopt guidelines related to international refugee law? It would be regarded as an area outside its mandate, outside its expertise, outside its area of greatest credibility.

-- Although the CHR has addressed certain IHL related matters, it has generally done so in terms of assessment of factual situations, for example by SR's looking at conflict situations, and has not done so in terms of juridical pronouncements -- that is by formal acts such as adoption of instruments that summarize or organize areas of law. We fully recognize the fact that SR's have assessed situations in light of IHL. We must also recognize the relative absence of practice for the CHR organizing, summarizing or restating the international law of armed conflict in the manner we are attempting.

-- Second, we are concerned about the credibility of the product. Again, we are not saying that the guidelines relevant to IHL should be dropped. We believe they should be dealt with by a body that would lend these IHL guidelines the greatest possible credibility so they can later join the human rights guidelines (which are appropriately addressed within the CHR framework) as component parts of a practical and reliable guide to the mechanisms in each area.

-- Finally, we are concerned that if the CHR adopts guidelines which in significant part purport to organize principles of IHL (a body of law outside the CHR's core competence) it could set an unhelpful precedent. There is regular pressure already for the CHR to deal with law-of-armed-conflict related legal questions and issues. Isn't there cause for serious concern about the possibility of such matters burdening the already overtaxed agenda of the CHR -- pushing out less sensational but perhaps no less serious human rights issues that often only get heard during the Commission?

-- In short, if the agenda of the CHR is opened to a broad range of IHL legal questions and issues, many human rights matters that have to fight for time will face even greater resistance. The human rights agenda of the CHR will be weakened, not strengthened.

-- In sum, we believe we should address the IHL aspects of ensuring that victims right to remedies are fully understood. But we are saying address both aspects, HR and IHL, using the most competent body for each so that the end result is a package that has the greatest credibility and utility. Such an approach will, in our view, best serve the interest of victims under both bodies of law.

Contingency Point (This was not used today.)

-- Some point in response to the CHR's work on minimum humanitarian standards but as we have seen that exercise was focused towards elaborating fundamental, core protections in all situations, regardless of how they were characterized. That was not an effort to restate or develop the law of armed conflict/IHL, by any means. In fact, it's proponents often promoted it by distinguishing it from IHL as such. And what of the Child Soldier's Protocol? Isn't that IHL? In our view it is at its core a human rights instrument. The protocol sets out rules for states w/r/t their own nationals -- their own children. It essentially provides that a state may not use or recruit children into its armed forces. Not only have children been a matter of longstanding and special concern for the CHR, but as HR law is fundamentally law that regulates a state's actions w/r/t its own nationals, the Child Soldiers Protocol is quintessentially an instrument of human rights.